Category: Supreme Court


Republicans Come Out of Hiding

After weeks of virtual silence, Republicans are stepping up their public attacks on Supreme Court nominee Elena Kagan. And they are using some rather strange arguments. The new line of attack is that Kagan is incapable of being impartial because of her political/policy role in the Clinton administration. Senate Minority Leader Mitch McConnell, who on Sunday would not rule out a filibuster of Kagan, is leading the charge with a new narrative that Kagan is more of a “political operative” than a lawyerly type. McConnell cites memos that Kagan wrote about campaign finance reform while she worked for Clinton. Quoting McConnell from the Senate floor:

In other words, these memos and notes reveal a woman whose approach to the law was as a political advocate — the very opposite of what the American people expect in a judge.

Sen. McConnell’s logic would cast nearly every justice who ever served on the Court as an “advocate” seemingly incapable of being impartial. What Sen. McConnell — and frankly all senators, both Republican and Democrat — apparently needs to remember is that lawyers are supposed to be zealous advocates for their clients’ interests. While Kagan’s role in the Clinton White House was as a policy adviser and not as a lawyer, the role she played parallels the manner in which a lawyer represents a client. As Obama spokesman Ben LaBolt notes, Kagan simply gave Clinton advice “that reflected the president’s well-established views.” She worked to advance Pres. Clinton’s agenda, just like a lawyer works to advance his/her client’s interests. Most Supreme Court justices were lawyers who represented clients before they entered the judging profession.  They worked to advance their clients’ interests.

It is clear that Sen. McConnell and fellow Republicans are trying to dig up new criticisms of Kagan in the run-up to the confirmation hearings. But this line of attack is weak and would cast doubt on all of the sitting justices. Chief Justice Roberts and Justice Scalia worked to advance the interests of Republican presidents before they were judges. Justice Breyer was special counsel to the Senate Judiciary Committee, where he worked with then Chairman Sen. Ted Kennedy. And Justice Ginsburg worked to advance women’s rights as an ACLU litigator. All were simply doing their jobs — being advocates for their clients/bosses. Beyond these examples, several former justices, of course, served in explicitly political capacities, e.g., Justice O’Connor was a state legislator, some justices were senators prior to service on the Court, and Chief Justice Taft was president before joining the Court.

Photo credits:  Stephen Crowley/The New York Times


Your (Vanishing) “Day in Court”

If you think you’ll have your day in court when disgruntled by employer mistreatment, think instead that you’re likely to be headed for dispute resolution by a professional arbitrator, not a jury or judge. Ditto consumers of cell phone service and credit card users.

Standard form agreements in these settings contain dense boilerplate no one reads and no one could negotiate if they did. Common clauses say all employee or consumer disputes must be submitted solely to binding arbitration, barring access to the courthouse. They often spell out how the arbitration will work, usually putting limits on how much information you can discover during the process and splitting the costs evenly at 50-50, despite resources usually of uneven proportions.

Another frequently appearing clause caps the amount of damages you may get in the proceeding, invariably much lower than might be obtained in traditional court proceedings. For instance, a cell phone contract may say any damages can’t exceed $500 or some amount related to annual billings. Yet a claim for breach of the confidentiality provisions of such a contract, whether they are express or implied terms, can result in damages vastly exceeding that.

You may be tempted to think you’d at least have a day in court to consider the validity of the contract dictating mandatory arbitration on lopsided terms and capping damages at nominal levels, but you’d be wrong about that too. Most such agreements also have a capstone clause saying questions like that are also for the arbitrator to decide. You might then think at least that kind of clause could first be tested for validity in a court, and though you’d be right, that means precious little.

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The Hand of God

As the World Cup begins (and a groove on my couch awaits), the thought occurred to me that the Justices are more comparable to those officials rather than (as Chief Justice Roberts famously said) baseball umpires.  Consider the following:

1.  Umpires rarely change the outcomes of a game.  Soccer referees do all the time.  (Just ask Ireland.)

2.  Baseball is a rule-bound game.  Soccer gives the referee lots of discretion (whether to award a penalty kick or not, whether to red card somebody or not, etc.)

3.  Soccer fans frequently accuse the ref of being biased.  You rarely hear that about umpires.

4.  An umpire can have his call corrected by his colleagues.  There is no appeal from a soccer referee’s decision.

Which of these sounds more like a Supreme Court Justice?

P.S.  No Bilski today, in case you were wondering.


Unintended Consequences

Small legal changes often have major unanticipated effects.  Consider the following example:

In 1932, Congress decided to demonstrate its fiscal discipline (during the Depression) by reducing the pension for federal judges by half.  Justice Willis Van Devanter (depicted right) was planning to retire following the presidential election that FDR won.  So was Justice George Sutherland.  They both put off their plans, though, because they couldn’t afford to retire on that reduced pension.

In 1933, Congress restored the pension to its original level, but the damage was done.  The two justices no longer saw their pension as guaranteed and decided to stay on the Court for several more years.  In that place, they were two of the “Four Horseman” who led the charge against the New Deal.  Had they retired in 1933 or 1934, the Court-packing fight would almost certainly have not happened.  (Ironically, an increase in the pension in 1937 helped convinced Van Devanter to retire that summer.)


Return of the Necessary and Proper Clause (Just in Time for Health Care)

The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.  U.S. Const. Art. I, § 8.

The big news last week concerning the fate of the federal health care legislation was not the entrance of new plaintiffs into the litigation challenging the statute or the government’s filing its opposition brief in the suit brought by Virginia.  The big news was United States v. Comstock and the continuing resurgence of the Necessary and Proper Clause of the Constitution (quoted above).

The constitutional challenges focus on the so-called individual mandate, taking effect in 2014, which will require that most people either own health insurance or pay a penalty.  Legally, the arguments against the legislation lack merit.  As I have argued elsewhere, under contemporary Commerce Clause doctrine, Congress can impose the individual mandate as part of its comprehensive regulation of the interstate market in health insurance.  Further, the provision is structured as a tax on those who fail to purchase insurance, thus falling within Congress’s even broader taxing authority.

Rhetorically, however, the opponents’ arguments may have some appeal.  How, the critics insist, can Congress’s constitutional authority to regulate interstate commerce extend to regulating the non-commercial activity of doing nothing (i.e., not buying insurance)?  Doing nothing is not commerce, the law’s opponents proclaim.  Can you make a federal case out of taking a nap?

The answer to this rhetoric comes from the Court’s great rhetorician, Justice Antonin Scalia.

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Swing Vote

Justice O’Connor’s departure from the Supreme Court in January 2006 left Justice Kennedy as the sole “swing” voter. Political scientists often to refer to a swing voter as a “pivotal voter” or the “median voter” because in theory, the pivotal voter’s vote provides a sufficient condition for rendering a collective outcome favored by the median voter. Kennedy leans toward the conservative side of the ideological spectrum (see below) but has joined the liberal justices in some high profile cases.

Kennedy’s swing vote status on the Court has been highlighted by commentators in the context of the replacement for Justice Stevens. It is important to remember that the appointment of Elena Kagan would not transform the ideological balance of the Court (assuming Kagan would not turn out to be more conservative than Kennedy once on the Court). Replacing Stevens with Kagan leaves Justice Kennedy as the swing voter on most issues. Thus, in the run-up to the Kagan announcement, many liberals emphasized the importance of replacing Justice Stevens with someone who would be able to influence Kennedy. As noted by Darren Hutchinson, many argue that Kagan provides the perfect fit (see here as well), given her track record for reaching out to conservatives and seeking to form consensus and coalitions across the ideological divide. Political scientist and Supreme Court scholar Paul Wahlbeck, who has done extensive research on collegial interaction and influence within the Court, forecasts that Kagan’s capacity for wielding influence will be limited. Moreover, in a recent post, I suggested that Kennedy had “become more solidly aligned with the four more staunch conservatives.” Jonathan Adler took issue with my generalization, pointing out cases — such as Mass v. EPA, Boumediene, Wyeth, and Kennedy v. LA. — that contradicted my claim.

I thought I would bring some data to bear on these topics, particularly examining Justice Kennedy’s voting agreement history with the liberal and conservative wings of the Court. The data offer a generalized, empirical foundation to Kennedy’s swing vote status, offer more fine-grained conclusions than the assertion I made about Kennedy (that Jonathan Adler corrected), and offer something of a glimpse of what we can expect in the future from Justice Kennedy. All of the data reported and examined here come from the Supreme Court Database.

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“Success” on the Supreme Court: Do We Know It When We See It?

In a prior post, I made a simple, logical argument for why judicial experience, particularly U.S. Courts of Appeals experience, is an important prerequisite for being a Supreme Court justice. My argument, which I clarified further in a response, is that out of all of the jobs out there, being a U.S. Court of Appeals judge is the most similar to being a Supreme Court justice. The day-to-day tasks bear many similarities, and Courts of Appeals judges process and decide the same types of legal issues that Supreme Court justices decide. In short, being a Court of Appeals judge best prepares one for being a Supreme Court justice because of the similarity of tasks and the strong foundation that exists for understanding, processing, and deciding a wide array of legal questions in the context of a variety of case facts. You get that foundation through practice. Other jobs may give one practice for the job, but clearly, being a federal circuit court judge exposes one to a more diverse set of situations than, say, a private or government lawyer, a law professor, a law school dean, a politician, a White House Counsel, and so forth.

Several people responded with insightful comments. CoOp contributor Lawrence Cunningham noted that one should “consider that at least 40 of the 110 or so SCOTUS Justices were not previously judges and some of them were quite successful on the Court.” He included many of the usual suspects, including John Marshall, Earl Warren, Joseph Story, Louis Brandeis, and Hugo Black.

CoOp contributor Dave Hoffman stated: “So it is an empirical question – isn’t it? And I don’t think there is much evidence at all that previous judicial experience makes appellate court judges more productive, more cited, etc.”

And CoOp reader Anthony Encarnacao responded with: “[The] bottom line here [is that] experience is not the key indicator of success. Prior success in all aspects of one’s career is usually a better indicator of success.”

These three lines of thought got me thinking about how we define “success” in the context of Supreme Court justices.

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Chances of a Kagan Filibuster Unlikely (AP)

The AP reports today that Republicans are unlikely to filibuster Kagan’s nomination. Key quote from Senator Kyl, the Republican whip:

”The filibuster should be relegated to the extreme circumstances, and I don’t think Elena Kagan represents that,” said Kyl, a member of the Senate Judiciary Committee.

The story reports that Republicans plan to aggressively question Kagan on her lack of judicial experience, lack of a paper trail, and the military recruiters issue. No surprises there….

Looks like we’re in for yet another “vapid and hollow charade.”

CLARIFICATION:  “Vapid and hollow charade” is a direct quote from Kagan’s 1995 University of Chicago Law Review book review of Stephen Carter’s The Confirmation Mess . This quote in particular — and the article in general — has received a great deal of attention from bloggers and the media. The article can be downloaded HERE; see p. 941. The full sentence is: “Subsequent hearings [to Bork] have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.”


Supreme Court Action

Two notes on what the Court did (and didn’t do) today:

1.  We still have no opinion in Bilski.  I was worried about what that meant in April.  Now I’m really worried.

2.  Today’s decision in Comstock upholding the federal government’s power to order the civil commitment of sexually dangerous inmates after the end of their federal sentence was not surprising.  I was interested to see, however, that Chief Justice Roberts joined the Court’s opinion and its broad view of the Necessary and Proper Clause.  Four others Justices (Scalia, Kennedy, Thomas, and Alito) adopted a narrower reading.