Balkinization  

Saturday, June 30, 2007

"It was the Supreme Court that conservatives had long yearned for and that liberals feared"

Marty Lederman

Yup. That lede of Linda Greenhouse's just about captures the October 2006 Term.

The three primary exceptions were (i) the Masschusetts v. EPA decision (especially for its discussion on standing); (ii) the four Texas death-penalty cases that Greenhouse discusses, demonstrating that "the state and federal courts" in Texas "remain to the right of the Supreme Court" -- to the right of a 5-4 majority, anyway; and (iii) Executive war powers, where yesterday's stunning grant of the petition on a motion to rehear in Boumediene suggests that at least in this one area, Justice Kennedy might continue to break with his conservative colleagues.

Of course, a large part of this decided trend can be explained by Justice Alito replacing Justice O'Connor. 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.)

But the Chief Justice's contribution should not be underestimated. As Emily Bazelon explains in this terrific post, many self-styled liberals and moderates expressed some optimism a year or two ago that John Roberts would not be a predictable conservative vote -- as Jeff Rosen described it, that Roberts viewed himself as a consensus-builder seeking to find common ground among the Justices (as in the Solomon Amendment decision in his first Term), discouraging splintered opinions and endeavoring to avoid the impression that the Court's decisions are ideologically driven (and divided). For example, as Media Matters reminds us, the Washington Post endorsed Roberts's confirmation, even though its editorial board expected him to cast some votes they would not approve, because he had "a modest conception of the judicial function [and] a strong belief in the stability of precedent," and because "[w]hile [Roberts] almost certainly won't surprise America with generally liberal rulings, he appears almost as unlikely to willfully use the law to advance his conservative politics."

But if I'm not mistaken, 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. One might assume that in this respect, he is simply following in the footsteps of his predecessor. Yet occasionally Chief Justice Rehnquist would vote with the more liberal wing of the Court (particularly where he saw that he could not command a majority for the conservative position, as in Hibbs and Dickerson). There are not yet any such examples from the new Chief Justice. I don't think this should surprise anyone who had followed the Chief's career prior to joining the Court. But here's Cass Sunstein, as quoted by Bazelon: "I'm surprised that Roberts has shown no unpredictability at all; in the big cases, he's been so consistent in his conservatism. I thought that he was too careful a lawyer to be so predictable!"

[CLARIFICATION in response to comments: I am not suggesting that the Chief Justice is to "blame" for the lack of consenus any more than those Justices with whom he disagrees. My point was simply that he does have strongly held (conservative) views, and he's acting upon them in virtually every case, even when it means a very heatedly divided Court, and when (as in Leegin, WRtL, Carhart and elsewhere), it requires de jure or de facto overruling of past cases. Thus to the extent there were those who thought Roberts would, as in FAIR, often seek to craft resolutions that would bridge the gaps between the Justices, and that (in the Washington Post's words of endorsement), he "appears . . . unlikely to willfully use the law to advance his conservative politics," such hopes were misplaced.]

Comments:

many self-styled liberals and moderates expressed some optimism a year or two ago that John Roberts would not be a predictable conservative vote -- as Jeff Rosen described it, that Roberts viewed himself as a consensus-builder seeking to find common ground among the Justices

Isn't it rather silly to blame John Roberts for failing to build a "consensus" when the liberals themselves have the ability to stifle such a consensus? There was absolutely nothing, for example, forcing the liberals to take the position they did in the recent Sherman Act cases. How come John Roberts gets all the blame for the fact that there was no "consensus" on such cases?
 

"Sherman Act case," I mean -- the
Leegin case.
 

Or the campaign finance reform case -- there was nothing forcing the liberals to take the anti-free-speech side there. Why don't they get just a little blame for the fact that there was no "consensus"?
 

"Yet occasionally Chief Justice Rehnquist would vote with the more liberal wing of the Court..."

Not in very many (any?) 5-4 cases, though.
 

Sorry, Stuart -- didn't mean to leave that impression. I'm not "blaming" the Chief -- simply pointing out that he, like those with whom he disagrees, does in fact have strongly held views (conservative ones), and he's acting upon them in virtually every case, even when it means a very heatedly divided Court, and when (as in Leegin, WRtL and elsewhere), it requires de jure or de facro overruling of past cases.

I don't *blame* him for doing so -- I expected he would.
 

What's ironic about both of Stuart's suggestions is that the issue in both of those cases was, in essence, the respect which should be given to precedent. There once was a time when stare decisis was shouted from the rooftops as a "conservative" value. The bomb throwers now on the Court have no respect for existing precedent, a demonstrated willingness to invent "facts", and a fondness for revisionist history which would make Gus Hall blush with shame.
 

you said "That list can be found here"

but the link is bad..it goes to:
http://www.blogger.com/delete-comment.g?blogID=36951752&postID=7064802966676940884
 

"...he's acting upon them in virtually every case, even when it means a very heatedly divided Court..."

I think Stuart's point is that Roberts isn't the only cause of the lack of consensus. In saying that Roberts acts on his views "even when it means a very heatedly divided Court," you're continuing to assume the liberals have nothing to do with it, causally. But they plainly are part of the cause, aren't they?
 

Oh, wait, I read your earlier comment again and see that you're also suggesting that Roberts's opponents are digging in, even when it means a divided Court. So maybe you're conceding Stuart's basic point (as I see it) after all.
 

There was nothing about Roberts or Alito's previous record which suggested that they would be anything other than reliable conservative votes. If this is a surprise, then those who have been surprised may have been engaged in a little bit of self delusion.

What surprised me was that Kennedy hung with the conservatives fairly consistently over most of the session after straying all too often in recent years.

Maybe we can finally make some progress in reigning in some of the last few decades of judicial legislation. After electing GOP Presidents 7 out of the last 10 terms, its long past time!
 

Today is another Agree-with-Bart day:

There was nothing about Roberts or Alito's previous record which suggested that they would be anything other than reliable conservative votes. If this is a surprise, then those who have been surprised may have been engaged in a little bit of self delusion.

Exactly right, and a good reason to mistrust the judgment of pundits like Rosen.
 

Let's be clear here: Democrats were victims of their own activist groups' rhetoric.

Before politicians debate, or before they hold a primary election, they try to downplay their chances, so that even if they do badly, they'll be treated as having exceeded expectations.

Well, that's what happened here, even though it was unintended. The coalition of PfAW, Alliance for Justice, the NAACP, etc., all portray conservatives as basically drooling Neanderthal KKK members who probably want women to wear burqas. So then the president nominates Roberts, who clearly is not a drooling Neanderthal KKK member who wants women to wear burqas, and what is the Senate to do? He looks moderate compared to his portrayal.

Rinse, lather, and repeat for Alito.

There are desperate attempts during the hearings to find sound bites which can be used to portray the nominees as racists, but nominees nowadays are well-coached, and the claims just simply don't hold up for someone who doesn't believe them already.

Of course, for lesser courts senators can stall and stall, hoping to either dig up some dirt or to cause the nominee to withdraw in disgust, but that doesn't work so well for a position like the Supreme Court, which is both high profile and a situation where a vacancy is a big deal.
 

I think David's and Bart's comments are right but also wrong.

Right in the sense that of course Roberts is a conservative and this was known at the time of the nomination.

Wrong in that they are ignoring that he was basically forced through the Senate. Not only did conservatives downplay his conservativism at the time by emphasizing his supposed love of precedent and judicial neutrality, but they defamed anyone who opposed him of being an anti-Catholic bigot. Further, they effectively disabled the filibuster by advancing a spurious argument that it was unconstitutional, which they threatened to enforce using the raw power of the Vice President's presiding role in the Senate and without any regard for what the Constitution actually provides about the Senate's power to set its rules.

This meant that the fix was in.
 

Dilan:

Yes or no, via so-called "rules", do you think the Senate has the power to amend the U.S. Constitution?
 

I would just add to Dilan's post that the Senate has basically abrogated it's advise and consent function. The Senate should make policy judgments regarding appointees. It should demand substantive answers to questions. And it should stop demonizing nominees in an effort to defeat them as a substitute for doing its real job.
 

Charles:

The US Constitution provides that the Senate shall consent to legislation and give its advice and consent to judicial nominations. It also allows the Senate to set its own rules.

Either all filibusters are unconstitutional-- because the Constitution provides that everything in the Senate (other than treaties and impeachment) is by majority vote or no filibusters are unconstitutional. (And given that the Senate has had supermajority rules since its formation, the clear weight of historical practice is that filibusters ARE constitutional. In other words, the very judicial philosophy that conservatives was trying to get installed would reject the constitutional interpretation conservatives were urging.)

But the Republicans' claim-- that there was something special about filibusters of JUDICIAL NOMINEES-- was utter BS. It's make-it-up-as-you-go-along constitutionalism (something that the Republicans have done in other areas as well, namely Article II powers).

Really, for all conservatives' claims about not legislating from the bench, judicial activism, etc., they have advanced numerous interpretations of the Constitution that are much dumber and dishonest than anything that the Warren Court did or anything in Roe v. Wade.
 

Dilan:

Thanks for the clarification. Yes or no, via so-called "rules" but excluding for the moment filibusters, do you think the Senate has the power to amend the U.S. Constitution by itself?
 

Dilan: Republicans never claimed that the filibuster was unconstitutional. (Well, "Republicans" is a big group; some Republican might have done so.) They were simply going to issue an interpretation of Senate debate rules to say that those rules didn't apply to judicial nominations.


I would just add to Dilan's post that the Senate has basically abrogated it's advise and consent function. The Senate should make policy judgments regarding appointees. It should demand substantive answers to questions. And it should stop demonizing nominees in an effort to defeat them as a substitute for doing its real job.

Well, here's a point where Mark, Chuck Schumer, and I all agree.

Except that, as Mark is somewhat of a student of history, he should know that the idea of hauling nominees before Congress and demanding answers before confirming them was an innovation of anti-civil rights southern senators, who wanted to ascertain whether the judge was sympathetic to their views.

There's nothing wrong with the Senate doing its due diligence, to be sure. (In fact, that's its job.) But quizzing the nominee is unlikely to be helpful in that regard. Nobody thinks the nominee should announce how he would vote in a specific case, and generalities are worthless. Not because they're dishonest, but because "I respect precedent" doesn't mean anything.
 

Except that, as Mark is somewhat of a student of history, he should know that the idea of hauling nominees before Congress and demanding answers before confirming them was an innovation of anti-civil rights southern senators, who wanted to ascertain whether the judge was sympathetic to their views.

True enough, but the abuse of a process doesn't mean we should abandon it. There are very few, if any, processes which can't be abused.

But quizzing the nominee is unlikely to be helpful in that regard. Nobody thinks the nominee should announce how he would vote in a specific case, and generalities are worthless. Not because they're dishonest, but because "I respect precedent" doesn't mean anything.

I'm not the first one to point this out (I believe GlennNYC gets that credit), but the Court recently held that judges can express their views in campaigns for office in those states where they are elected. Given that, it would be hard to maintain the position that they shouldn't make full disclosure to Congress.
 

Charles,

Thanks for the clarification. Yes or no, via so-called "rules" but excluding for the moment filibusters, do you think the Senate has the power to amend the U.S. Constitution by itself?

Your question is irrelevant, as it has nothing to do with the statement by dilan. Please restate a relevant question.
 

Charles:

Obviously, where the Constitution requires a particular Senate procedure, the Senate cannot overrule it. For instance, the Senate cannot hold an impeachment trial of a President and refuse to permit the Chief Justice of the Supreme Court to preside over it. Ipso facto, a rule that was passed that permitted this would be unconstitutional.

And if the Constitution really did contain a provision that said that cloture votes and filibusters were impermissible with respect to judicial nominees, the Senate could not, by rule, change it.

But the Constitution does not do so. The framers knew how to require a specific percentage of senators when they wanted to. The only plausible counterargument would be to say that all filibusters are unconstitutional, because when the framers did not specify a required percentage, they meant majority up-or-down vote (although even this is completely contrary to historical practice). But that wasn't the argument the Republicans were making (because there's no way they'd ever want to get rid of the LEGISLATIVE filibuster).

So instead, they were threatening to have the Vice President LIE and declare, in his presiding role over the Senate, that judiical filibusters, and no other kind of filibusters, were "unconstitutional" in order to create a ruling they could sustain with a majority vote.
 

IIRC, the constitutional argument on judicial filibusters was, essentially, that the Senate is required to give advice and consent with respect to nominees, and that when a nomination is filibustered, it's not being given that advice and consent.

Arguably, the Constitution, not saying that the vote has to be straight majority, would allow the Senate to make confirm/reject votes subject to a supermajority requirement. But cloture votes are not votes on whether to confirm, they are votes on whether or not to even HOLD the, arguably, constitutionally required, vote to confirm or reject.

The complaint, then, isn't the size of the majority required, it's that the Senate was flatly failing to carry out a constitutional duty by refusing to act on nominations. This is, IMO, a fairly strong argument.
 

IIRC, the constitutional argument on judicial filibusters was, essentially, that the Senate is required to give advice and consent with respect to nominees, and that when a nomination is filibustered, it's not being given that advice and consent.

The word "shall" does appear in Art. II, Sec. 2, cl. 2, but it refers only to the President, not to the Senate:

"he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court".

I don't see any textual basis for the argument you suggest.
 

Brett:

1. That wasn't the argument. The argument really was that advice and consent meant 51 percent.

2. If that was the argument, it is utterly without merit for the reasons Mark Field says.

3. It is also without merit for the reason you suggest; it elevates form over substance because the Senate could just say that advice and consent requires 60 votes.

4. In any event, you can't divorce this from the context; they didn't like that their judicial nominations were biased, and they made up an argument they didn't really believe and almost all of them were prepared to vote for it and pretend that it really was a bona fide constitutional objection.
 

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