Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts "Persuasion" versus "authority" (and "authoritarianism") in the law
|
Friday, July 16, 2010
"Persuasion" versus "authority" (and "authoritarianism") in the law
Sandy Levinson
Linda Greenhouse has a typically interesting column online in which she argues that the era of the "Kennedy Court" is effectively over, that the Court is now rather firmly in the hands of the conservative majority of which Kennedy is now a fairly consistent part (rather than the "swing justice" who is willing, on a suitable number of occasions, to break ranks). At best, he is the Scott Brown of the conservative bloc, which, for liberals, is far better than his being Mitch McConnell, but still not worth praising to the skies.
Comments:
I respect her columns (not too long ago she wrote an eloquent one on DeShaney), but I'm not sure if I totally buy her argument.
On the death penalty, homosexual rights, detainee rights, and probably some other issues, Kennedy is not purely "conservative." As the worthwhile book cited in the piece suggests, he truly has cause to be considered a 'libertarian' justice. The "Scott Brown" reference is really crude too. Need I list the cases that offer more than what Brown will ever? Speech clearly is influenced by who is speaking though Kennedy was speaking of a "principle" (not fact) found in a certain context (the university in question). As the SC having the final word, up to a point: the safety valve is (see Lawrence v. Texas) that changing times can lead the justices to determine a new rule is appropriate w/i the limits of the Constitution. As David Strauss notes, so does "common law judging" as a whole. I'm not sure why Ginsburg is supposed to retire with dispatch. Her personal situation itself would seem to sympathize if she staid on a few more years. With two new justices, it seems reasonable in fact for the veterans to stay on for a few years to determine that wing gets their feet wet. I don't think "18" is some magic number. Brennan's 18th year would have been in the mid-1970s! Finally, an election year is not the best time to retire. So, I would say that post-2012 would be ideal for that reason too.
With respect both to Joe and to Justice Ginsburg, I think that her "personal situation" is utterly irrelevant as to whether she should remain on the Court. That's the difference, after all, between self-regarding and public-regarding perspectivs. If she believes that she truly brings a uniquely important perspective that would probably be lacking in a successor, that's a good reason to remain (though I suspect she'd be kidding herself). But the fact that being on the Court gives her something to do is not a sufficient reason to stay. (I don't mean to be snarky. I admire Justice Ginsburg, but so what, unless I truly believe she brings a uniquely wise perspective to the Court, which I don't.)
With respect as well, I only said "sympathize," and provided two more substantive reasons against her retiring in 2012.
I agree her personal situation doesn't give her some right to stay on. But, if 18 is no magic number, and there is in effect a tie (Ginsburg and Breyer), him going first for that reason is not really horrible to my mind either.
One of the tea leaves that predicted Souter and Stevens retirements was their hiring only one clerk for the term after their final term. According to ATL blog, Ginsburg has hired at least two and perhaps four clerks.
I'd like to point out that Ginsburg could retire in 2011, which is not technically an election year. The last six retirements, however, have all been in the two years following a presidential election (Rehnquist, of course, did not retire of his own volition, but the fact is still true). The last justice to retire following a midterm was Marshall, and before him, Powell. One reason that lead to Kennedy's nomination was that two failed nominations pushed the timeline extremely close to the 1992 presidential election. A democratic senate could stall until after the election in the hope of a democratic president. In sum, I don't see a political reason that makes a retirement the year following a midterm election problematic.
Sandy,
I recall that the rule only requires a justice to stay on the court for 15 years before becoming eligible to retire with full pension; so I am not sure where you got the magic figure of 18 years from.
My use of "election" referred to in particular the presidential election, not midterms, particularly of the nominating President. I'm sorry for any confusion. This is why I highlighted 2012.
The use of "technically" suggests the writer realizes that the cycle would have truly begun that year. With this clarification, as well as the heightened partisanship of recent years (more so even than the 1990s), the data provided becomes much less instructive. I don't know what the Kennedy reference concerns. He was confirmed during the Reagan Presidency. Brennan retired in 1990. Marshall retired in 1991. As to "18," that is some number based on an ideal tenure of the justice as a whole, not a matter of him/her being eligible for retirement benefits. Ginsburg has told people she will stay on for a few more years. Some thought her health would require retirement, but apparently, she is doing fine in that department.
For me, 18 is the ideal number because there are nine justices, and if we had fixed terms, then there would be a new appointment every two years, and no given president could "pack the Court" with judges serving full 18-year terms (inasmuch as the kind of system I (and others) envision would have judges serving in given slots, so that a justice who retired--or, more likely, died--in mid-term would be succeeded only for the length that is remaining. If we had a seven justice court, then I'd be happy with 14-year terms, which is (roughly) the average around the world for judges serving on the highest "connstitutional court." And, for what it's worth, only one state--I think Rhode Island--has "full life" tenure. All of the others have limited terms or an age limit of 70.
Thank you for explaining the 18 years 'rule.' On the other hand, is it your view that life-time tenure on the SC is ...what.. not really what anyone intended? Or, more likely, just not good policy?
My WV is fortar, which seems curiously close to fortas.
Sandy, I really like that idea of alternating a Justice every 2 years.
What I'm concerned about, however, is your prognostication that Obama is a cinch for another 4 years. Are you serious? My friends and I have been discussing the growing possibility that Hillary Clinton will challenge Obama, and beat him soundly. My goodness man, have you seen her new hair-do? Is any further proof really needed? On the Republican side, at this point, they could nominate Mick. E. Mouse and he'd beat the pants off of Obama. He's actually tied with Palin - yes, that Palin - in prelim polls, and virtually every other legitimate candidate (which necessarily rules out Palin) is ahead of Obama by a comfy margin. Barrack Obama is out of his league. He needs to be out of his job as well. Let's just hope it happens at the end of 4 years and not before, lest the bumbling buffoon takes over. At that point, I really will consider relocating to Australia.
@Jay
Post a Comment
Oh wow you really had me going there, until your last line about Australia. Gonna mooch off their universal health care, eh mate?
|
Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |