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Tag: "Supreme Court"

Obama’s Supremes

[ 0 ] November 20, 2008 |

One potential list here. I must admit that I have a strong sympathy for Sonia Sotomayor, given her role in stopping MLB’s attempted bad faith union-busting in 1995, but she seems too moderate to be a good first choice on a Court with four doctrinaire reactionaries and no Brennan/Marshall/Douglas style liberal. Marhsall’s former clerk Elena Kagan — who’s only 48 — seems a lot more promising.

Since many progressives are understandably less-than-enthused about the possibility of a Sunstein appointment, the best news I can give is that one logic of my critique of Sunstein’s “minimalism” is that the effect it has on a justice’s votes is veyr minimal. It’s true that Sunstein has said some bad things about Roe; it’s also true that he ends up in the same place (with, in this case, a rationale that’s actually better and more expansive.) I suspect he’d cast the same kind of votes as most other potential Democratic nominees even if they would sometimes be justified with a little more hand-wringing.

What A McCain Court Would Be (And What It Wouldn’t)

[ 8 ] November 3, 2008 |

Since we haven’t heard much about the courts in this election, I suppose it’s worth noting that given the likely retirements of Ginsburg (75 year-old cancer survivor), Souter (69, hates D.C. and isn’t crazy about the job) and Stevens (in college when the word “damn” could generate national controversy; may have seen Cap Anson play live) and the fact that the other federal courts are already stacked with Republicans, a McCain presidency would have far-reaching and very bad consequences for the judiciary that would extend for decades. If you don’t believe me, believe the usually Panglossian Jeffrey Rosen.

Since an Obama win that would preserve the current conservative majority for a while is more likely, it’s worth pointing out that while his overall argument is correct and useful I think Rosen is actually overreaching a little. He writes:

It’s true that certain kinds of conservative nominees would change the Court more dramatically than others. Activist conservatives, who yearn for the resurrection of what they call the Constitution in Exile, would be far more likely to challenge Congress and to strike down a range of federal regulations, from health care and the environment to the economic bailout. By contrast, deferential conservatives, who believe in judicial minimalism across the board, would generally uphold laws passed by Congress as well as the states.

Leaving aside the fact that it’s primarily liberals, not conservatives, who use the “Constitution in Exile” label, I still think that this is misstating the impact of conservative appointments to the courts. I’m not worried about even a McCain-fortified Court ruling major New Deal regulatory programs unconstitutional, and even if they were to do so this would work out about as well as it did in 1935; the Court is not going to survive a struggle against strongly committed legislative and popular majorities. They might overturn Roe and a few other Warren/early Burger precedents explicitly, but will no embark on a major challenge to the basic framework of the federal government. A more conservative court would be much more likely do more of what’s it already doing. Not to overturn the Civil Rights Act on commerce clause grounds, for example, but rather to interpret statutory language in ways that make it much more difficult to bring lawsuits (and hope that, as with Ledbetter, institutional veto points can prevent legislative majorities from responding.)

Which bring us to the second problem, which is relevant no matter who wins the election: the conflation of “minimalist” and “deferential.” One has nothing to do with the other. O’Connor, an arch-minimalist if there ever was one, is also about as far from “deferential” as you can get. And this is precisely what caused Rosen to miss the boat on Roberts. As Alito and Roberts demonstrate, it’s perfectly possible to be a formal “minimalist” and a doctrinaire conservative “activist.” And precisely because minimalists are less likely to make bold pronouncements or explicitly overrule precedents, they’re likely to accomplish similar things while insulating the court from political retaliation. And because they aren’t attached to grand jurisprudential theories, minimalists are also likely to be if anything more consistent about reaching conservative policy outcomes.

In other words, if anything Alito and Robetrs are more dangerous to American progressives than Scalia. Whoever is appointing the next round of federal judges, it’s important to remember this and not be distracted by implausible fears of a “Constitution in Exile” returning.

Revisting Roe’s Status

[ 0 ] October 31, 2008 |

Kay Steiger has an excellent article about how vulnerable Roe is under the current Supreme Court, which quotes yours truly. The bottom line for me remains that the argument that Roe‘s overturn is imminent depends on the belief that Kennedy has changed, and I just don’t think there’s any evidence that he has. To add a couple of points:

  • Leaving aside the question of how “political” we can expect the Court to be, I don’t understand why a politically savvy court would wait until Democrats hostile to their views controlled every branch of the federal government to overturn Roe. I don’t see how it becomes any better for the GOP to overturn Roe explicitly in 2010 than it is now. If anything, a politically savvy Court would have seen 2008 as a likely Democatic year anyway and gotten it over with if it wanted to do it.
  • The idea that Roe would be explicitly overturned also ignores the extent to which Alito and Roberts have gone out of their way to nominally “uphold” precedents they’re not seriously applying. If they’re not willing to explicitly overturn precedents that almost nobody in the general public cares about, they’re certainly not going to be anxious to do so on a high-salience issue where such an outcome would be very unpopular.

None of this is to say that I’m sanguine about women’s access to abortion in this country. It’s important to remember how much damage can be done to abortion access without Roe being overturned. And if a court gets more Republican appointments, that’s a different matter entirely. But the Court as currently configured isn’t going to explicitly announce the overruling of Roe v. Wade.

And You’ll Be Forced To Marry a Box Turtle!

[ 0 ] October 28, 2008 |

Steven Calabresi waxes hysterical and ludicrously implausible:

If Mr. Obama wins we could possibly see any or all of the following: a federal constitutional right to welfare; a federal constitutional mandate of affirmative action wherever there are racial disparities, without regard to proof of discriminatory intent; a right for government-financed abortions through the third trimester of pregnancy; the abolition of capital punishment and the mass freeing of criminal defendants; ruinous shareholder suits against corporate officers and directors; and approval of huge punitive damage awards, like those imposed against tobacco companies, against many legitimate businesses such as those selling fattening food.

Admittedly, not all of these are equivalent. The idea that the Constitution says nothing about the size of punitive damage awards, for examples, is held by such un-American Trotskyites as Antonin Scalia and Clarence Thomas, and it’s hilarious to see Calabresi get finished complaining that Obama’s judges will write their notions of economic policy into the Constitution and then claim that his own right-wing economic views can magically be found in penumbras and emanations from the 14th Amendment. At any rate, some of these positions would in my view be defensible, others would not, some are just crude, unserious demagogy (“mass freeing of criminal defendants?” “a federal constitutional mandate of affirmative action wherever there are racial disparities”?) but for most of these the idea that the median Supreme Court justice would support such judgments after an Obama administration is silly. One can say the same thing for the idea that “the left” is poised to “capture” largely Republican-dominated federal courts. And the whole piece is based on idiotic claims that to disagree with Steven Calabresi’s highly contestable views is to reject constitutionalism altogether.

Anyway, on how does Calabresi justify his claims that Obama would pack the Supreme Court with justices that would have to turn right to see Thurgood Marshall? By, like many Drudge-driven hacks before him, quoting his (perfectly accurate) claims that the Warren Court wasn’t particularly radical, while leaving out some rather key information, such as his skepticism about the courts as tools of social reform. The idea that Obama is going to appoint a bunch of judges far to the left of the current mainstream is, for better or worse, almost entirely unfounded. And I somehow doubt that this attempt to create panic about the possibility that after winning the popular vote in 4 out of 7 elections the Democrats might get more than 2 Supreme Court appointments is going to be very politically effective either.

6CA Participation in Vote Fraud Fraud Overruled

[ 16 ] October 17, 2008 |

Excellent news:

Earlier today, the Supreme Court effectively reversed a Sixth Circuit decision which required Ohio’s Secretary of State to implement new procedures which could purge thousands of voters from Ohio’s rolls. The Sixth Circuit’s decision is a stunning piece of results-based judging, as the court not only divided entirely on ideological lines, it also flatly refused to apply a binding Supreme Court precedent to one particular plaintiff: the Ohio Republican Party. Yet, while it is completely inexcusable for the Sixth Circuit to exempt the Republican Party from following a binding precedent, that precedent has unfairly slammed the courthouse doors shut on numerous low-income Americans, so it is no surprise that the Republican Party did not want to be bound by it.

Like Millhiser, I find the rule created by the Rehnquist Court in Gonzaga problematic, but nonetheless while it remains good law federal appeals courts are bound to apply it, and the 6th Circuit conspicuously failed to do so in this case. It’s good to the the Supreme Court reject this unprincipled support for Republican vote suppression efforts.

The Supreme Court and Abortion, Past and Future

[ 0 ] October 9, 2008 |

From the standpoint of a supporter of reproductive rights, Ann Bartow brings a pessimistic perspective while Neal Devins is more optimistic. I have agreements and problems with both arguments.

I do disagree with Bartow that the five votes to overturn Roe “are already there.” In particular, I don’t agree with her claim that Kennedy “has been moving against abortion over time.” I don’t see how his position has changed at all. The plurality opinion in Casey created (as Devins notes) a regime of legal-but-regulated abortion; Carhart II isn’t inconsistent with that. And while bans on “partial-birth” abortion are idiotic, they also have less impact on access to abortion than the waiting periods and parental involvement requirements upheld in Casey. Particularly when you consider his very strong endorsement of the right to privacy in Lawrence, I think the odds that Kennedy would be the fifth vote to overrule Roe are nil.

In addition, I also disagree with the essentially functionalist account of Casey advanced by both Bartow and Devins. Both see Casey as a product of social and political forces that perhaps caused the median justices to vote against their true preferences. But the upholding of Roe was very much contingent; with exactly the same political and cultural context it could well have been overruled. Had Reagan just nominated Scalia and Bork in reverse order, or Bush I had nominated Ken Starr rather than Souter, Roe would be gone. And I think this mattered a little more than Devins assumes. It’s true that majorities favor abortion rights, but a number of state legislatures would have almost certainly passed abortion bans had the Court permitted them.

At any rate, I do agree with Devins that Roe is probably safe in the short term, and certainly isn’t immediately threatened should Obama win. On the other hand, I don’t agree with him that a court with a more conservative median vote would reject abortion regulations that push the envelope. Roberts and Alito might not want an opinion overruling Roe explicitly, but I don’t think they will ever vote to find an abortion regulation unconstitutional, and as Carhart II proves the current “minimalist” court will go to ridiculous lengths to pretend it’s not overruling precedents it clearly is. Moreover, politics can change quickly, and given the relative ages of the pro- and anti- Roe forces on the Court there’s unlikely to be much margin for error for quite a while. The 2008 election really does matter, and a substantive right to abortion will not be on safe ground for quite a while after that. Casey did mirror (for better or worse) national median opinion quite well, but the Court could have plausibly have gone against it before and could do it again.

The New Supreme Court Term

[ 4 ] October 6, 2008 |

Adam Liptak has a useful roundup, noting that the Court does not have any “blockbusters” comparable to last year’s Second Amendment, death penalty, and war powers decisions. There are, however, some cases that indicate the likely direction of the Roberts Court and why many of his holdings will matter more than you might think. In particular, it’s important not to focus excessively on whether the Court explicitly announces the overturning of precedents. There are two examples that are instructive:

  • Standing. “In Summers v. Earth Island Institute, the court will consider who has standing to challenge environmental regulations.” As we’ve already seen with respect to church and state issues, by narrowing standing rules the Court can nominally keep important precdents on the books but make it exceptionally difficult to actually enforce them by declaring that most people don’t have standing to challenge potentially unconstitutional state actions. Moreover, this narrowing of standing rules is likely to be a one-way ratchet; plaintiffs advancing claims that conservatives find sympathetic are unlikely to see their ability to bring suits affected. These cases seem technical, but substantially affect the substantive rights of individuals as well as areas like environmental policy.
  • Pre-emption. Wyeth v. Levine, concerns only implied pre-emption and is perhaps the most important business case of the term. Wyeth, a drug company, seeks to overturn a Vermont jury award of more than $6 million to Diana Levine, a musician who lost much of her right arm in a medical disaster caused by the injection of a Wyeth anti-nausea drug. Wyeth argues that it cannot be sued because it had complied with federal safety standards.” Again, business cases of this sort tend to attract less attention, but making it more difficult for states to punish corporate malfeasance in the courts is a potentially very important outcome. For several of the court’s conservatives, their alleged commitment to “federalism” will clash with business interests, and (especially for Roberts, Alito and Kennedy) I know how I’m betting. Also look for Breyer, at a minimum, to vote with Wyeth.

Another trend Liptak brings up: “The court will also return to an emerging theme of the Roberts court, which has repeatedly turned back general, or “facial,” challenges to laws in favor of more focused, or “as applied,” attacks.” Again, this seems tehcnical, but in any number of areas — including aboriton — it will make the enforcement of rights more difficult. Given the formal “minimalism” of the Court, many of its important decisions will fly under the radar — but that doesn’t mean they aren’t important.

Get Over It

[ 0 ] September 15, 2008 |

I’ll have more on the general subject of the 2000 election because of a new book this week, but since I happened to catch the replay of Leslie Stahl’s puffball interview with Antonin Scalia today, I thought I’d mention this argument:

Gee, I really don’t wanna get into – I mean this is – get over it. It’s so old by now. The principal issue in the case, whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn’t even close. The vote was seven to two,” Scalia says.

Hmm. Roe v. Wade was a 7-2 opinion — and a real 7-2 opinion, not an opinion where two justices who were played for suckers articulated an actual equal protection argument and 5 justices (who got no other votes for any part of any of their opinions) invoked some sort of mysterious unspecified equal protection right that ended as soon as the justices’ candidate was safely ensconced in office — and indeed as Stevens pointed out its holding has now “been endorsed by all but 4 of the 17 Justices who have addressed the issue.” So I assume we can expect Scalia to just get over it and start joining opinions re-affirming Roe?

And while Stahl taking Scalia’s word that he is a consistent originalist at face value was inevitable, perhaps she could have asked Scalia for some of the sources he consulted to discover that the 14th Amendment was originally understood to require uniform recount standards?

Honesty And Ambiguity

[ 16 ] August 27, 2008 |

Ann Althouse watched Lily Ledbetter and claims “what she should say, to be honest, is: ‘Our Court declined to rewrite the statute to be fair to me.’” To be honest, this is utter nonsense. It might be fair to say that Ledbetter wanted to “re-write” the statute if she simply claimed that the statute of limitations should just be ignored because it led to an unjust outcome, but of course she argued no such thing. Rather, she argued that since she was still being paid less due to gender discrimination, the discrimination was ongoing and hence her filing was within the 180-day window. Whether one agrees with this or not, it’s at a minimum a reasonable interpretation of the statute. Which is why this interpretation was shared by a federal district court, four justices of the Supreme Court, and — this is important — the EEOC itself. (As Ginsburg noted, “Similarly in line with the real-world characteristics of pay discrimination, the EEOC—the federal agency responsible for enforcing Title VII—has interpreted the Act to permit employees to challenge disparate pay each time it is received.” This remained its official position until well into the Bush administration.) If Althouse wants to claim that all of these people were advancing an indisputably erroneous interpretation of the statute, she really needs more than bare assertion.

Althouse’s sneering about Ledbetter doesn’t get any more coherent:

She goes on to blame the Senate for voting down the amendment that would make it possible to sue if you don’t know about the discrimination when it first takes place, but then she says that Barack Obama as President will solve the problem: “As President, he has promised to appoint Justices who will enforce laws that protect everyday people.” That doesn’t really add up. But she’s doing a good job of making us feel that the Democrats will protect the rights of working people.

Of course, what Ledbetter is saying makes perfect sense. Evidently, there are many institutional veto points that were responsible for allowing businesses to evade Title VII protections. A minority in the Senate was able to filibuster an attempt to override the court’s interpretation of the statute, and President Bush vetoed another attempt. Ledbetter is therefore right that more politicians who (unlike John McCain) actually support gender equality are needed. But it’s also true that this corrective action wouldn’t be necessary had a bare majority comprising the court’s most conservative members not interpreted an ambiguous statutory provision against Ledbetter. And in the modern regulatory state, these kinds of disputes matter; statutory provisions are often open to multiple reasonable interpretations, so who is responsible for applying them matters. The reactionary judges Althouse enthusiastically supports (just like John McCain) will tend to resolve such cases in favor of business interests; the kind of judges appointed by Obama are more likely to resolve ambiguities in favor of women’s rights. Hence, who appoints judges matters (and who controls the executive branch matters even more), and what Ledbetter is saying is right on all counts.

…I think what Yglesias says here is relevant to Althouse’s unique brand of feminism (as far as I can tell, it can be distilled into the following principles: 1. Hating Bill Clinton 2. There is no #2):

But at some point politics is about policy. If your opposition to pay discrimination doesn’t extend to favoring measures to halt pay discrimination, then what’s it worth? To people suffering from illegal discrimination, it’s worth nothing. To people who want to engage in illegal discrimination, it’s worth quite a lot.

Roe v. Kuhn

[ 30 ] August 20, 2008 |

One way of sorting out peoples’ politics of law is to ask them if they find Harry Blackmun’s opinion for the Court in Roe v. Wade or Flood v. Kuhn more jurisprudentially offensive. (Flood held that, in order to avoid reversing a half-century-old precedent, baseball’s reserve clause would continue to be treated as legal under federal antitrust laws.) I teach the Flood case in my Legislation course, and one thing I try to bring out is the economic naivete of the opinion, which proceeds from the dual assumptions that

(a) Americans love baseball more than almost anything else; and

(b) Major league baseball can’t survive as a viable economic enterprise without special legal protections for team owners.

The Flood case came to mind this morning when I was putting together my Legislation syllabus, and I happened to notice that the major league minimum salary ($390,000) is now roughly three times higher, in real terms, than the mean salary at the time of the Flood case (the median salary was of course much lower), and almost exactly the same as what the mean salary was back in 1981, after the first great wave of free agency had driven salaries to what the owners insisted were unsustainable levels.

The Empirically Baseless Paternalism of Anthony M. Kennedy

[ 14 ] August 13, 2008 |

Anthony Kennedy, in his appalling opinion for the Court in Carhart II, asserted:

While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude that some women shouldn’t worry their pretty little heads about manly medical treatment come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.

The APA, however, has found that to the extent that the claim is relevant it’s false:

…the American Psychological Association has determined (PDF) that “abortion hurts women” rhetoric is bunk. The APA, which was to have adopted the new standard this morning, says in its draft language “the relative risks of mental health problems are no greater than the risks among women who deliver an unplanned pregnancy.” In other words, forcing women to carry through with an unplanned pregnancy is just as risky for mental health as it is to have an abortion.

And when you combine this with the greater physical risks of pregnancy, the rationale for abortion regulation or criminalization based on protecting women’s health vanishes entirely. And despite some claims that Kennedy was somehow going off the reservation with his embrace of the new paternalism, without such assertions bans on “partial birth” abortion have no rational connection to any legitimate state interest whatsoever.

The Exclusionary Rule In Comparative Perspective

[ 0 ] July 21, 2008 |

Adam Liptak has an interesting article about the exclusionary rule and how the American use of the rule differs from other countries. He begins with a comparison to Canada, which requires that evidence obtained in an illegal search be excluded only if admitting the evidence would cause greater harm to the integrity of the justice system then excluding it would. On its face, this seems unexceptionable, but of course this kind of balancing test is only as good as the judge applying it. Interestingly, the case Liptak cites — which involved the admission of cocaine found in a search the trial judge conceded was unconstitutional — is not a very attractive one. I could accept the Canadian rule if it developed in a way that gave deference to the state when it comes to violent offenses but almost always excluded evidence in cases such as The War On (Some Classes of People Who Use Some) Drugs, which have both a strong tendency toward promoting unconstitutional police behavior and whose social benefits are much less clear. It will be interesting to see how the Supreme Court of Canada rules.

One puzzle I have with the article is that I’m not sure how meaningful it is to claim that Canada has “balancing” with respect to the exclusionary rule but the United States does not. As Liptak mentions towards the end, the Supreme Court has developed various exceptions to the exclusionary rule: inevitable discovery, “good faith,” 2006′s “no knock” exception. Perhaps the balancing in the United States is more tilted towards defendants, but I don’t think that it makes much sense to discuss a “mandatory” American exclusionary rule; judges have plenty of tools to admit evidence they feel should be admitted. It’s also highly unlikely that a judge’s perception of whether excluding the evidence would affect the integrity of the justice system is irrelevant to her considerations about whether evidence should be excluded (or, for that matter, about whether a search is “reasonable); it’s just more explicit in the Canadian case.

I’ve discussed the question of whether a strong exclusionary rule makes sense before — in the actually existing political circumstances of the United States, I favor it. One thing to add, though, is that American exceptionalism in terms of formal civil liberties has to be considered alongside American exceptionalism in terms of the harshness of punishment (both in terms of the time people convicted of various crimes spend in jail, how often they’re convicted, and the economic and social consequences of having been in prison.) It’s hard to argue that the overall balance in the United States is excessively tilted in favor of the individual against the state.

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