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.
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.
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?
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.
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.
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.
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.
Reading Linda Greenhouse’s valedictory essay , Digby emphasizes this passage:
In five days on the witness stand, Judge Bork had a chance to explain himself fully, to describe and defend his view that the Constitution’s text and the intent of its 18th-century framers provided the only legitimate tools for constitutional interpretation. Through televised hearings that engaged the public to a rare degree, the debate became a national referendum on the modern course of constitutional law. Judge Bork’s constitutional vision, anchored in the past, was tested and found wanting, in contrast to the later declaration by Judge Anthony M. Kennedy, the successful nominee, that the Constitution’s framers had “made a covenant with the future.”
It has made a substantial difference during these last 21 years that Anthony Kennedy got the seat intended for Robert Bork. The invective aimed at Justice Kennedy from the right this year alone, for his majority opinions upholding the rights of the Guantánamo detainees and overturning the death penalty for child rapists — 5-to-4 decisions that would surely have found Judge Bork on the opposite side — is a measure of the lasting significance of what happened during that long-ago summer and fall.
Elsewhere in the dead tree edition, the paper identified three landmark cases; Casey was called “The Triumph of Precedent.” But was it, at least in the sense that precedent compelled justices to do something they would otherwise have been strongly opposed to? It’s far from clear. The three justice plurality in Casey reached pretty much the same conclusion you would expect reasonably moderate Rockefeller Republicans to reach: formally legal pre-viability abortion while states have wide latitude to pass silly regulations that make it harder for poor women to procure them. More importantly, had Bork been confirmed the Roe precedent would have been worth nothing. It was the defeat of Bork, rather than the pull of precedent, that explains Casey.
And for this reason, as I’ve said before, it’s unwise for progressives to get too complacent about Roe or other landmark liberal precedents. The upholding of Roe may seem inevitable in retrospect. but it wasn’t. Had Reagan nominated Bork and Scalia in reverse order, or Bush had gone with Ken Starr rather than Souter, Roe would have been overruled. It’s true that the Court rarely swims far outside the mainstream, but governing factions have a variety of interests and political priorities. In the Rehnquist Court, culturally moderate conservatives controlled the center. I would be unwise to assume that the same would be true of the Roberts Court after another Republican term or two.
I did a Supreme Court roundup with Bill Scher of Liberal Oasis, which is available in convenient MP3, XML, and ITunes formats.
Way back in 1978, Congress passed the Pregnancy Discrimination Act to undo the damage wrought by the Supreme Court in Geduldig v. Aiello, in which the Court infamously (foot)noted that:
The California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition – pregnancy – from the list of compensable disabilities. While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification . . . . Normal pregnancy is an objectively identifiable physical condition with unique characteristics. Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition.
The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups – pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes.
That’s right, kids: under the Constitution pregnancy discrimination is not sex discrimination because there are some women who are not pregnant. Or something like that.
Anyway, Congress tried to change this in 1978. But the more things change with regard to pregnancy discrimination, the more they stay the same. The Supreme Court last week granted cert to hear a pregnancy discrimination case against AT&T. The case — AT&T v. Hulteen — presents the question of whether a corporation is free to count leave taken before the 1978 passage of the PDA against women who continued to work at the company after the PDA’s passage. A summary from Cara:
In the late 1960s/early 1970s, Noreen Hulteen, Eleanora Collet, Linda Porter and Elizabeth Snyder took maternity leave from their jobs at AT&T. Under AT&T rules during this time, pregnancy was considered personal leave, and counted against employees for promotions, vacation, and pensions. Other types of long term sick leave, taken by men or women, were not counted against the employees. This type of discrimination, against only pregnant people, is currently illegal under the Pregnancy Discrimination Act. Today, AT&T is counting the pregnancy leave against these women for purposes of their pensions.
Instead of dropping the case and giving these women the pensions they deserve after careers devoted to the company, AT&T is fighting their female employees all the way to the Supreme Court. And particularly given Ledbetter, I can’t say that I have any confidence in what SCOTUS will do.