Category Archives: Law: The Supremes

In the warm-up to an excellent essay about styles of Supreme Court jurisprudence, U.Chicago Prof. Geoffrey R. Stone recites some basic truths that seem utterly lost on most of the US press. And I have to wonder how many law students today understand that the Supreme Court today is a reactionary court.

The University of Chicago Law School Faculty Blog: Constitutional Vision The current Supreme Court is not “balanced” in any meaningful sense of that term. It is, in fact, an extremely conservative Court – more conservative than any group of nine Justices who have sat together in living memory. Here are some ways of testing this proposition:

• Seven of the current nine Justices were appointed by Republican presidents.
• Twelve of the fourteen most recent Supreme Court appointments have been made by Republican presidents.
• Four of the current Justices are more conservative than any other Justice who has served on the Court in living memory.
• The so-called “swing vote” on the Court has moved to the right every single time it has shifted over the past forty years, from Stewart to Powell to O'Connor to Kennedy.
• As Justice Stevens recently observed, every Justice who has been appointed in the past forty years was more conservative that the Justice he or she replaced.
• If we regard Warren, Douglas, Brennan, and Marshall as the model of a “liberal” Justice, then there is no one within even hailing distance of a “liberal” Justice on the current Supreme Court.

In fact, the current Court consists of five conservative Justices, four of whom are very conservative, and four moderate Justices, one of whom, Ginsburg, is moderately liberal. As Justice Stevens recently observed, it is only the presence of so many very conservative Justices that makes the moderate Justices appear liberal. But this is merely an illusion.

My own views are probably somewhere between Justice Stevens's and Justice Brennan's, but whatever your views, this must surely be recognized as a factually accurate description of the current Supreme Court.

By the way, I do recommend the entire essay — that was just the warm-up.

Pat Gudridge:

From the front page of the New York Times: “Investors' Suits Face Higher Bar, Supreme Court Rules.”

Issued yesterday, the Court's majority opinion in the Tellabs case starts from the proposition that plaintiffs bringing securities fraud suits must allege (in their initial complaints — in advance of discovery) facts in sufficient detail to show statements attributable to defendants to be false either because of affirmative misrepresentations or because of notable omissions — and also facts suggesting defendants knew the statements were false (the so-called scienter requirement). There's nothing new in this. But the majority also held (this was new) that, to be well-pled, facts regarding scienter, more or less like facts regarding falsity, must appear from the allegations to suggest that inferences of scienter are not just plausible or reasonable — but rather cogent, at least as compelling as any opposing suggestion, given the alleged facts, that there was no knowledge of falsity on the part of defendants.

Too complicated, too boring: who cares?

Continue reading →

Paul Horwitz at Prawfsblawg points to an amazing live recording of the sometimes odious and usually brilliant Justice Oliver Wendell Holmes, Jr. made at the conclusion of a symposium in honor of his 90th birthday.

Truly a dead voice from the past.

And as Faulkner said, “The past is never dead. It's not even past.”

[I'm in Italy until late Wednesday, so I queued up a few posts to cover while I'm away. This is one of them.]

I was a student of Harold Koh's about 20 years ago. We have not kept in close touch since, although I do see him at the occasional conference or alumni event.

The Harold Koh I knew was a pretty cautious and conservative guy. He generally took the conservative view in his national security law class, and tended to praise the people who expressed right-wing views (e.g. on judicial inability to interfere with the executive), much more than the left. If he harbored many views even a hair to the left of center, he kept them well hidden while tearing into the paper of mine he supervised. I admired him as a serious, disciplined scholar, and have tried to model one or two of my habits on what I saw of his.

Watching him from a distance, it has seemed that he has gradually become a bit more liberal politically as the country has been in the grip of a kleptocratic gang masquerading as conservatives, and has been particularly forceful on traditional issues such as being against torture and for decency. Really radical stuff. And he's certainly been a tremendous Dean for Yale Law School.

Thus it's shocking to learn about The Scary Prospect of Harold Koh as Potential SCOTUS Nominee from none less than ProfessorBainbridge.com®.

“There can be no doubt,” writes ProfessorBainbridge.com®, “but that Koh would be a liberal activist of a stripe we haven't seen since Brennan and Marshall. The personal policy preferences of elite left-liberal salons would rule, rather than the rule of law.”

Now, I'm as unwilling as the next guy to have the country run by any salon, even SALON®. But really, Harold Koh as a wild liberal activist? I don't think so. Much as I like him.

When I saw this headline at CNN, I thought it was some sort of early April Fools joke, but it’s real: Scalia addresses wild-turkey hunters

Scalia addresses wild-turkey hunters.

Scalia addresses wild-turkey hunters.

Yes, it’s real.

(Actually, there’s nothing necesarily wrong with a Justice addressing “the nonprofit turkey federation” which “is dedicated to conserving wild turkeys and preserving hunting traditions.” But it’s still a funy headline.)