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The Roberts Court Massacre


Marty Lederman identifies the two crucial pieces of data from the first full term of the Roberts Court. The first is that “the Chief Justice voted for the more conservative result (by most observers’ lights) in 24 out of the 24 cases decided by a 5-4 vote.” (By my count this is also true of Alito; if someone has a couterexample feel free to point it out in comments.) This was, of course, utterly predictable — when a justice is very conservative but is a pragmatist without even a sporadic commitment to some grand theory, that’s what happens. It was also predictable that they would prefer to gut precedents rather than overturn them. I suppose some people would consider the the fact that “[f]ully a third of the court’s decisions, more than in any recent term, were decided by 5-to-4 margins” significant, but I can’t fathom why anybody thought the idea of Roberts achieving unanimity in significant numbers of closely divided cases was serious in the first place. The other key point is the effect of Alito replacing O’Connor so far, and for the future. Lederman summarizes:

At the time of her resignation, I identified 31 5-4 decisions in her final decade on the Court that could very well be overturned by a Court with a more conservative Justice replacing her. (A recent iteration of that list can be found here. Steve Vladeck helpfully notes that I should add to it a 32d case — Central Virginia Community College v. Katz, involving sovereign immunity and the Bankruptcy Clause — decided after O’Connor announced her retirement (indeed, on her final day in office)).) So far, only two of those precedents have been (de facto) overruled — but they’re big ones: Carhart and the BCRA title II section of McConnell. And although Grutter was not overruled, its impact was severely compromised in the integration cases on Thursday. That’s already three of the five major areas (abortion, affirmative action, campaign finance) I identified as the most significant doctrinal areas subject to dramatic shifts; the other two are the Establishment Clause and Congress’s remedial powers under the Civil War Amendments. (The Court hasn’t yet considered any cases in which O’Connor precedents such as Mitchell v. Helms and Tennessee v. Lane might be vulnerable.)

Depressing, if not in the least surprising.

Meanwhile, several bloggers have noted this comedy gold from the Washington Post, in which it consistently decries the inevitable results of the confirmations it supported. What’s striking about the editorial endorsing Alito is that despite some hemming and hawing it doesn’t really take the Althouse/Taylor tack of asserting that he’s a “moderate” on the basis of no evidence whatsoever, although there is some nonsense about Alito favoring judicial restraint (still foolishly assumed to be a conservative trait in the wake of Bush v. Gore, the “sovereign immunity” cases, etc. etc.) Rather, once you boil off some nonsense about how judicial restraint would be great “if applied apolitically” (And a pony! What this has to do with a longtime GOP operative who impressed the administration with a voting record of remarkable conservative consistency I can’t tell you), the argument seems to be that given some minimum set of qualifications the President is entitiled to get anyone he wants confirmed. As a commenter at Ezra‘s puts it with exquiste Broderite vacuity, “[t]he standard view has been that neither the President or the Senate should have specific political litmus tests, but neither ignores ideology either.” (What this will mean in practice since the terms mean nothing, of course, is that when the Bush administration selects a judge who casts conservative votes in virtually every contested case, has a long-time history of expressing reactionary legal views, etc. they want someone “broadly conservative,” but if the Senate objects to this they’re applying a “litmus test.”)

Obviously, this is silly. The Senate should limit itself to qualifications…at exactly the same that Presidents start picking nominees at random from a list of well-qualified ABA judges. Otherwise, it’s entirely resonable for the President to consider ideology, and it’s entirely resonable for the Senate to consider ideology. A President is due considerable ideological deference on cabinet appointments, but not on lifetime appointments to a third branch of government. If you disagree with Alito’s legal views, you should oppose his confirmation by the Senate. And if you think that because Alito went through the Senate the GOP will give the next Democratic unlimited deference to choose a qualified justice I hope you’ll let me guard that new shipment of i-Phones for you.

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