Category Archives: Law: The Supremes

The best analysis I've seen so far of the politics of the Sotomayor nomination is SCOTUSblog, The Dynamic of the Nomination of Sonia Sotomayor.

I don't agree with every word, but the key points seem right:

• Obama has the votes for this;
• That won't stop the interest groups from going berserk, because that's what they do and they get rich off it;
• Key Republicans will take a dive because the costs of opposition are too great;
• The Republicans, and the interest groups, will exact payback on the next one.

My colleague Ricardo Bascuas makes a guest appearance at the Southern District of Florida Blog to write about Souter succession speculation.

Perhaps I'm just in a grumpy mood but I was somewhat taken aback by the Chief Justice's statements as reported in the New York Times's Sidebar – Judging the Merits of a Supreme Court Drawn Only From the Judiciary.

For the first time in its history, every member of the United States Supreme Court is a former federal appeals court judge. Chief Justice John G. Roberts Jr., in a lively and surprising talk a couple of weeks ago, said that development might be a good thing.

Even the Times found that too much to swallow.

But there are reasons to question the chief justice’s conclusions.

The political scientists who study such things say there is no empirical support for the notion that former judges are more apt to feel constrained by earlier rulings or to suppress their political views. “Former appellate court judges are no more likely to follow precedent or to put aside their policy preferences than are justices lacking judicial experience,” according to a study to be published soon in the University of Pennsylvania Law Review.

It seems to me that this (empirically unsupported) claim that appellate judges are “less political” (and thus, presumably, “better”) is a remarkably partisan remark coming from the Chief Justice when it does. Who are the youngish appellate judges who might be appointed to the Supreme Court today? Why, it just happens that at present they just happen to be … wait for it … pretty much entirely a group of very-conservative to ultra-conservative appointees put on the bench by George W. Bush. Were President Obama to have to make an appointment in the near term, and were his goal to be to appoint a youngish non-conservative, the intersection of that set with sitting judges on the Courts of Appeal is approximately zero.

It is hard to see how this convenient fact could have been lost on someone as smart as the Chief Justice. In which case, I find a not-very-hidden agenda in his remarks: that of giving aid and comfort to any GOP attempt to block a non-judicial liberal from being put on the Court. And believe me, that's very much on the mind of the right-wing establishment. I would like to be wrong about this; I had hoped for better from him.

Via La Bartow, Madlawprofessor’s Weblog, On The Coattails of History … presents us with the latest in contemporary legal/style dilemmas.

Mark Graber writes at Balkinization,

When thinking about the role of courts, lawyers, legal scholars and citizens should not automatically treat Brown as a paradigm and such cases as Dred Scott, Hepburn, Pollock and others as anomalies. Seen from broader history perspective, Brown is far more anomalous than Dred Scott. Throughout most of American history (and in many new constitutional democracies), progressives sought legislature victories and played defense in court. The Supreme Court, reformers understood, was far more likely to declare unconstitutional legislative efforts to promote political equality than prevent elected officials from discriminating unjustly. Times may change, but a good case can be made that, by protecting white persons from affirmative action programs and affluent Americans from campaign finance restrictions, the contemporary Supreme Court is merely reverting to form.

I've been telling students something like this for 15 years. My version is a little different, as it makes a little more space for a libertarian/conservative split when it comes to some issues touching on the Bill of Rights, with the libertarians sometimes sounding quite “liberal” at times. But quibbles aside, it never ceases to amaze me that the fundamental idea that our courts are most frequently, generally, perhaps even naturally, conservative-bordering-on-reactionary is even controversial, much less that it is far from the dominant consensus. (That said, I do accept there is a case to be made that the current court is more conservative than the post-Korean-War norm, but that's just a question of how far back you sample.)

I understand that law school faculties underwent a great expansion which resulted in their being stuffed with and dominated by a generation that saw the Warren court as the ur-Court. But even if that is your ideal, and it wasn't perfect, why does this belief so often carry with it the myopic view that the Warren court was not a relatively rare historical aberration? Even most of the seemingly progressive moves of the Marshall Court were actually centralizing (Federalist), then seen as generally supporting the interests of the propertied and creditor class. And in between…

Such at least is my positive claim. The normative implications are less clear, for there are reasons why it may not be all bad to have a conservative bias in the courts, at least if one has a small-d democratic bias in the legislature. (I'd say we don't have that now, by the way, due to various sorts of gerrymandering of congressional districts and the small-d democratic imbalances in the Senate.)

But one positive implication is clear: progressives put their reliance on courts at their peril. Social change happens most commonly in civil society (not least in churches) and at the ballot box. The courts are most commonly followers, not leaders. Mr. Dooley was a genius.