Category: Supreme Court


Will Republicans Filibuster Kagan’s Nomination?

Politics is messy and complicated, and it seems like it has gotten extra messy since Obama took office. On many issues on the political agenda, Republicans are united against President Obama. Killing bills requires that Republicans maintain their 41-member “opposition coalition” in the senate.

Tom Goldstein at SCOTUSblog discusses what we can expect from senate consideration of the Kagan nomination, both in terms of process and substance. A topic that hasn’t received enough attention, however, is whether the war between Obama and the Republicans will carry over to the Supreme Court nomination. Will Republicans filibuster Kagan’s nomination? With the midterm elections coming up and the congressional session ending in December, would it be tactically smart for Republicans to delay confirmation?

Some considerations:

1.  Republicans will likely pick up seats in the senate as a result of the midterm elections. Republicans may be thinking: Let’s make Obama nominate someone in a new political context in January — one that will likely be more favorable toward Republicans. Force his hand and make him renominate Kagan (or someone else) in, say, a 55-45 senate instead of a 59-41 senate. Obama might even back down and change his nomination.

2. What basis would Republicans rely on for delaying Kagan’s nomination? Answer: the military recruiters/Solomon amendment issue. I believe that this issue, if framed effectively by Republicans, could become a significant obstacle to Kagan becoming a justice. Think of the hot-button nature of this issue: pro- versus anti-military in the context of a continuing war on terror and the issue of the U.S.’s volunteer army having a hard time maintaining numbers.  Add to this one of the most polarizing issues in American politics: gay rights. Republicans could portray Kagan as anti-military and overzealous in her advocacy of gay rights. This portrayal of Kagan as an extremist on two hot-button policy dimensions would provide plenty of ammo to delay, and perhaps quash via the filibuster, her nomination. As a result, Obama would be forced to either renominate Kagan or find someone else who could muster the 60 votes necessary to proceed to an up-or-down vote.

3. What about the issue of having an 8-member Court? Having an 8-member Court for the start of October Term 2010 would benefit conservative interests. The Court would have 4 solid conservative votes, Kennedy (who has become more solidly aligned with the four more staunch conservatives), and the 3 remaining liberals. Having a vacancy on the Court would not bother Republicans on policy grounds. But if Democrats effectively emphasize the importance of filling a vacancy as soon as possible, perhaps Republicans would relent. As a side note, Justice Stevens could have made this vacancy issue moot had his retirement been conditional on the confirmation of his successor, which is what Justice O’Connor did (recall that she did not step down until Alito was confirmed).

While the chances of the Republicans delaying or even killing Kagan’s nomination are probably small, I believe it is a real and distinct possibility. Because of the fiery policy issues that it evokes, Kagan’s “military recruiters problem” provides an ideal vehicle for Republicans — if framed effectively — to wreak havoc on her nomination.


More on Kagan….

While many people know the general career path of Supreme Court nominee Elena Kagan, Tom Goldstein at has written an in-depth profile of Kagan that is extremely informative.

Something I found particularly interesting (quoting from the SCOTUSblog piece):

In a 1995 review of Stephen Carter’s book on confirmation hearings, “Confirmation Messes, Old and New,” Kagan criticized senators for failing to ask, and nominees for refusing to answer, questions about their views on specific issues.  Senators ought to dig deeply, she contended, asking straightforward questions about both the nominee’s judicial philosophy and her substantive views on constitutional issues: “The critical inquiry as to any individual similarly concerns the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution” (934). Nominees could be asked about their views on particular issues that the Court regularly faces, such as “privacy rights, free speech, race and gender discrimination, and so forth” (936). On this view, a nominee ought to refrain only from expressing a “settled intent” to vote a particular way on a particular case that might come before her.


The Kagan Nomination

Various news outlets are reporting that Elena Kagan will be the next Justice pending confirmation.  Earlier today I said this would be a really lackluster and troubling choice.  Troubling, I think, was too strong. But I’m sticking with lackluster.  Her nomination is like going to a five-star restaurant with a fantastic dessert menu and ordering vanilla ice cream.

Let’s consider the nominee’s record.  Is she a stellar Solicitor General?  Hardly.  Her office’s handling of Citizens United was a disaster and her oral arguments in other cases were plodding at best.  Is she an outstanding writer?  No, though you can read her (few) law review articles and judge for yourself.  Was she a good scholar?  Well, the University of Chicago Law School must not have thought so, as they apparently did not ask her to come back after she served in the Clinton Administration.  Does she possess a judicious temperament?  The people who worked most closely with her and for her will have to answer that one.

Ultimately, her only real credential is that she was a good dean at Harvard Law School.  (Of course, she was a good dean during the bubble and got out just as the gravy train left town, but that’s not her fault.)  Is that supposed to be compelling?  I don’t see why.  Able administrators are important, but I don’t think that correlates with what makes someone a good appellate judge.

Now am I saying that Kagan should be rejected?  No.  I’ve made it clear with respect to Goodwin Liu’s nomination that I think the President’s picks should be approved by the Senate so long as the person is qualified and falls within the mainstream of the President’s party.  The SG clearly fits the latter criterion and (marginally) meets the first one.  (I mean, she not Harriet Miers.)  And who knows, maybe she’ll turn out to be a great Justice.  But it’s a risky bet.

UPDATE:  So who will the new SG be?


The New Justice

Building on Brandon’s post, I sure hope that the President does not pick Elena Kagan.  I think that she would be a really lackluster and troubling choice.  But I’ll hold my fire until the nominee is announced tomorrow.


Will Kagan be the Next Supreme Court Justice?

First, I’m thrilled to be guest blogging at Concurring Opinions. I look forward to an illuminating conversation regarding the Supreme Court’s next justice.

Mike Allen at Politico reports that, based on White House sources, Elena Kagan will be the next Supreme Court justice (thanks to Dave Hoffman for sending the story). Author of the reliable “Playbook” on Politico, Mike Allen is a force to be reckoned with. Of course, once word leaked that Kagan was the one, the White House sought to diffuse the rumors, claiming the president has not yet made his decision. This leads to speculation, of course, over whether the White House is floating a test balloon. They may want to test the reaction to hot-button issues like Kagan’s opposition to military recruiters at Harvard, which would undoubtedly be a dominant theme in a Kagan confirmation process.

My prediction for the next justice, which I realize is probably now incorrect given the latest developments, was Judge Diane Wood.  Back in December, Mike Sacks at First One at One First made a compelling case for Judge Wood. Above the Law also makes an in-depth argument for Wood. In addition, the New York Times had an interesting story a few weeks ago about Judge Wood’s persuasive abilities, at times even winning over her conservative — and legendary — colleagues, Judges Posner and Easterbrook.  That story further convinced me that Wood would be the one. President Obama may see her as a potentially persuasive force on a polarized Supreme Court. But she is widely perceived to be more liberal than Kagan, and she has an established judicial record. Though I will say that if a Kagan confirmation process turned almost completely on the military recruiters issue, then Kagan is going to be perceived as quite liberal and painted as extreme in her views. So in the end, who would really be perceived as more liberal once the confirmation process starts gaining momentum? Kagan or Wood?


Fragmented Opinions

When Chief Justice Roberts was nominated in 2005, there was a lot of discussion about his goal of reducing the number of 5-4 opinions.  That hasn’t worked out, but I was never sure about how much that matters.  With rare exceptions, the fact that an opinion is sharply divided is irrelevant.

Salazar v. Buono, which came down yesterday, illustrates a real problem that the Chief should work on — cases where the Court cannot produce a majority opinion at all.  That is a totally unsatisfactory result that drives attorneys, government officials, and lower court judges batty.  I wonder whether the Court should adopt a norm that if it cannot agree on a majority opinion the writ of certiorari should be dismissed as improvidently granted.  (Note that this is different from a five-person majority opinion where one member writes separately. In that case, you at least have a short at extracting an intelligible holding.)  There are instances (a case in the Court’s original jurisdiction, for example) where even a splintered decision is better than nothing, but usually that is not the case.  There’s nothing wrong with leaving the lower court opinion in place and taking up a similar issue in a subsequent case where a clear decision can be rendered.


Dissenting Without Opinion

It used to be a common practice for Supreme Court Justices to dissent without writing an opinion.  Today we would think that this was strange, and as far I can tell the change came around 1940 with the retirement of the “Four Horsemen” who opposed the New Deal.  Why was this norm for judicial behavior abandoned?

First, prior to 1925 the Court did not have discretion over its docket.  As a result, the Justices heard a lot more cases than they do now.  Furthermore, many of those cases involved federal common law (torts, contracts, etc.) that were relatively unimportant.  Under those conditions, people were probably more tolerant of a Justice who simply noted his position and saved the written opinions for important cases. Second, Justices in that era only had one clerk (or before that none).  Thus, if a member of the Court was elderly or ill there would be every reason to think that he could not write.  Today (though we don’t say so explicitly), there is a stronger expectation that such a Justice can still produce opinions.

Are there any other possible explanations?


Book Review: Friedman’s The Will of the People

Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (Farrar, Straus and Giroux, 2009) 624 p. $35.00

Barry Friedman’s The Will of the People, is a terrific account of the interplay between public opinion and the Supreme Court.  The heart of the argument focuses on the Supreme Court’s doctrinal about-face in response to Franklin Roosevelt’s court packing plan.  The standard explanation treats the Court’s doctrinal shift as an embarrassing anomaly.  Generations of constitutional law teachers have told their students that Supreme Court decision-making is driven by the law, not public pressure, except, as occurred in the 1930s, in highly unusual circumstances.  The Court, it is said, is designed to withstand the buffeting of popular winds.

In The Will of the People, however, the Court’s famous doctrinal shift in the 1930s is seen as the rule, not the exception.  The standard story told by constitutional law professors to their students is bunk as (p. 9) “[h]istory makes clear that the classic complaint about judicial review—that it interferes with the will of the people to govern themselves—is radically overstated.”  The Court changed course because it learned that it would not be permitted to (p. 4) “stray too far from what a majority of the people” want.  Rather than check majorities as the framers envisioned, the Court engages in a dialogue with the public over the meaning of the Constitution.

Of course, an account that argues that the Supreme Court is responsive to democratic currents raises empirical and theoretical issues.  The empirical question is why does the Court heed public opinion; the theoretical question is why do we need the Supreme Court if, like Congress, its job is to aggregate public demands.  The answer to both questions lies in the interplay between constitutional law and public backlash.  The Court fears public anger and eventually trims its sails if there is sufficient outcry.  The Court, moreover, channels citizen input differently than does Congress.  Congress responds to the immediate desires of the electorate whereas the Supreme Court listens to its long-term demands.  A greater degree of mobilization is required to influence the Court than is needed to influence Congress.  It takes a sustained wave of public anger to convince the Court to change course.  In short, the Court’s attenuated relationship to popular opinion makes constitutionalism possible.

The book defends this thesis by providing a masterful portrait of the interplay between doctrinal change and popular input throughout the course of American history.  In The Will of the People, the Court swims in the sea of public opinion, not the law.  The usual actors in political accounts of the Court—Presidents, Justices, and Senators—recede in the background as We the People move to the center stage.  Even those who disagree with the book’s thesis will find much of value in thinking about the relationship between ordinary citizens and the Court.  The Will of the People is an important corrective to constitutional law casebooks and should be on the shelf of every teacher of constitutional law.


Miguel Schor is a professor of law at Suffolk University Law School.  To read some of his scholarship, click here.


The U.S. Supreme Court and Privacy Law

I can’t help but note that there are quite a few cases on the U.S. Supreme Court calendar involving privacy law:

City of Ontario v. Quon

(Fourth Amendment, electronic communications of government employees)

(my thoughts are here)

NASA v. Nelson

(constitutional right to information privacy)

(my thoughts are here and here)

Snyder v. Phelps

(intentional infliction of emotional distress, intrusion upon seclusion)

(my thoughts are here and here)

Sadly, though, only in 1 of the 3 cases above do I think the privacy claim ought to prevail.  Regardless, these are exciting times to be a privacy law scholar.  But it is always an exciting time to be a privacy law scholar — so many interesting things going on.  If you’re not a privacy law scholar, you’re really missing out!

UPDATE: In the comments, Omer Tene points out another privacy case before the Court — Doe v. Reed, the case involving whether the state could compel disclosure of the identities of those supporting Proposition 8 (an anti-gay marriage proposition in California).  I have not studied this case in depth, but from what I know, my preliminary take is that the First Amendment bars the disclosure.