Marty Lederman identifies the two crucial pieces of data from the first full term of the Roberts Court. The first is that “[f]ully a third of the court’s decisions, more than in any recent term, were decided by 5-to-4 margins”
Depressing, if not in the least surprising.
Meanwhile, several bloggers have noted this comedy gold from the Washington Post, in which it consistently decries the inevitable results of the confirmations it supported. What’s striking about the editorial endorsing Alito is that despite some hemming and hawing it doesn’t really take the Althouse/Taylor tack of asserting that he’s a “moderate” on the basis of no evidence whatsoever, although there is some nonsense about Alito favoring judicial restraint (still foolishly assumed to be a conservative trait in the wake of Bush v. Gore, the “sovereign immunity” cases, etc. etc.) Rather, once you boil off some nonsense about how judicial restraint would be great “if applied apolitically” (And a pony! What this has to do with a longtime GOP operative who impressed the administration with a voting record of remarkable conservative consistency I can’t tell you), the argument seems to be that given some minimum set of qualifications the President is entitiled to get anyone he wants confirmed. As a commenter at Ezra‘s puts it with exquiste Broderite vacuity, “[t]he standard view has been that neither the President or the Senate should have specific political litmus tests, but neither ignores ideology either.” (What this will mean in practice since the terms mean nothing, of course, is that when the Bush administration selects a judge who casts conservative votes in virtually every contested case, has a long-time history of expressing reactionary legal views, etc. they want someone “broadly conservative,” but if the Senate objects to this they’re applying a “litmus test.”)
Obviously, this is silly. The Senate should limit itself to qualifications…at exactly the same that Presidents start picking nominees at random from a list of well-qualified ABA judges. Otherwise, it’s entirely resonable for the President to consider ideology, and it’s entirely resonable for the Senate to consider ideology. A President is due considerable ideological deference on cabinet appointments, but not on lifetime appointments to a third branch of government. If you disagree with Alito’s legal views, you should oppose his confirmation by the Senate. And if you think that because Alito went through the Senate the GOP will give the next Democratic unlimited deference to choose a qualified justice I hope you’ll let me guard that new shipment of i-Phones for you.
Ah, the travails of the (ex)-warblogger for whom everything is World War II again and again.
I also think this a good point about Powell:
Think about Colin Powell, once arguably the most respected man in the United States. In 2003 Bush sent Powell to the U.N. with a bunch of fuzzy pictures and a scary story to sell the Iraq War. That nonsense being now exposed, Powell’s a joke. No one’s ever going to talk about him running for President again.
Like a lot of other people, Powell has mildly turned on the Bushies. But like the late protestations of Sullivan, Reynolds, and Noonan, Powell’s gripes count for nothing but a bit of post-facto positioning, a quick step into a doorway just as the dawn breaks.
Given that he was the one person who could possibly have stopped the fiasco, the amount of credit Powell deserves for ex post facto criticisms of the war is “absolutely none.” Putting some misguided conception of “loyalty” to crackpot incompetents over the interests of one’s country is worthy of no respect whatsoever. If Powell’s disgrace at the UN makes him a permanent laughingstock, that’s as it should be.
I especially like panel #5. Speaking of which, Orson Scott Card has decided to take time off from writing political “novels” so subtle they make Atlas Shrugged look like The Charterhouse of Parma to favor us with an twelve-billion word essay recycling the most specious warblogger World War II analogies from 2004. If only the damned Some Guys With A Sign Somewhere didn’t want to surrender like Chamberlain everything would be OK!
A friend still in Seattle emailed recently to note that the Mariners’ surprisingly good season was a mixed blessing, in that it probably wouldn’t be good enough to make the playoffs but good enough to save the jobs of the hapless Bavasi and Hargrove. Well, at least in the latter case, apparently that’s no longer something to worry about. Having said that, though, one can’t be happy about the circumstances of a manager resigning in the midst of a long winning streak; hopefully it’s nothing too dire.
I’ll have more substantive comments on the post (and the Greenhouse article, and the WaPo‘s ridiculous “we’re strongly opposed to the rulings that were made utterly inevitable by the justices we endorsed” editorial stance) later. But I wanted to have some fun this comment from Lederman first:
even when it means a very heatedly divided Court, and when (as in Leegin, WRtL and elsewhere), it requires de jure or de facro overruling of past cases.
I wonder if that’s a typo? Either way I think that it could come in handy in describing a depressing amount of future Roberts Court jurisprudence. A case, such as Carhart II, in which the Court makes a farcically trivial or specious distinction in order to avoid formally overruling a precedent is a “de farco overruling.” I like it!
Jonathan Zasloff beat me to Cass Sunstein’s discussion of Roberts and Alito’s “minimalism,” but since I’m working on and thinking about a scholarly article about it I thought I’d add my two cents. Sunstein’s basic point — that Alito and Roberts cast pretty much the same votes as Scalia and Thomas but are less interested in theory and write narrower opinions — is true as far as it goes. But when they vote to nominally “preserve previous decisions,” one has to ask exactly what is being preserved. The clear and explicit overturning of landmark precedents a la Lawrence is rarer than one might think; the New Deal Court, for example, often overturned precedents sub silento, and the Warren Court’s overturning of Plessy happened the same way (strike down segregation in a case emphasizing that education was unique and therefore not controlled by Plessy, and then just cite the case to overturn other types of segregation with no further explanation.) Rehnquist’s strategy was to hollow landmark Warren Court precedents rather than explicitly overturning them, and he tried to do the same thing with Roe. Upholding the precedents means something only they retain actual content. As Zasloff argues with respect to the nominal upholding of Flast v. Cohen, the centerpiece of Sunstein’s argument:
This is really grasping at straws. Does Sunstein really think that the next time taxpayers sue over a legislative appropriation, Alito and Roberts will gravely uphold standing, saying that they are bound by the precedent? If so, I have a bridge in Brooklyn to sell him. No–they will find some other meaningless distinction to show that there is no standing here, either. The distinction that they insisted on here actually cut against their argument: it makes MORE sense for there to be standing with an executive action, because the President is much less accountable to the public than Congress is. (If you don’t like something that the government is doing, whom do you call: your Congressman or the White House?). Besides, it’s easier to overrule a precedent simply by depriving it of all of its force: this is precisely what Roberts and Alito will do with Roe.
Right. And, of course, this is even more striking with the “upholding” of Carhart in Carhart II. As far as I can tell, what’s been preserved is “a woman’s right not to be burdened by an arbitrary abortion regulation if anyone is dumb enough to pass a law that’s exactly like the Nebraska statute.” (And since Kennedy found that statute constitutional anyway, almost certainly not even that.) What matters here is not the (laughably disingenuous) characterization of precedents but what the decision actually did with the statute and why, and the Court’s accepting anachronistic assumptions that no matter what the data says women must be crazy to want to get an abortion as a legitimate state interest will obviously give the states more leeway to regulate a woman’s right to choose. A couple of other points:
- As I mentioned yesterday, while Sunstein likes to tout the democratic advantages of minimalism, I think there are real democratic costs to the kind of disingenuous hair-splitting employed by Alito and Roberts. Moreover, the democratic advantages of narrow rulings are inhere only if they actually reserve real legislative authority (or a right to sue that might actually be recognized or whatever.) Accountability is best served by candor (and, yes, I would say the same thing about the Warren Court’s post-Brown desegregation jurisprudence.)
- I don’t mean to suggest that narrow holdings are never relevant, only that they can’t assumed to be and that we shouldn’t just take the Court’s word for it. While I remain skeptical that Kennedy himself will ever find an affirmative action program that will pass muster, failing to overrule Grutter has at least some consequences even as Bakke is reduced to less and less. Having said that, though, it’s important to remember that Alito and Roberts’s lack of interest in legal theory cuts both ways. The rare cases where the justices differ in their votes are likely to be cases where Scalia and Thomas cast more “liberal” votes. While, as we’ve seen, their commitment to “originalism” doesn’t constrain them on the issues that matter most to them, there are others — punitive damages, the 4th Amendment, 6th Amendment right to a jury trial, etc. — where they will vote with liberal justices. With the similarly reactionary but more pragmatic Alito and Roberts. conversely, there’s nothing that will cause any unpredictability.
At any rate, the first term demonstrates Roberts and Alito to be doctrinaire conservatives just as their records predicted, and the most likely effect of their “minimalism” is to do most of what Scalia and Thomas want to do in a more politically palatable manner.
I have an article up in TAP about the affirmative action cases and “originalism.” The cases make clear that for even justices who occasionally practice it rarely gets in the way of strongly held policy preferences:
Affirmative action cases pose a similar but even more difficult problem for conservative originalists. It is implausible in the extreme to claim that the equal protection clause was generally understood, at the time that Congress was creating the Freedman’s Bureau, as prohibiting even remedial or otherwise benignly intended racial classifications. And neither Scalia nor Thomas has even tried to make a serious historical argument to this effect. Rather, they make policy arguments or speak in abstract terms about the principle of “color blindness,” a principle that is consistent with but hardly compelled by the 14th Amendment’s broad language.
And that’s even not the worst of it. Consider the case of Adarand v. Pena, in which Scalia and Thomas found a blanket constitutional prohibition on federal affirmative action. The problem for originalism here is even more grave, because the 14th Amendment doesn’t apply to the federal government. And if it’s a stretch to say that the equal protection clause was originally understood as prohibiting all racial classifications, it is absolutely farcical to read this principle into the due process clause of the 5th Amendment, which was ratified when the Constitution protected slavery. Whatever its independent merits, then, the Scalia/Thomas position on affirmative action has nothing whatsoever to do with originalism.
Having said that, I do think that Scalia deserves credit for taking Roberts to task for his disingenuous “I’m not overturning the precedent, I’m just refusing to ever apply it” hair-splitting. (As a friend noted in email, with Alito it seems almost a neurosis — what state will the Republicans lose in 2008 if Flast v. Cohen is overturned explicitly? He supposes that it’s the counts of precedents overturned that matters; if relatively few precedents are explicitly overruled some people may be fooled into thinking that nothing is really changing even as major branches of doctrine are being significantly revised.)
Walter Dellinger wrote recently that “But it’s neither minimalist nor restrained to overrule cases while pretending you are not.” Admittedly, as a skeptic I’m inclined to think of this kind of behavior as exemplifying minimalism rather than betraying it. But leaving aside the semantic issue the overall point he’s making is absolutely correct. The Court owes it to the public and role of the courts in a democracy to be honest about what it’s doing. If it wants to overrule Stenberg v. Carhart or McConnell or Flast v. Cohen, it should do so explicitly. In the meantime, however, it’s important not to be fooled when the Court declines to formally overrule a precedent it’s completely gutting.
Shorter neo-neocon: “Everything changed for me on September 11. I used to consider myself a Democrat, but thanks to 9/11, I’m outraged by Brown v. Board of Education.”
Emily Bazelon has an amusing article asking liberal and moderate legal scholars who claimed that Roberts would not preside over a rightward shift on the Court on the basis of…well, frankly I have no idea if they have second thoughts. (Of course he said he valued stability and precedent at his confirmation hearings. Everybody does. Including Clarence Thomas.) But while claims that Roberts “might even move the Court to the left” were frankly bizarre, as were the stories that took the possibility of lots of unanimous decisions in high-profile cases seriously, it’s important not to attribute too much causal weight to the new Chief Justice per se. Roberts is essentially a dead match for Chief Justice (as opposed to Associate Justice) Rehnquist–a standard issue conservative with little interest in grand legal theory and a tendency to disingenuously gut precedents rather than explicitly overruling them (although Roberts has taken the latter tendency to ridiculous lengths.) In other words, what really facilitated the Court’s rightward shift was replacing the moderate conservative O’Connor with the doctrinaire conservative Alito. If O’Connor had stayed on, the Roberts Court would look exactly like the end of the Rehnquist Court, and several major cases (including Carhart II, Ledbetter, and yesterday’s desegregation decision) would almost certainly have come out the other way. Given a minimum (i.e. more than Burger) level of competence the impact of the Chief Justice on the modern Court just isn’t very great.
Some further reading about today’s Supreme Court decision striking down school desegregation programs in Seattle and Louisville:
- Echidne finds some applause for the decision and offers a critique.
- Mary Dudziak on the decision’s misreading of history.
- Lots of interesting stuff at the LDF’s blog.
- Adam B reminds us that the decision overturned an opinion by libertarian hero Alex Kozinski.
- Jack Balkin offers an optimistic reading of the Kennedy concurrence.
- Professor B. ponders the diversity issue.
- Christy puts the case in broader perspective.
- And, for the final word, Mark Graber on the “conscientious objectors” from the civil rights moverment opposing desegregation under the mantle of Brown v. Board:
I should say off the top that I don’t know enough about antitrust to know about the economic wisdom of the latest 5-4 pro-business decision by the Roberts Court. I’ll even say that some Chicago School doctrine might have had a salutary effect at the margins of antitrust law; it certainly seems bizarre to me, for example, that the government would break up a merger between the third and eighth biggest shoe companies in the country (although whether the Court should override such an executive decision is another question.) Intuitively, it doesn’t seem right that price floors could be good for the consumers, but who knows; I haven’t seen the data.
Still, this decision is obviously very problematic whether or not the economic theory underlying it is correct. Breyer explains it well, but there is a very strong presumption of stare decisis in statutory cases, and this case is an excellent illustration of why. The Court created a bright-line, easily applied rule in 1911. If Congress thought that the Court had distorted its intent it’s had roughly 100 years to modify the statute and correct the Court. Moreover, the affected interests here are not (to put it mildly) the kind of disempowered minorities who might lack fair access to the political process. It doesn’t make the rule clearer — which might justify a departure from stare decisis — but in fact makes it less clear and harder to apply.
So whether or not one agrees with the Court on the economics, it has no business imposing its theory in the face of a long-enduring statutory precedent.
Some initial observations based on a first reading of the Court’s opinion striking down voluntary school integration programs in Louisville and Seattle:
- Nothing in the text of the Constitution compels these programs to be struck down. Essentially, Roberts’s plurality opinion rests on the assertion that racial classifications intended to perpetuate a caste system should be considered the precise legal equivalent of racial classifications intended to remedy segregation. This is exceptionally unpersuasive, and also makes it almost impossible to actually remedy the ongoing de facto segregation of American school systems, much of which has roots in various forms of state discrimination (not just formal apartheid in the South, but the drawing of arbitrary school district lines to create segregated systems, local ordinances encouraging residential segregation, etc.) As Breyer says, “This context is not a context that involves the use of race to decide who will receive goods or services that are normally distributed on the basis of merit and which are in short supply. It is not one in which race-conscious limits stigmatize or exclude; the limits at issue do not pit the races against each other or otherwise significantly exacerbate racial tensions. They do not impose burdens unfairly upon members of one race alone but instead seek benefits for members of all races alike. The context here is one of racial limits that seek, not to keep the races apart, but to bring them together.” To compare what these cities are doing to states that maintained apartheid is historically blinkered and morally untenable.
- Given the modesty of the Seattle program — which used race only as a tiebreaker, making the potential injustices of the classification particularly dubious — it is clear that no affirmative action program is going to survive an encounter with the Roberts Court in its current configuration. This is another area where replacing O’Connor with Alito makes a major difference.
- The opinion was predictably narrowed by Kennedy, who provided the swing vote but (exactly as Dahlia Lithwick predicted) holding out the dim possibility that a future program may theoretically take race into account. This probably won’t be terribly meaningful in practice (particularly since the federal courts are rapidly abandoning the desegregation orders necessary for Kennedy’s distinction to be relevant.)
- I strongly urge you to read Breyer’s dissent, which among many virtues contains a detailed history of segregation in both cities, pointing out that federal court orders were necessary to compel desegregation in both cities and (contrary to the plurality) even Seattle had significant elements of de jure segregation. It also does a good job of pointing out the opinion’s obvious inconsistency with past precedents the Court claims to be applying (I’ll have more on that later.)
- I’ll have an article about this coming out tomorrow, but you will be shocked to hear that Thomas’s concurrence does not contain the long-awaited historical evidence that the Fourteenth Amendment was originally understood as prohibiting even remedial racial classifications. Strange; I’m sure he must have it somewhere and just hasn’t gotten around to it! Obviously, in the wake of Bush v. Gore accusations by conservatives about liberals favoring “judicial activism” or “outcome-oriented” jurisprudence are risibly hypocritical, but here’s another data point.
- I’ll give the last word for to Breyer: “Today, almost 50 years later, attitudes toward race in this Nation have changed dramatically. Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty. The plurality would decline their modest request.
The plurality is wrong to do so. The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.”