Category: Supreme Court


In Defense of Umpires

We’ve been treated of late to a fair amount of commentary on umpires and supreme court justices, most of it dismissive. Chief Justice Roberts’s remarks during his confirmation hearings about judges as umpires has been attacked in the pages of the New York Times by Geoffrey Stone, for example, as either naive or — more likely — dishonest. I’m not, however, convinced that the umpire analogy is the jurisprudential gaff that those among the con law chattering class have been making it out to be. Read More


Deference at Oral Argument

I’m reading Jeff Shesol’s new book on FDR’s Court-packing plan, and I learned something that I didn’t know. Through at least the 1930s, there was a tradition at the Court that when the Attorney General argued a case he would not be interrupted with questions from the bench.  I wonder how this practice got started and when it ended.  It’s amusing to think about that now — Eric Holder would get, what, 30 seconds of silence at most.


“With the possible exception of Ruth Ginsburg”

In an interview with Adam Liptak, Justice Stevens stated that

every one of the dozen justices appointed to the court since 1971, including himself, was more conservative than his or her predecessor. “We’ll wait and see to see if the most recent change fits that,” he said of Justice Sonia Sotomayor, who joined the court last year. “But prior to Sonia’s joining the court that was true with the possible exception of Ruth Ginsburg.”

This seems largely correct in diagnosing the trend: Breyer is more conservative than Blackmun, Scalia more conservative than Berger, and so on. But I would think that Justice Ginsburg merits more than simply the “possible exception” label. She replaced Justice Byron White, whose record is substantially more conservative than hers (among other things, Justice White authored the majority opinion in Bowers v. Hardwick, and he dissented in both Roe v. Wade and Miranda). “Possible exception,” indeed.


Caperton and campaigns for the U.S. Supreme Court

Several political scientists have compared the federal judicial appointments process to state elective judicial campaigns. There are media campaigns with a blizzard of op-eds and directed advertisement in particular states, attack ads, lots of spin, and fund raising appeals, all with the ultimate aim of making it more or less likely that a particular individual will occupy judicial office.

In semi-retirement, Justice Sandra Day O’Connor has criticized state elective judiciaries and the effect money and campaigning have on state-level judicial independence. I’m going to venture a guess that far more money is spent supporting/opposing a campaign to get a justice appointed to the U.S. Supreme Court than to any particular state supreme court race. In light of the fact that federal appointments campaigns increasingly resemble state elective campaigns, should Justice O’Connor’s concerns about the influence of money on judicial independence extend to the appointment campaigns waged over the federal judiciary?

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Ifill on Supreme Court needs

Much of the Stevens discussion I’ve read seems to repeat the same half-dozen ideas again and again.  Sherrilyn Ifill is a refreshing exception — she just posted a fascinating list of under-examined potential factors for consideration — some Supreme Court gaps or needs, broadly speaking.  Why should the President think about appointing a Protestant to the Court, or perhaps a military veteran?  Check out Sherrilyn’s article to find out.


Confirmation Friendly Fire

It is a meme by now that Republicans will reflexively oppose any nominee of President Obama to fill the Stevens vacancy.

Of course, that observation may too narrowly describe a reflexive response equally applicable to Republicans and Democrats, conservatives and liberals. Consider a few of the left’s prediction bloopers.

1. Margaret Drachsler, the National Organization of Women, expressed her “grave concern” about the nomination of John Paul Stevens to the Supreme Court. NOW opposed his confirmation. See Nomination of John Paul Stevens to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Committee on the Judiciary, 94th Cong. 78 (1975). NOW apparently has since kissed and made up with Justice Stevens given its latest press release, which calls him a “real champion” of women’s rights.

2. Kate Michelman, Executive Director, National Abortion Rights Action League (NARAL), did no better with her statement during the Souter confirmation hearing. “[I]f confirmed, Judge Souter would destroy 17 years of precedent and cast the deciding vote to overrule Roe v. Wade.” See Nomination of David H. Souter to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Committee on the Judiciary, 101st Cong. 363 (1991). Ironically, Souter cast a deciding vote in Casey to preserve the core holding of Roe v. Wade.

3. Jeffrey Levi, then Executive Director of the National Gay and Lesbian Task Force, probably didn’t anticipate a Justice Anthony Kennedy would author Lawrence v. Texas, the opinion that overruled Bowers v. Hardwick, when he opposed Kennedy’s confirmation and said he had “a far too narrow definition of the universe of Americans entitled to the rights guaranteed under the Constitution.” See Nomination of Anthony M. Kennedy to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Committee on the Judiciary, 100th Cong. 426-27 (1989).

Oops. I guess it’s a good thing the justices (apparently) don’t hold grudges.

Perhaps the prediction problem results from the difference between horizontal and vertical stare decisis. Supreme Court justices don’t have to observe the decree of a hierarchically superior court, just the persuasive pull of a prior Court and the need to drum up five willing voters.

Perhaps it is the problem of jurisprudential drift and the effect elite opinion makers have on justices over time.

Or perhaps it is the fact that law is not merely politics by other means and law does have some constraining power.


The Stevens Resignation Is Not Contingent Upon the Confirmation of a Successor

The Above the Law blog has posted what purports to be a letter from Associate Justice John Paul Stevens to President Obama announcing the Justice’s resignation.

Interestingly, the resignation is not contingent upon the successor’s confirmation and appointment. “I shall retire from regular active service as an Associate Justice, under the provisions of 28 U.S.C. 371(b), effective the next day after the Court rises for the summer recess this year.” (emphasis added).

That means the Court will operate at eight justices if no successor is confirmed and appointed in time for October with the “liberal” bloc of the Court down a vote.

Update: Over at the New Yorker news desk, Jeffrey Toobin thinks this non-contingent method of resignation was intended to aid President Obama in timely securing a replacement. In 1968, Chief Justice Earl Warren resigned contingent upon his successor’s confirmation (the same technique used by O’Connor, among others). I assume that Chief Justice Warren also  intended to benefit President LBJ by providing a parachute should the Fortas confirmation fail (as it did). Who is right, Stevens or Warren? I’d be interested in hearing your thoughts. Which helps a President more, contingent resignation or an unconditional resignation?


Chief Justice Roberts and Legal Scholarship

In response to questions after giving a speech, Chief Justice Roberts expressed how he generally ignores legal scholarship.  According to the WSJ Blog:

Roberts said he doesn’t pay much attention to academic legal writing. Law review articles are “more abstract” than practical, and aren’t “particularly helpful for practitioners and judges.”

This view is frequently stated by practitioners and judges, but I find it kind of glib and dismissive.  It is true that a lot of legal scholarship is written for an academic audience, but a lot is written with practitioners and judges in mind.

It is easy to make broad generalizations about anything.   It is easy to just brush tens of thousands of articles and books aside in a sweeping stereotype.  Its kind of like saying all horror movies are bad because many are.  But then you might be missing some great movies like Psycho or The Shining.

Today, there’s a tremendous wealth of legal scholarship — much more being produced than ever before — and there’s stuff being written for many different kinds of audiences.  A lot is written for other academics.  Some legal scholarship appeals to lay readers.  There are also very useful articles for legislators, lawyers, and judges.

So to Chief Justice Roberts I say the following:  Today, there’s a lot of choice with almost everything, such as TV channels, magazines, and types of beer.  So, too, with legal scholarship.  Think of legal scholarship as akin to gelato in Italy, where there are a zillion flavors.  Take a closer look, and you’ll find your flavor.  But yes, between a law review article and a scoop of gelato, the gelato wins hands down.