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The Center Cannot Hold

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I have a quasi-longform up at the New Republic about the Supreme Court during the Obama administration and the forthcoming period of transition. My two central points are that 1)although there were some big liberal wins and Obama’s legislative agenda mostly survived intact, we shouldn’t forget how conservative the Roberts Court has been and 2)the Court is about to take a major lurch to the left or right:

The chief justice’s defense of Obamacare marked a high point in the Court’s deference to the legislature and common sense. It should be noted, however, that the legal challenges to the ACA were not entirely unsuccessful. Combined with the actions of Republian statehouses, the Court’s inept and illogical re-writing of the Medicaid expansion in Sebelius has denied health care coverage to millions of poor people. We also shouldn’t forget the Court’s 2014 decision to strike down the mandate requiring employers to provide contraceptive coverage as part of taxpayer-subsidized health plans.

Still, the fact that the Court mostly upheld the Affordable Care Act, combined with major victories on gay and lesbian rights, abortion, and affirmative action, suggest a Court that is politically unpredictable and more capable of compromise than the political branches. But it would be unwise to assume that past results will be repeated in the future.

With the admittedly crucial exception of Sebelius, the liberal victories of the Roberts Court were due to one man: Anthony Kennedy. This isn’t surprising. Since early in the Nixon administration, the median vote on the Court on the most politically salient issues has been a Republican, but a moderate, country-club Republican: Potter Stewart, Lewis Powell, Sandra Day O’Connor, and now Kennedy.

The issue going forward is that this kind of Republican is rapidly going extinct. (It is no coincidence that Kennedy was Ronald Reagan’s third choice, after a disastrous attempt to nominate arch-conservative jurist Robert Bork.) As Donald Trump’s list of prospective judges indicates, future Republican nominees are going to be in the mold of Samuel Alito and Roberts, not O’Connor and Kennedy. This will be true for two reasons: A Republican president will face intense pressure from the Republican conference not to pick “another Souter,” and a Republican president may have a hard time finding a fairly young, moderate Republican judge to nominate even if he wanted one. The political scientist Amanda Hollis-Brusky, author of a definitive recent study of the conservative legal group the Federalist Society, says the group “performs the dual function of vetting and credentialing judges, as well as acting as a vocal audience pressuring Republican presidents to pick reliable conservatives.”

As the University of Maryland law professor Mark Graber explained in a recent paper, the Supreme Court has historically been a centrist institution. But the tendency of the Court to represent, for better or worse, the political center was not inevitable. It stemmed from the fact that elites—from whose ranks Supreme Court justices are generally chosen—tend to have less polarized views than ordinary members of the party.

In 2016, however, exactly the opposite is true: Party elites are much farther apart than voters are. Donald Trump’s rise is, in part, a reflection of the increasing gap between the GOP’s elites and its voters, exemplified by his blasé attitude toward conservative orthodoxy.

A decade from now, the Supreme Court will almost certainly not be controlled by either a moderate Republican like Anthony Kennedy or a heterodox liberal like Byron White, a JFK nominee who dissented in Miranda v. Arizona (which established Miranda rights) and Roe v. Wade (which established the right to an abortion). The median vote on the Court will almost certainly be a conservative in the mold of Alito or Roberts, or a liberal in the mold of Ruth Bader Ginsburg.

…as Joe points out in comments, this Linda Greenhouse piece on the asymmetric polarization of the Court is important related reading.

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  • Joe_JP

    Good companion reading to the latest Linda Greenhouse.

  • Yossarian

    God damn, Obama looks young in that pic.

    I could just look this up myself, but are you aware of any pieces analyzing how HRC’s potential SC picks might differ (if at all) from Obama’s “type” of justices? Every time a position on the Court has opened up in the past eight years, we’re seeing roughly the same shortlist, and I just wonder if there’s any particular reason to think that Hillary’s list might look a little different.

    • Scott Lemieux

      I think they’ll be pretty similar.

      • Yossarian

        Yeah, I agree. Maybe some different criteria in making the ultimate decision, but the same basic pool of people.

        • Scott Lemieux

          And part of it is that most plausible candidates from Team Democrat are pretty similar. Even Garland would vote with RBG like 90% of the time.

          • Incontinentia Buttocks

            But 10% is not nothing. Don’t you think it’s possible that the median vote in a decade will be a Garland, not a Ginsburg (not a huge difference, but a real one)? Democratic nominees are far from automatically good on, e.g., 4th Amendment issues. Kennedy, Breyer, and Ginsburg are the three Justices over 70; Breyer, the youngest, is 77. All will likely be gone on a decade. The younger justices (the oldest of whom is Thomas at 68) may well still be on the Court. So with Scalia’s slot that’s four new Justices on that 2026 Court. If they all get replaced by Democratic appointees, the median vote on that Court may well be like Ginsburg. But if one of them gets replaced by a Republican, it will be a 5-4 Court (with the majority Democratic appointees) and my guess is that the rightmost Democrat (i.e. the median vote) may, in that case, well look more like Breyer or Garland than like RBG.

            • Scott Lemieux

              It is possible, but not likely (especially assuming Breyer will resign during the Clinton administration.) Garland wouldn’t have been nominated under normal circumstances. Clinton might re-nominate him but my guess is that she won’t, and the Breyer/Garland squishiness on the 4th Amendment is becoming increasingly anachronistic.

              • Is there a book anywhere on Garland’s chances of confirmation? Senator Jeff Flake, an enemy of Trump, was musing out loud about the possibility of confirmation hearings in October if Trump’s presidential campaign looks doomed then. Since it’s looking doomed today – before the conventions, before a formal exit by Sanders, and before the VP picks – the scenario is in fact very plausible, and Flake’s reasoning is sound from the POV of Senate Republicans hoping to save something from the wreckage.

                • Ahuitzotl

                  but we have it on good authority that Flake will be voted out in November (despite not being up for re-election), so the Senate wont take him seriously

      • LosGatosCA

        How many graduates are there from Yale, Harvard, or Stanford who are currently on appeal courts who were appointed by Clinton or Obama who are in their late 40’s, early-mid 50’s?

        Obama has made some qualifying appointments.

        1st – 1
        2nd – 0 (1other from NYU)
        3rd – 1 (1 other from Penn)
        4th – 1 (1 other from WV Law)
        5th – 1
        6th – 0
        7th – 0
        8th – 1
        9th – 2 (2 others from UCLA)

        7 Elite qualified possibilities total + 5 non-elite qualified judges

        Sure there are other very select sources (ex. solicitor general) but the populations there are even smaller.

        So the question isn’t really a difference in the lists, but which specific finalists will be selected.

        If Hillary has the opportunity to make 4/5 choices I’d really like to see her diversify beyond Yale/Harvard/Stanford law.

        Pick some REAL FUCKING PEOPLE – no disrespect to the existing Democratic appointees intended.

        • Incontinentia Buttocks

          Somebody with experience in criminal defense might be a very useful addition to the Court.

  • Yossarian

    I hasten to add, Obama’s shortlist has been pretty strong, so I’m not complaining about the continuity.

  • ChrisS

    the Court is about to take a major lurch to the left
    please please please please please

  • Denverite

    Great piece.

    A little OT, but I was thinking about this on my run this morning. Assume the following scenario:

    Clinton wins in a relative landslide (55-45 or so). Democrats take back the Senate by a few seats. Republicans hold the House. Clinton nominates someone left of Garland, the Republicans in the Senate filibuster, and the Democrats nuke the filibuster for Supreme Court nominees. The nominee is confirmed. At some point in the first year, the economy tanks. Clinton’s polling is in the toilet, and it looks inevitable that the Democrats will lose the Senate in 2018. Ginsburg and Breyer promptly announce their retirements, and the Democrats rush through two new Supreme Court appointments in advance of the 2018 elections. The Republicans win back the Senate and expand their lead in the House, and they look very likely to win the White House in 2020.

    What happens at that point? Impeachment proceedings against sitting justices? A court packing bill if they win the presidency in 2020? There’s no way they’d sit still with a liberal Court in which Sotomayor or Kagan is the median vote, would they?

    • Davis X. Machina

      Court packing is much more likely. The GOP don’t do norms.

      Or impeachment, but without removal. Those loons in the House will do anything — and that only requires a majority. But 2/3 of the Senate?

      • so-in-so

        I’m sure McConnell will discover a “tradition” of not considering appointments while the House is considering impeachment – which they will be doing for four-to-eight years, depending.

      • Scott Lemieux

        Right. Court packing just requires a majority, but removal requires votes in the Senate they don’t have. If they wanted to play constitutional hardball, that’s where they’d go. (Impeachment would be sort of Potemkin constitutional hardball, trying to show their constituents they’re serious about attacking the Court but not doing it materially.)

      • McAllen

        If court packing is the strategy what, long-term, does the Supreme Court end up looking like? A two-hundred member court that rubber-stamps whatever party currently holds the legislature?

        • Denverite

          I would imagine that it would take the same basic form as the FDR proposal — for every justice that stays past a certain age or tenure, the president gets to appoint a new justice, with the old justice’s spot expiring when she dies or resigns.

        • Scott Lemieux

          Well, this is why the norm against Court-packing has held for more than a century — it’s a short-sighted strategy. But that doesn’t mean Republicans won’t do it.

          • Linnaeus

            What’s funny about that is that some Republicans accused Obama of “court-packing” just for submitting nominees for existing federal court seats that were vacant.

            • so-in-so

              “Say anything” is the guiding “principle” there, I think.

              • LosGatosCA

                Say, try, do, imagine out loud anything is their call to idiotic action.

                The nastier, the stupider, the more insane the better.

    • Thom

      It looks to me like RBG is determined to go out on a stretcher.

      • Denverite

        I’d put good money on her leaving if it starts to look like the next chance at a Democratic nominee being confirmed (after 2018) is 2025 or later.

        • Scott Lemieux

          I dunno. I think it’s pretty clear that RBG will only leave if she thinks she’s no longer capable of doing the job at a high level. If she believed in strategic resignation she wouldn’t be on the Court now.

          • Denverite

            It’s one thing to choose to tough it out at 80 when you think there is a better-than-even chance that your party retakes the presidency in 2016 (i.e., RBG immediately post-2012-election). It’s another when you’re 85 or 86 and it looks like your party won’t win in 2020 (i.e., RBG in my hypothetical).

            (This is all apropos the recent talk that a recession is more likely than not in the next few years, plus the enormous headwinds that any party running for a fourth term face.)

            • Scott Lemieux

              I really think RBG takes the idea that Supreme Court justices shouldn’t do ordinary partisan politics seriously. In addition, the Democratic Party certainly has a better-than-even chance of winning now, but that wasn’t obvious when resigning and being replaced was still possible.

              • Murc

                I really think RBG takes the idea that Supreme Court justices shouldn’t do ordinary partisan politics seriously.

                This.

                And I’ll go one step further; not considering the circumstances of your replacement, regardless of your ideological stances, makes bad at a very important part of your job. A responsible jurist who thinks they’ve been ruling wisely has a responsibility to ensure their decades of hard work aren’t washed away overnight, to the extent they’re capable of influencing that.

                “Do they have the intelligence and humility to get out at the proper time?” should be one of the very important questions any President asks themselves about their appointees.

                • LosGatosCA

                  I really think RBG takes the idea that Supreme Court justices shouldn’t do ordinary partisan politics seriously.

                  Just another data point that these folks aren’t as smart as everyone and themselves think they are.

                  ETA: You would think SD O’Connor’s regrets would inform the rest.

    • Lamont Cranston

      According to this article there is a 32% chance Kennedy dies by 2021, and a 16% chance Thomas dies.

    • petesh

      Hang on, you are making soup out of the carcass of a roast chicken whose great-grandmother hasn’t been hatched yet.

      • yeah, it seems just a bit early to be conceding the 2020 election…

        • Scott Lemieux

          Particularly based on “fourth-term headwinds” derived from meaningless small-sample patterns from a completely different partisan era. The economy would have to be pretty terrible for Ted Cruz or whatever nut the GOP throws up in 2020 to be favored in the Electoral College.

          • Are you telling me that when Tom Cotton wins the nomination in 2020, he’s not going to convince Latinos to vote Republican?

            • Scott Lemieux

              When he nominates Joni Ernst as his VP, it will be in the bag!

            • Gregor Sansa

              This is an important point. Latinos will probably forget Trump in 16 years or so. They won’t in 4. And as long as they don’t, Republicans have a very hard time winning the Electoral College.

              • The Lorax

                They still remember Prop 187 here in CA. That was over 20 years ago. Or, at least, they are certain that the GOP is the party that doesn’t like them. And that began with Prop 187.

            • Ahuitzotl

              Cotton will be too moderate for the party by 2020. Louis Gohmert will be a centrist at that point.

          • Thrax

            I strongly expect the 2020 nominee to be Paul Ryan. He’ll have lost some base cred by then with the inevitable compromises over the budget (though, ironically, it would be in his interest for things to go so far south in 2016 that the GOP loses the House, as no further concessions to sanity would be necessary), but I suspect he’ll have enough base support to win the nomination.

            Whether he’ll win the general is tougher and will depend on how bad the economy is/how significant the Clinton scandal-of-the-week sounds. But I wouldn’t assume that Ryan will be as hopeless in the general as, say, Cruz would be.

            • Scott Lemieux

              If Ryan can win he’d be better than Cruz, but not good. And as someone said above Trump won’t be on the ballot but the effects of the backlash against the GOP he’ll generate will still be there, in an electorate that’s significantly less white.

              • The Lorax

                Yep. Trump will be the gift that keeps on giving. Just as Prop 187 is here in CA.

          • Denverite

            Deutsche Bank is forecasting a 60% chance of recession through 2017. I have a really bad feeling about 2020.

            • Scott Lemieux

              A recession that ends in 2017 would be Excellent News for Hillary Clinton’s re-election chances, and the Democrats are losing the Senate in 2018 anyway.

              • Rob in CT

                Yes. If we’re to have a recession during HRC’s first term (and that seems relatively likely), let’s get it over with in 2017. Hell, in 2017 we have a shot at a Dem senate, so even though the GOP will have the House there is a non-zero (but very small) chance of some kind of stimulus.

                If it happens in 2019, oh fuck oh fuck oh fuck.

                • petesh

                  Oh, it’s OK, Britain will be Great again and glad to take us back.

                • JKTH

                  Yeah, basically a 2017 recession is what Reagan faced (although he had a Fed with a lot easier time gaining traction since it just had to reverse itself on interest rates). A 2019 recession is more like Bush I.

                • Rob in CT

                  Right, the ’82 recession was fed-induced and there was a strong snap back once the Fed loosened up.

                  Modern recessions don’t work that way, and the Fed will have basically nothing it can do to counter a recession b/c they’re already guns-a-blazin’ just to keep up modest growth.

                  So the earlier the better. Like, literally things should go sideways in December 2016. And we hope for a relatively mild one, of course.

          • LosGatosCA

            It TR didn’t go Bull Moose 1n 1912 the Republicans very likely move right through that and 1916 to chalk up presidential victories in 96,00,04,08,12,16,20,24,28 for nine straight victories. In any case, from 1860 – 1928 they had 14 wins in 18 presidential elections. Which was followed by 5 consecutive wins by the Democrats (1932-48).

            I think the fact that it’s very hard for incumbent VP’s to succeed their own 2 term admins/presidents (ex. Nixon, Humphrey, Gore – Bush I the exception) gets conflated with the consecutive terms issue.

            The current demographic trends combined with Republican insanity are a long term dynamic that will be very hard for them to overcome any time soon.

    • Thrax

      Agree on court-packing; a court-packing bill could be filibustered (assuming there are 41 Democrats who would filibuster; I think there would be unless 2018 and 2020 are total wipeouts), but that would probably lead to the elimination of the filibuster for legislation.

      Note as well that Scalia’s seat is likely to remain vacant indefinitely if the Democrats don’t retake the Senate (or if they win it so narrowly that they have to count on Joe Manchin to vote to nuke the filibuster). I’m betting there will be at least 41 GOP senators who will not vote for cloture on anyone Clinton nominates. If a Republican is elected in 2020 and the Senate is still in Republican hands (with less than 60), that’s when the filibuster for judicial nominees will be nuked.

      • Gregor Sansa

        Republicans behaving badly is a safe bet. The voters meekly going along isn’t.

        • Thrax

          Maybe. I fear “this senator hypocritically abused the Senate’s procedural rules” and “this senator went along with a Supreme Court packing plan” have limited salience for a lot of voters.

      • The Lorax

        Why would they need a bill to pack the Court? Just keep nominating Thomases and confirm them.

        • Thrax

          Denverite’s premise was that Clinton fills the Scalia vacancy, and then Breyer and Ginsburg retire and Clinton replaces them too. At that point, there are five relatively young liberal justices on the court, all of whom could easily serve another 20 years, and a GOP president taking office in 2020 might get to fill Kennedy and Thomas vacancies but wouldn’t be able to budge the five. Denverite posits, and I agree, that a GOP Congress would pack the court by adding new justices (i.e., increasing the size to 11 or 13), but that is done by statute and a statute is subject to filibuster.

    • efgoldman

      Clinton wins in a relative landslide (55-45 or so). Democrats take back the Senate by a few seats.

      That’s also why, under this scenario, it’s really important for HRC to appoint, and the senate quickly to confirm, judges for all the district and appeals court vacancies.
      First, most lower court decisions aren’t heard by SCOTUS, even if appeal is requested; also, there aren’t enough judges generally for the volume of federal cases.

      • Aaron Morrow

        it’s really important for HRC to appoint, and the senate quickly to confirm, judges for all the district and appeals court vacancies.

        Good point. I don’t know whether Leahy will remain in the Judiciary Committee or take the Appropriations Chair, but it matters a great deal or not how the Judiciary Chair chooses to deal with blue slips.

      • One if the few real flaws in Obama’s presidency has been dilatoriness in appointments. GOP opposition to confirming some of them is no excuse. It is much more important to propose competent people for all the slots as soon as practicable than to seek total security against minor skeletons in cupboards. HRC is a very efficient administrator, and less risk-averse than Obama if I read her correctly. With luck, she could publish a full list of nominations to every vacant job the day after her inauguration. She has plenty of time to prepare this.

  • bratschewurst

    I seem to be the only person following Friedrichs who believed that Scalia would not vote with the plaintiffs. I guess we won’t know for many years, if ever, what he intended to do.

    But we do know this much: in his dissent in Lehnert, he gave the most cogent defense of the constitutionality of the agency fee that anyone has ever written. It was brilliant in its simplicity and clarity. Maybe he would have completely reversed himself in Friedrichs; he wasn’t nearly as consistent as he claimed. But he rarely did a blatant on-point 180. The one ray of sunshine, if he had, would have been Ginsburg’s evisceration of his vote. I think being shown up so publicly as reversing himself so completely would have been a hard pill for him to swallow, given his insistence about how consistent a judge he was.

    We also know that he could have voted to overturn Abood 2 years earlier in Harris v. Quinn, but didn’t. Alito’s opinion for the majority looks, for all the world, like a flat-out reversal of Abood that, at the last moment, was forced to make a hard left. The best guess as to why was Scalis’s highly skeptical questioning of the plaintiff’s attorney about the effects of overturning Abood on the ability of government to manage its workforce. There was nothing in what Scalia said during oral argument for Friedrichs that suggested he had abandoned those concerns.

    • Ahuitzotl

      you seem to think Scalia felt some obligation to be honest, or stick to principles he enunciated in earlier cases. I see no evidence to suggest that this is the case, his arguments seemed to always be about partisan judgement.

  • Frank Wilhoit

    The Court has already lurched to the left because, as we saw at the end of the term just ended, Scalia was good for about 3.5 votes and only one of those remains. Scalia himself was one vote; Thomas was the second (this is what has not changed and will not change); Kennedy was the third; and Roberts was the half. It is impossible to think that Kennedy would have voted as he did in the Texas case if Scalia had been looming over his shoulder.

    • Scott Lemieux

      It is impossible to think that Kennedy would have voted as he did in the Texas case if Scalia had been looming over his shoulder.

      This is completely not true. Scalia spent hours and hours trying to get Kennedy to change his vote in Casey and failed. And the suggestion that Thomas is just Scalia’s puppet is not merely demonstrably wrong but offensive.

      • vic rattlehead

        I was gonna chime in with precisely this anecdote. I have attacked Kennedy’s intellect and writing in the past, but he’s not a pushover. No one on the Court is. You have to be pretty hardheaded to be an appellate judge, it seems.

        Thomas has his own unique (if highly eccentric and batshit insane) judicial philosophy. Those who not so subtly imply that Scalia was his puppet master with his hand up his ass for 25 years either aren’t as knowledgeable as they pretend to be or racist. Or both.

        And for the record I do like Thomas’s writing style. I might want to punch a hole in the wall when I read one, but they’re usually (contra the purple prose prone and sloppy thinker Kennedy) pretty cogent.

        • Denverite

          And for the record I do like Thomas’s writing style. I might want to punch a hole in the wall when I read one, but they’re usually (contra the purple prose prone and sloppy thinker Kennedy) pretty cogent.

          This. I prefer Roberts and Kagan’s writing (and the former to the latter, primarily because I prefer really-good-appellate-lawyer writing to really-good-law-professor writing), but they’re all three on the shortlist for “best Supreme Court Justice writer in the past century” in my book.

          (Thomas’s former clerks also seem a lot more interesting and nuanced — and, TBF, smarter — at least in my limited interactions with them.)

  • burnspbesq

    Lemieux:

    the Supreme Court left in place a lower court ruling that the president’s DAPA immigration program … was illegal.

    No, it didnt. It left in place a preliminary injunction pending a disposition on the merits in the District Court. There has been no determination that DAPA is illegal.

    Would it kill you to learn a little basic Civ Pro?

    • Thom

      “…kill you to learn a little Civ Pro”

      As I recall, it was a near-death experience.

    • Denverite

      Also, at least the Fifth Circuit opinion was solely based on APA/notice-and-comment rulemaking grounds. There’s nothing stopping the administration from dotting those “i’s” and crossing those “t’s” and repromulgating the challenged rules.

      • Joe_JP

        did it make a mistake not doing it at the beginning or before now?

        • Denverite

          yes

          • Joe_JP

            figure there was some logic to it

            • Denverite

              “We’re the INS and you can go fuck yourself” is a *kind* of logic.

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