A couple of commenters in the previous thread have asked about who I’d like to see chosen if (God forbid) Ginsburg is forced to leave the Court. I addressed this in a post a while back. I still like Kagan, but I assume Obama would want her to get more seasoning as Solicitor General, and that’s OK with me. Of the other candidates being mentioned, based on what I know, I find Diane Wood an especially attractive possibility. Jennifer Granholm is interesting. Myself, I think someone with her background would be a useful addition to the Court, but Obama may be reluctant to go against recent norms that emphasize judicial experience and I don’t feel strongly enough about Granholm to object very strongly. Kathleen Sullivan would also be a good pick; she has a lot of expertise in the LBGT issues likely to be more important in the federal courts in coming years and has a solid record.
Tag: "Supreme Court"
Dahlia Lithwick makes the case for a liberal of the Brennan/Marshall variety (although I suppose the best analogy to Scalia would be William O. Douglas.) Unfortunately, I think she’s also convincing when she says that “[m]y own guess is that moderate, centrist Barack Obama is unlikely to name any such creature to the high court.” I think this point from the Adam Liptak piece she cites deserves emphasis:
Justice John Paul Stevens, the leader of the Supreme Court’s liberal wing, likes to say that he has not moved to the left since he was appointed to the court by President Gerald R. Ford in 1975. It is the court, Justice Stevens says, that has moved to the right.
“Every judge who’s been appointed to the court since Lewis Powell” in 1971 “has been more conservative than his or her predecessor,” Justice Stevens said in a 2007 interview. He added that Justice Ruth Bader Ginsburg might have been the sole exception but included himself as one of those 11 ratchets to the right.
According to a study last year by William M. Landes, who teaches law and economics at the University of Chicago, and Judge Richard A. Posner of the federal appeals court there, four of the five most conservative justices to serve on the court since 1937, of a total of 43, are on the court right now: Chief Justice John G. Roberts Jr. and Justices Scalia, Clarence Thomas and Samuel A. Alito Jr. The fifth was Chief Justice William H. Rehnquist, whom Chief Justice Roberts replaced in 2005.
The study took into account the votes in divided cases on ideologically charged issues like criminal procedure, civil rights and the First Amendment. Justice Thomas, the most conservative justice in the study, voted for the conservative position in those cases 82 percent of the time. Justice Marshall, the only other African-American to serve on the court, was by this measure the most liberal, voting for the conservative side 21 percent of the time.
The study also reinforced Justice Stevens’s caveat, counting Justice Ginsburg as more liberal than the justice she replaced, Justice Byron R. White. But Justice Ginsburg, whom the study identifies as the most liberal current justice, barely makes the Top 10 in the full tally.
There’s a tendency to think of what can be loosely called the “liberal” and “conservative” wings of the Court as being roughly symmetrical. But that just isn’t the case; a liberal wing whose anchors are a Gerald Ford Republican and a someone whose most common voting partner as a Court of Appeals judge was Ken Starr are the liberal equivalents of Scalia and Alito and Thomas, but they just aren’t. This represents what may be the best opportunity to start to balance the scales for a long time, and Obama should take it.
Meanwhile, for your Friday comedy fix, Ann Althouse says that “I can’t help thinking Lithwick is running interference for some very liberal nominee to come. She has a strategy to portray that person as actually a moderate, someone to whom fair-minded conservatives should not object.” Given that Lithwick is being completely explicit about the distinction between more and less moderate liberals, this makes no sense. But you may remember Althouse’s (necessarily evidence-free) op-ed arguing that Sam Alito was a moderate to whom fair-minded liberals could not object. I believe this is called “projection.”
[X-Posted to TAPPED.]
In 2000, the Supreme Court ruled in Apprendi v. New Jersey that under the 6th Amendment’s right to a jury trial, any factor that increased a defendant’s sentence had to either 1)be admitted in a plea agreement or 2)proven in front of a jury. (The case was later held to make federal sentencing guidelines advisory rather than binding.) Although it didn’t seem to generate much discussion given the holding on the same day limiting the exclusionary rule, last week the Supreme Court created a siginifcant exception to the Apprendi rule, holding that factors that could permit the application of consecutive rather than cocurrent sentences could be found by a judge alone.
Unlike in many civil lberties cases, this result had nothing to do with Bush’s apponitments. Alito voted with the majority, but the justice he replaced (O’Connor) consistently dissented from Apprendi and its progeny. Somewhat surprisingly, the new Chief Justice dissented in this case while Rehnquist surely would have been with the majority, suggesting that Roberts is slightly more moderate on civil liberties than Alito (of course, so are J. Edgar Hoover and Harry Callahan.) The case came out he way it did because Stevens and Ginsburg switched sides , with the latter writing the majority opinion.
Since I’ve made fun of Scalia’s own flexibility in applying Apprendi in the past, I feel compelled to add that his dissent in this case seems quite devastating to me. The best I can say for Ginsburg and Stevens is that where Scalia flipped in a run-of-the-mill drug and gun possession case, the set of facts in this case were at least genuinely appalling: the defendant twice (after breaking and entering) sexually assaulted an 11-year-old girl. Still, even if we assume for the sake of argument that 28 years would be more just than a lesser sentence, I don’t think that justifies winking at a maor constitutional principle. It seems to me that Apprendi requires that Oregon prove the factors that went into aggravating a sentence be adduced at plea or proven in front of a jury, and I think that principle is sound. As much as I admire both, I think in this case Stevens and Ginsburg used a tough case to make bad law.
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.
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.
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.
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.
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.
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.
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.
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?