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Tag: "Supreme Court"

The Least Powerful Branch

[ 0 ] May 6, 2008 |

Like Josh Patashnik, I’m puzzled by Anna Quindlen’s claim that the judiciary is the most powerful branch of the federal government. Patashnik notes the relatively narrow scope of the recent decisions Quindlen cites, which is terms of their impact are obviously dwarfed by, say, the Iraq War or Bush’s series of budget-busting upper-class tax cuts, both areas in which the courts have virtually no influence. In addition, many of Qundlen’s examples are hardly example of the unilateral power of the courts. The decision to uphold Indiana’s voter ID law was, in my judgment, a bad one — but it also would have been beside the point had the legislature not passed the bad law in the first place. Similarly, Ledbetter was bad, but the Court has been able to establish a new status quo because 1)the President vetoed corrective legislation, 2)a Republican minority in the Senate the filibustered, and 3)the Equal Pay Act didn’t allow for punitive damages in the first place, making the statute of limitations provisions of Title VII relevant in the first place. The court certainly matters, but in most cases its shaping of the policy generated by the other branches is marginal. And even where the progressive impact of the court is arguably the most important — abortion rights — such rights have substantial support among both the public and among elected officials, and indeed Roe could not have survived even in its current watered-down form if this wasn’t the case.

An additional point is that — as I think I’ve said before — Quindlen’s claim that “[h]istory tells us that virtually all presidents get blindsided by their court choices” is also not really true. Almost all alleged “surprises” were either selected for reasons other than ideology (Warren, Brennan, O’Connor, Souter) or were third choices reflecting the constraints of the Senate (Blackmun, Kennedy.) And even the extent to which Blackmun crossed Nixon has been overstated; there’s very little reason to believe that Nixon cared about abortion when making Supreme Court appointments. On the stuff that Nixon actually cared about, even Blackmun was pretty reliable vote for his first decade. All four Nixon appointees joined the 5-4 decisions that effectively gutted Brown by permitting states to maintain schools that were both de facto segregated and unequal as long as this was done by through district boundaries and funding rather than direct pupil assignment, for example. And no Nixon appointee ruled that the death penalty was unconstitutional until is was again well-established. In general, voters are actually perfectly rational in assuming that a President they otherwise support will appoint judges with more congenial constitutional views and using presidential ideology as a proxy.

None of this is to say that the public wouldn’t benefit from knowing more about the courts and what they do, but you can say that about almost any aspect of government. Regulatory decisions are also an extremely important part of modern government and will tend to be very different depending on who occupies the White House, but they attract if anything less public attention.

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Post Haste

What Baze hath wrought.

Good to know that Texas is getting all fired up to execute a dude in a wheelchair.

Democracy-Enhancing Judicial Review

[ 0 ] April 30, 2008 |

Jack Balkin makes an excellent point here. Defenses of the Supreme Court upholding the Indiana voter ID law claim that the requirement will somehow be part of a political bargain to improve access to voting, which run into the obvious problem that there’s no evidence whatsoever of such a bargain in Indiana, or that erroneous voter perception of voter fraud stands in the way of increasing voter access if the legislature wants to do it. (Indiana made no effort to respond to actual abuses of absentee balloting, because that increased access benefits Republicans.)

Crawford is a case where modest judicial review would actually facilitate democracy: broadening access of powerless groups to the political process is where judicial review is at its most defensible. Souter and Breyer’s dissents — properly — did not rule out Voter ID laws regardless of the context. If the restrictions were actually tied to efforts to increase voter access, or there were actual evidence that in-person vote fraud was a problem, this would be a different case. But absent such balancing state interests, permitting Indiana to burden the ability of the most powerless people in the state to vote for reasons of political self-dealing rather than to address serious state interests is bad for democracy.

The other thing to add is that the fact that claiming that only a relatively small, particular (and especially politically powerless) class of people lacks access to photo IDs justifies facially upholding the law is rather strange. As I’ve said with respect to similar arguments made to justify arbitrary limitations on a woman’s right to choose, this logic makes “inequitable effects an argument in favor of the constitutionality of such regulations.” This argument seems to stand Carolone Products on its head: burdens on fundamental rights are more acceptable as long as only discrete and insular minorities are affected. This is, to put it mildly, an unattractive conception of the role of judicial review.

Flights of Fancy

[ 13 ] April 29, 2008 |

Talk about ripped from the headlines.

No, no one would *ever* address our Supreme Court this way, nor would the Court let her or him. But, hey, a law student can dream.

Shameless Nino’s Def Comedy Jam

[ 0 ] April 28, 2008 |

In light of Scalia once again dismissing those who consider Bush v. Gore less than a noble application of constitutional principle, this passage from his concurrence in Crawford can only be read as black comedy:

That sort of detailed judicial supervision of the election process would flout the Constitution’s express commitment of the task to the States. It is for state legislatures to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class. Judicial review of their handiwork must apply an objective, uniform standard that will enable them to determine, ex ante, whether the burden they impose is too severe.

Yes, how outrageous and inconsistent with federalism it would be for the Supreme Court to use the equal protection clause to engage in the ad hoc supervision of state election procedures, without anything resembling an “objective, unifrom standard”! Note: this principle void if it can put a Republican president in the White House.

Crawford v. Marion County

[ 1 ] April 28, 2008 |

Dismayingly but not surprisingly, the Supreme Court upheld Indiana’s Imaginary Vote Fraud and Democratic Vote Suppression Act today. Vote was 6-3, Stevens joining the majority and writing for the plurality, leaving open the possibility of an as-applied challenge. More later this afternoon.

Unforgiven

[ 0 ] April 25, 2008 |

Antonin Scalia continues to tell people to “get over” the disgraceful decision in Bush v. Gore. As he must know, that won’t happen. Since he continues to do things like say that the equal protection rationale was “7-2,” it’s worth repeating exactly why the decision was so problematic.

The problem is not that the decision was “political” in the sense that “many constitutional provisions have multiple plausible interpretations when in comes to any interesting case, and justices are likely to choose the plausible interpretation that is consistent with their political values.” That’s something you have to accept as long as you have judicial review. Admittedly, one would like at least some measure of internal consistency, so Scalia — who previously thought that William Rehnquist construed the equal protection clause too broadly — suddenly embracing an innovative equal protection analysis that (if taken seriously) would have very broad implications merits considerable criticism. But since the unprecedented equal protection claim wasn’t actually inconsistent with the text of the Constitution, that’s not the biggest problem. If they were willing to apply that principle in a coherent manner, one could live with the result no matter how opportunistic the sudden embrace of William Douglas’s way of reading of the 14th Amendment was.

The bigger problem is that (and Scalia has been particularly vocal about this) that judges are supposed to actually apply principles to similar cases, not abandon and then abandon resolutions to favor particular litigants. Bush v. Gore, of course, did the latter, in a way that wasn’t so much “minimalist” as not constitutional law at all. And even worse than that, it failed to apply the alleged equal protection principle coherently with respect to the case itself. If the vote dilution that comes from arbitrary differences in vote count methods violates the federal Constitution, then not only to many states have to change their vote counting and recount statutes, the vote count that elected Bush also violated the Constitution. To the extent that the equal protection analysis meant anything at all, the remedy absolutely could not be “shutting down vote counts and accepting a vote count and recount that did not use anything resembling uniform standards and hence diluted the votes of some classes of individuals”–but that’s exactly what the Court did. And that’s what makes the Court’s actions political in the pejorative sense, and also entirely indefensible.

And that’s not the only problem with lawlessness. It’s also worth noting, for example, that the Florida court’s “recount scheme” lacked uniform standards in part because the Supreme Court of the United States told them not to use them. As Kim Scheppele has demonstrated in detail, creating these kinds of Catch-22s is not consistent with the rule of law. Long after Bush has left office, Bush v. Gore will continue to be a disgrace for Scalia and his four colleagues because they violated their obligations in the most fundamental way.

Stevens and the Machinery of Death

[ 21 ] April 17, 2008 |

Given what bean correctly identifies as the complexity of today’s ruling in Baze v. Rees, I’ll have to leave discussion of the fractured holding until tomorrow. For now, let me discuss one interesting and unexpected development. For the first time since the nearly-retired Harry Blackmun, the Supreme Court now has a justice who believes the death penalty to be categorically unconstitutional under the Eighth Amendment. Justice Stevens:

Finally, given the real risk of error in this class of cases, the irrevocable nature of the consequences is of decisive importance to me. Whether or not any innocent defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses. The risk of executing innocent defendants can be entirely eliminated by treating any penalty more severe than life imprisonment without the possibility of parole as constitutionally excessive.

In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

Stevens’s concurrence provoked a rejoinder from Scalia. I hate to admit it, but while I certainly think Stevens has the better of the policy argument, as a matter of constitutional law I think Scalia’s (while I would certainly not endorse every detail) is more persuasive. In particular, I agree that the explicit mention of “life” in the due process clauses of the 5th and 14th Amendments — while not dispositive — certainly puts the burden of proof on those claiming that the 8th Amendment forbids the death penalty in all cases. And questions such as whether the death penalty has a deterrent effect and what role retribution can play in criminal punishments, there’s enough reasonable disagreement to justify leaving the policy judgment to legislators, especially since nobody could argue with a straight face that there’s anything remotely resembling a national consensus against it. I’m open to arguments about the death penalty as applied, but I continue to think that the Marshall/Brennan position on the death penalty isn’t terribly convincing.

The other interesting twist, as many of you have already inferred, is that Stevens voted to uphold Kentucky’s execution regime, deferring to precedent. (In this, he differs from Blackmun — he may think that the death penalty experiment has failed, but remains willing to tinker with the machinery of death.)

Leave the good stuff for the Dogs

[ 14 ] April 16, 2008 |

The Supreme Court just rejected 7-2 a constitutional challenge to the 3-injection lethal injection protocol. Details to come. The case is Baze v. Rees.

Good to know that Supreme Court believes that dogs deserve better treatment than the human condemned.

Update: SCOTUSBlog has more. The Court was totally splintered, with no one opinion garnering five votes. The dissenters were Ginsburg & Souter.

Lawyers, Judges, and Money

[ 11 ] April 16, 2008 |

The recently retired Justice O’Connor recently spoke at Hunter College with Justice Breyer, and was asked by a student if there was a vote she regretted casting. After rejecting the student’s suggestion that she choose Bush v. Gore, O’Connor named a case in involving judicial campaigns. She didn’t mention it by name, but I assume she meant Republican Party of Minnesota v. White, which struck down a prohibition on judges announcing views about “disputed legal or political issues.” (“Good,” quipped Breyer, “I dissented in that case.”) Dorothy Samuels notes that she has also spoken out recently about campaign donations to judges and their potentially corrupting influence.

I don’t think that the First Amendment should be construed to prevent the reasonable regulation of donations in judicial elections. Despite attempts by a lot of conservatives to portray campaign finance as an easy First Amendment issue, it’s actually complex. Donating or spending money isn’t pure speech but a means to make speech more widespread. This remains a core First Amendment value, of course, but in the context of elections it also conflicts with the crucial democratic assumption that individuals with unequal resources should still be civic equals at election time. And the problem of donations is even more acute with judicial elections: legislators aren’t supposed to be impartial in crafting legislation, but one would think that judges are supposed to be impartial in enforcing it. Other liberal democracies with a commitment to free speech have managed to regulate campaign donations and spending without heading down the slippery slope to crushing political dissent.

White, which was a pure speech case, is a lot trickier; I would probably reluctantly join the court’s opinion. And the case does bring up a broader question; if judges aren’t allowed to state their views, why have elections at all? O’Connor actually identified the problem in her concurrence:

Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. In doing so the State has voluntarily taken on the risks to judicial bias described above. As a result, the State’s claim that it needs to significantly restrict judges’ speech in order to protect judicial impartiality is particularly troubling. If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.

I sometimes find it hard to fault the Supreme Court for requiring states to push the idea of electing judges further down its logical path.

So Much for the Rule of Law

[ 5 ] April 9, 2008 |

I have to say, I have mixed emotions about the New York Times’s decision to replace Linda Greenhouse with Adam Liptak. I’m afraid it is going to defang him and render him unable to really dig into political topics with a definite viewpoint. Like, say, he did in his Sidebar column yesterday.

This week, Liptak takes on the Border Fence. More specifically, he is scratching his head about Congress’s 2005 decision to give the Secretary of Homeland Security the power to suspend any federal law that was interfering with border control. Literally. And, not only that, but to suspend judicial review of his decisions so that courts cannot tell him that he has crossed the line.

Securing the nation’s borders is so important, Congress says, that Michael Chertoff, the homeland security secretary, must have the power to ignore any laws that stand in the way of building a border fence. Any laws at all.

Last week, Mr. Chertoff issued waivers suspending more than 30 laws he said could interfere with “the expeditious construction of barriers” in Arizona, California, New Mexico and Texas. The list included laws protecting the environment, endangered species, migratory birds, the bald eagle, antiquities, farms, deserts, forests, Native American graves and religious freedom.

The secretary of homeland security was granted the power in 2005 to void any federal law that might interfere with fence building on the border. For good measure, Congress forbade the courts to second-guess the secretary’s determinations. So long as Mr. Chertoff is willing to say it is necessary to void a given law, his word is final.

Thankfully, in the wake of Chertoff’s decision to suspend 19 environmental laws that stood in the way of the fence-building, two environmental groups have brought a lawsuit to challenge the delegation of power as an unconstitutional violation of the separation of powers. They’re likening it to the Line Item Veto, which the Supreme Court struck down several years ago. The D.C. Circuit disagreed, but now the case may be headed to the Supremes.

Liptak’s views on the issue are only thinly veiled:

People can disagree about the urgency of border security and about whether it is more or less important than, say, the environment. Congress is entrusted with making those judgments, and here it has spoken clearly. In the process, it has also granted the executive branch more of the sort of unilateral power the Bush administration has so often claimed for itself.

No one doubts that Congress may repeal old laws through new legislation. But there is a difference between passing a law that overrides a previous one and tinkering with the structure of the Constitution itself. The extraordinary powers granted to Mr. Chertoff may test the limits of how much of its own authority Congress can cede to another branch of the government.

How many times is it now that the Bush administration has tested the limits of executive power? I have definitely lost count. And Congress may be the biggest culprit here. It was a different Congress in 2005, but this Democratically-controlled Congress hasn’t done much to right that Congress’s wrongs. At this point, it may all hang on Justice Kennedy.

No wonder Liptak’s hackles are up.

Score One For Legal Realism

[ 0 ] April 1, 2008 |

The Supreme Court’s decision today in New Jersey v. Delaware was decided in favor of the latter. The two dissenters? Trenton’s Antonin Scalia and Trenton’s Sam Alito. (Well, Stevens dissented in part, but to argue that the rule announced by the Court was insufficiently protective of Delaware’s sovereignty.)

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