Category: Supreme Court


Justice Kagan

In the aftermath of Justice Elena Kagan’s successful confirmation (by a 63-37 vote), have we learned anything new about the Supreme Court appointment process? I don’t think so. The process continues to be highly political, with a nominee’s ideological views and “judicial philosophy” taking center stage. Kagan’s qualifications — or lack thereof, according to some — became an issue. While everyone agrees that she is very intelligent, her lack of prior judicial experience was a minor problem for her nomination, leading even moderate Republican Senator Scott Brown to vote against her. Kagan will be the first justice since Justice Rehnquist (when he became Associate Justice in 1972) not to have had prior experience as a judge.

An interesting counterfactual:  Let’s say Kagan were nominated to replace one of the conservative justices on the Court instead of Justice Stevens. In such a scenario, Kagan would have shifted the ideological balance of power to the left, thus making it a more significant, critical nomination. Would Republicans have filibustered her nomination under those conditions? It will be very interesting to see how such a confirmation process unfolds in the future if such conditions are present. With conservative justices hesitant to retire under an Obama administration, it would take death or a serious illness (that would force retirement) for Obama to change the ideological balance of the Court (sorry to sound morbid). Under these conditions, Obama might choose someone he knows could withstand rigorous Senate scrutiny given the high-stakes nature of the appointment. He would also have to consider the partisan and ideological makeup of the Senate.

The two most recent instances where a justice retired while a president of opposite ideological stripes held office were Justices Brennan and Marshall. Both retired for health reasons; President George H.W. Bush appointed their replacements. Marshall was replaced by Thomas, and we all know how that confirmation process turned out; the vote was 52-48. Brennan was replaced by Souter, though that process was not contentious. The vote was 90-9.

If President Obama does happen to get the opportunity to change the ideological balance of the Court (i.e., replace a conservative justice with a more liberal one), we can surely count on a highly dramatic, contentious appointment process far eclipsing the Kagan appointment process.


Prop 8, Gays, Homosexuals, and What is In a Name

Like many, I was glued to the blogosphere waiting for the decision in Perry v. Schwarzenegger yesterday, the Prop 8 decision. One seemingly superficial issue I have been interested in is how the court would refer to the class to which the plaintiffs belonged: as “gay” men and women or homosexuals?

I actually first started thinking about this a few months ago. A wonderful midwest law school in a smaller city invited me to a conference and arranged to have a student pick me up at the airport. This was unusually gracious, and I appreciated it, but a funny thing happened on the ride. I asked the student about the city, and what it was like to live there, etc. The student at one point said to me: “Oh, and we have a really vibrant homosexual community.”

I was a little amused that he focused on this element of the city, though perhaps something I said had primed him, or this was just a testament to the perceived role of gays in the rise of the creative classes and a city’s hipness factor. What surprised me the most, though, was actually his language — his use of the term “homosexual” in a positive way. My own anecdotal experience is that people use the term “homosexual” when they want to ascribe negative connotations, and “gay” when they want a more neutral or positive ones. A quick (and very unscientific) google search of the terms “homosexual marriage” and “gay marriage” this morning seems to confirm this.

On this view it is unsurprising, then, that Judge Walker in the Perry opinion repeatedly refers to the plaintiffs and their group as “gays and lesbians”.  What is more surprising is that I expected I would find a split in usage between Justice Kennedy and Scalia’s majority and dissenting opinions in Lawrence v. Texas, with “homosexual” being dominant in the Scalia’s opinion.  Interestingly, both opinions use “homosexual.”

So here are a few questions I am thinking about: Was my initial instinct that which term to use reflects a political valence correct? Does it instead reflect something else? Geography (think of the student driving me)? Age? A change in time over which term is more acceptable, a little bit like the way the term “handicapped” has given way to “disabled” to “people with disabilities”?  Is the usage of “homosexual” by people who do not want to expand rights for the group a subtle attempt to bring the “sex” (in the intercourse sense) back into people’s minds?  Which word do you use in the classroom? Would Lesbian, Gay, and Bisexual students be offended by the term “homosexual,” and if so, is that a good reason not to use it?


Lindsey Graham and the Advice and Consent Clause

As the full Senate takes up the Kagan nomination today, which will almost certainly lead to a successful confirmation, I am still struck by Senator Lindsey Graham’s (R-SC) comments before casting his vote in the Judiciary Committee, which reported the nomination to the floor by a 13-6 vote. Sen. Graham was the lone Republican yes vote, a redux of the Sotomayor nomination. Given the political pressure from conservative groups and his Republican colleagues to vote no, as well as Graham already being on shaky ground with conservatives and Tea Party adherents, his vote should certainly be considered a principled and courageous act. It is one, among others, that could pose electoral problems for Graham down the road.

Graham’s reasoning for voting yes on Kagan was compelling, and, somewhat ironically, it rests on his constitutional interpretation of the “advice and consent” clause of Article II (the president “shall nominate, and by and with the Advice and Consent of the Senate,…Judges of the supreme court….”). What is the standard by which Supreme Court nominees are to be assessed by the Senate? To what extent does “advice and consent” entail that senators scrutinize a nominee’s ideological preferences or judicial philosophy? According to Graham:

The Constitution, in my view, puts a requirement on me as a senator to not replace my judgment for [the president’s], not to think of the hundred reasons I would pick someone differently or pick a fight with Ms. Kagan. It puts upon me a standard that stood the test of time:  Is the person qualified, is it a person of good character, are they someone that understands the difference between being a judge and a politician? And quite frankly, I think she’s passed all those tests.

Graham is essentially calling for a restoration of a standard from a bygone era. That is, there should be a presumption that a nominee will be confirmed. As long as the person is qualified and has a solid understanding of the law and the issues that come before the Court, that person should be confirmed. Rigorous scrutiny of a nominee’s ideological views and judicial philosophy is outside the realm of “advice and consent,” according to Graham. Elections have consequences, and President Obama is entitled to choose a nominee who agrees with him on various legal issues. It would take some “smoking gun” for the Senate to reject the president’s nomination. What exactly would constitute such a smoking gun is a question that is worthy of considerable debate. The “extraordinary circumstances” standard was suggested by the “Gang of 14” a few years back, and some senators still invoke that standard.

Of course, the Constitution is not at all specific about what exactly the advice and consent clause means or entails. Sen. Graham is basing his interpretation on how numerous nominations were conducted from the founding until well into the 20th century. Today, many senators obviously disagree with Graham’s standard and believe that ideology and judicial philosophy are fair game. Many who vote “no” cite those factors as justification for their votes.

Graham’s exercise in constitutional interpretation is ironic. Senators are prone to preach at judicial hearings that judges should simply do what the Constitution says. But, of course, everyone knows that the Constitution is incredibly vague and contains considerable gray area; judges have to use their judgment to fill in those holes. Here, you have a senator grappling with the gray areas of the Constitution in trying to ascertain the meaning of the advice and consent clause of the Constitution. It is not clear what this clause requires as to how and on what bases senators should scrutinize a nominee. Graham takes a highly restraintist view, while nearly all of his colleagues take a more activist view, at least in Graham’s world. While “judicial activism” is among senators’ favorite buzzwords when it comes to judicial nominations, I doubt Sen. Graham will call out his colleagues as activists on this topic.


Doctrine as Empathetic Umpire

Testifying before the Senate committee reviewing his 2005 nomination as Chief Justice of the United States, John Roberts famously told those assembled that the job of being a justice is like being an umpire. The job is calling balls and strikes; not making rules up, just applying those already laid down. President Obama later rejected that analogy, when appointing both Sonia Sotomoyer and Elena Kagan to the Court, saying justices can’t be mere umpires.   They need to have empathy, he said.

Each of these viewpoints contains different partial truths; both emphatically demonstrate that personality plays a vital role in the docket of the Supreme Court. This underscores the political and ideological nature of the popular cases it grapples with. In that Court and in those disputes, political theory and hence ideology often prove pivotal. It’s easy to classify justices as liberal or conservative and the Court’s direction as toward the right or toward the left.

For less politically-freighted fields of law, or where the terrain is more reliably settled, it’s less accurate to speak of judges applying law in those terms—as being a mere umpire or needing empathy. Take contract law, where doctrine itself is a kind of organic empathetic umpire.

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Victory for Justice in Fensterstock

In a victory for access to justice, the Second Circuit held Monday that a student loan agreement forbidding a borrower to make claims on a class-wide basis in arbitration or litigation was unconscionable under California law and that California’s law was not preempted by the Federal Arbitration Act. It also said the agreement’s severability clause didn’t open the way to compellling class arbitration because, once the other clauses were out, the agreement was silent on dispute resolution, so it couldn’t order class  arbitration.

This is a big case as the first point addresses the issue SCOTUS will hear next term in AT&T v. Concepcion, where AT&T claims the FAA preempts California law because it discriminates against arbitration clauses compared to other kinds of contracts. The second point, on severability, takes up lessons SCOTUS articulated in last term’s Stolt-Nielsen case. It’s important as a broad and convincing contribution to intense national disputes over dispute resolution.

 The substantive objection in the case, Fensterstock v. Education Finance Partners, concerns how the lender allocated monthly loan repayments between interest and principal, using a squirrely provision allocating to interest all payments except those received exactly on the monthly payment due date. The borrower says that’s a hidden fee, stretching out loan amortization, and makes substantive claims for breach of contract and unfair trade practices. The agreement also contained a dispute resolution clause, limiting both sides to individual arbitration—not class arbitration or class litigation or any kind of litigation. It named California as governing law.

The lender wanted to compel arbitration, citing the FAA, requiring courts to do that for any arbitration clause in a contract involving interstate commerce, except those found invalid under general contract law principles. The borrower, a lawyer three years out of law school when he consolidated $52,000 in student loans, claimed the clause was unconscionable under California law and the court agreed, throwing out the clause and opening up a class action lawsuit.

The opinion is meticulous in extracting extensive block quotations from dozens of California cases on point, including the pivotal Discover Bank case. Drawing on a state statute making void contracts exculpating one from fraud, that case finds that some dispute resolution clauses in consumer contracts trip over it, being against law, public policy, and unconscionable. The statute and policy target enterprises who overcharge large numbers of ordinary people small amounts, then insulate themselves from liability using non-negotiable contracts preventing the small stakes from being accumulated to make a case worth pursuing.

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Seeing the Law Through Crude-Colored Glasses

As might be expected in such a politically charged situation, groups are charging that the district court judge who “struck down the Obama Administration’s six-month moratorium on new deep water drilling” had oil-related interests that could have influenced his decision. Now the WSJ Law Blog reports that the Alliance for Justice has prepared a report on the oil ties of two of the three judges on the appellate panel that will review the district court judge’s finding.

I imagine all these judges might point to the Scalia non-recusal in Cheney v. United States District Court to justify their own decisions to hear the case. Michael Dorf had an interesting perspective on that controversy, where the underlying litigation concerned a “2001 advisory committee on energy policy that Vice President Cheney headed.” Here are some lines from Justice Scalia’s memorandum refusing to recuse himself:

For five years or so, I have been going to Louisiana during the Court’s long December-January recess, to the duck-hunting camp of a friend whom I met through two hunting companions. . . Our friend and host, Wallace Carline . . . runs his own company that provides services and equipment rental to oil rigs in the Gulf of Mexico.

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BRIGHT IDEAS: Mike Sacks on Supreme Court Reporting from the Front Lines

Sometime before commencement of the Supreme Court’s 2009 term, Mike Sacks, a third-year law student at Georgetown University, had an idea.  Taking advantage of his close living proximity to the Court, Mike would attempt to be the first one in line for all of the major oral arguments for the Court’s term. In addition, he would interview people in line about why they were there and their impressions of the Court and the case to be argued. And, most importantly, he would start a blog to report on his experiences. Mike has been engaging in legal journalism from a unique vantage point: from the front lines — or, from the “front of the line” — of the Supreme Court. Mike’s bright idea has resulted in a successful Supreme Court blog, First One @ One First.  [Recall Mike’s mission to be the “first one” in line at “One First” Street NE (the Court’s address).] Click HERE for the blog’s mission statement. Mike’s experiences and blogging have been featured in the New York Times (see HERE as well), National Public Radio, the ABA Journal, the Washington Post’s WhoRunsGov/PostPolitics, The Atlantic, Slate, Volokh Conspiracy, Above the Law, and other outlets.

Mike’s blogging has also launched the beginning of what is likely to be a successful career in legal journalism. In fact, Mike wrote the cover story for last week’s issue of the Christian Science Monitor.  He has also been blogging at some premier legal blogs. Below, Mike answers some of my questions about his reporting experiences, his impressions of the Court’s term, and his perspective on the Supreme Court in general.

1.  Could you talk briefly about how and why you came up with this idea of what might be called “legal journalism from the front lines?”

Because Concurring Opinions is more of an academic blog, I’ll start with F1@1F’s intellectual underpinnings.  As the Citizens United rehearing approached last September, I noticed that the Roberts Court’s dockets and decisions from OT06 through OT08 appeared to track the surrounding political climate.  Once so boldly conservative on all the hot buttons when operating under the cover of Republican-controlled Legislative and Executive branches, the Roberts Court–now operating alongside Democratic political branches–appeared to have shaped an exceedingly modest OT09 docket so to have enough political capital to spend on Citizens United without irreparably damaging the Court’s institutional legitimacy.

I wanted to test my hypothesis that the Roberts Court was not only sensitive, but also responsive, to its surrounding political climate. Of course, I could have done this by reading transcripts of oral argument and digging through the decisions once released.  But I lived four blocks from the Court and had already had a blast camping out for Citizens United / Sotomayor’s first day.  When I noticed I had no morning classes for the Spring Term on the Court’s argument days, I really decided to make this an in-the-flesh project.

But I wouldn’t have followed through so thoroughly had I not had vocational motivations as well.  I entered law school very interested in constitutional law, politics, and media.  After my first year, I interned for Nina Totenberg at NPR.  That was the summer of Heller and Boumediene.  I so enjoyed that experience that I took a semester off to work at ABC News’s Law & Justice Unit in New York, where I covered the legal aspects of the 2008 Presidential Election and the Wall Street meltdown.  Once back at school and on the job market, I thought there was no better way to make myself attractive to both legal and media employers than to build a body of work on the Supreme Court beat.

Nevertheless, just another person writing about the Court out in the ether wouldn’t have been too compelling.  But getting out in line at disturbingly early hours and telling the tales of those crazy enough to join me – now that’s something no one had ever done. Indeed, if the Court is responsive to the political climate, and if public opinion on any given case is the “weather” that shapes our broader climate, then I figured those who cared enough to get out in line on bitterly cold mornings well before the sun came up would make a very good representative sample for the people who shape public opinion.  By asking these folk, “why are you here?”, I would be committing interesting journalism while also informing my research about the Roberts Court.

2.   What unique insights have your experiences over the past term given you about the Supreme Court and the justices?

Chief Justice Roberts is a superb political strategist.  He’s steering a right-of-center Court through a left-of-center government and knows which storms his ship can handle and which it cannot.  I wrote prospectively about this back in December, Jeff Rosen of The New Republic wrote about it in February, and Adam Liptak of the New York Times wrote about it just the other day.

What we’ve seen this year is the birth of John Roberts’ Court.  It will always, to a degree, remain the Anthony Kennedy Court as well, until he leaves the bench or one of the conservatives is replaced by a liberal.  But Roberts took control this year in the Court’s decisionmaking that we haven’t yet seen.  The next interesting thing to look out for is what issues beyond Miranda, guns, arbitration, and campaign finance the Chief believes are ripe for conservative gains as the Congress and the Presidency remain in Democratic hands.
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UCLA Law Review Vol. 57, Issue 5 (June 2010)

Volume 57, Issue 5 (June 2010)


Introduction to the Symposium Issue: Sexuality and Gender Law: The Difference a Field Makes Nan D. Hunter 1129
Elusive Coalitions: Reconsidering the Politics of Gender and Sexuality Kathryn Abrams 1135
The Sex Discount Kim Shayo Buchanan 1149
What Feminists Have to Lose in Same-Sex Marriage Litigation Mary Ann Case 1199
Lawyering for Marriage Equality Scott L. Cummings Douglas NeJaime 1235
Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive William N. Eskridge, Jr. 1333
Sticky Intuitions and the Future of Sexual Orientation Discrimination Suzanne B. Goldberg 1375
The Dissident Citizen Sonia K. Katyal 1415
Raping Like a State Teemu Ruskola 1477
The Gay Tipping Point Kenji Yoshino 1537


Confirmation Hearings: If I Were a Senator…

On Monday, I suggested that Supreme Court confirmation hearings would be more productive if senators were disabused of two misconceptions:  (1) that judging at the Supreme Court level is mechanistic and computer-like, and (2) that the Court should not and does not make policy. CoOp contributor Dave Hoffman noted:

I’d be surprised if anything you wrote were to surprise them. The reason that most commentators find the hearings to be a charade isn’t because the senators have one view of the constitution (shared by the public) and legal “elites” have another. It’s that everyone involved in the process knows the game but has to play anyway.

For the most part, I agree with Dave. And at the beginning of my post, I noted that these misconceptions are “either sincerely held beliefs, beliefs based on ignorance, disingenuous devices for hammering the nominee and scoring political points,” or a combination of the three. Dave’s view comes closest to the third — political posturing, “playing the game” in a disingenuous fashion. I will say this: I sometimes get the sense that some senators sincerely believe in the depictions (what I would call misconceptions) that they advance. One would have to get in senators’ heads to know their true motivations for advancing these misconceptions. But the bottom line is that they do advance them consistently.

Dave Hoffman also asked,  “What, in your view, is the proper role for the hearings?” This is a great question. The fundamental dilemma senators face is getting nominees to talk substantively about law and judging without having them discuss issues that might come before the Court in the future. If I were a senator, I would want to ask about the following issues. There are certainly others, but these are at the top of my head:

1.  Factual knowledge about legal development and case law:  One could certainly tap the nominee’s knowledge of existing case law and historical legal development in certain areas in order to get a nominee at least talking about more specific issues of law and legal doctrine, e.g., development of legal doctrine in free speech and other civil liberties issues, changes in commerce clause jurisprudence, modes of statutory interpretation, and so forth. Via this exercise, senators could get some sense of how the nominee thinks about legal issues and what s/he thinks are the most important features of case law over time.

2.  Legal reasoning:  How do you deal with gray area in the law? What do you do when “the law” does not provide a clear answer in a particular case? Since the Supreme Court takes “hard” cases with considerable gray area, there are often legitimate legal justifications for both sides of the case. What do you do in these situations?

3.  Overturning precedent:  Under what conditions does and/or should the Supreme Court overturn precedent? What are the relevant considerations at play? There was some good discussion of this yesterday during Senator Coburn’s questioning.

4.  Intricacies of legal doctrine and precedent:  In the area of constitutional law with respect to civil liberties and civil rights, I would want the nominee to talk about the strict scrutiny, intermediate scrutiny, and rational basis standards in a factual sense first. Then, more specific questions on application. How do justices know which standard to apply to different classifications or case facts? Under what conditions (if any) can strict scrutiny be overcome? Define a “compelling governmental interest.” How does one implement the intermediate scrutiny standard to a set of facts? Regarding rational basis, what passes for a “reasonable” or “legitimate” governmental interest? Aside from constitutional law, senators could ask the nominee about theories of statutory interpretation. By what methods do justices ascertain the meaning of a statute? What considerations are at play in statutory interpretation?

5.  Certworthiness:  What considerations do justices face when deciding whether to grant cert to a case? This was discussed quite well yesterday, and Kagan gave some good answers re: conflict in the circuits, when a circuit court strikes down a law as unconstitutional, etc. What other factors would the nominee look to in order to decide which are the most important cases?

6.  Oral arguments:  What information would you want from lawyers at oral arguments? What is the ultimate informational value of oral arguments?

7.  Opinion writing:  What would be your style of opinion writing? How would you approach writing a majority opinion? What is the primary function of an opinion (re: a guide for lower courts)?

8.  Ideology and discretion:  Since the cases that come before the Court contain a great deal of gray area, a justice has significant discretion to use his/her judgment to decide a case. How do/should justices use that discretion? Why do justices disagree on legal interpretation? What are the foundations of that disagreement? Why do disagreements about legal issues on the Court typically split along ideological lines? Does this mean that policy preferences are influential in decision making? Of course, nominees will never say that their ideological or policy preferences influence their decisions (as was apparent from yesterday’s questioning). These questions would be designed to get the nominee to talk about ideology in a more indirect way.

I realize that even these questions, though they do not ask the nominee to comment on cases that may appear before the Court in the future, may not elicit the type of substantive discussion that I think should be the goal of the hearings. But this would be a start, I think. And actually, in watching the hearings yesterday, I thought there was a moderate degree of substantive back-and-forth between senators and Kagan. I think these hearings have been much more informative than the Sotomayor hearings.

Photo credits:  Luke Sharrett/The New York Times


Confirmation Hearings: If I Could Disabuse Senators of Two Things…

As the Senate Judiciary Committee begins confirmation hearings today for Supreme Court nominee Elena Kagan, be prepared for many shallow questions from senators and many empty answers from Elena Kagan. These hearings often turn into “vapid and hollow charades” (to quote Kagan) because senators’ questions are based on misconceptions of judging at the Supreme Court. These misconceptions are either sincerely held beliefs, beliefs based on ignorance, or disingenuous devices for hammering the nominee and scoring political points. It could also be a mixture of the three. Confirmation hearings would be much more productive if senators were disabused of two misconceptions.

1.  Mechanistic judging:  We will hear senator after senator say something to effect of, “We need impartial justices on the Court who will follow the law as it is written and respect precedent. We need strict constructionists, not judicial activists on the Court.” The computer-like, mechanical jurisprudence view of judging — where judges simply apply “the law” to the facts of a given case like a technician — is a straw man, plain and simple, particularly at the Supreme Court level. It is a view of judging that cannot be taken seriously. The Supreme Court takes cases that contain a high degree of legal ambiguity. The justices deal in the gray areas of the law, not the black and white ones. Thus, simply applying “the law” in a straightforward fashion is not possible or realistic at the Supreme Court level.  “The law” in a given case — precedent and legal doctrine, constitutional provisions, statutory provisions — is never completely evident and rarely provides a clearly-defined answer to the question in a case. Justices, then, have considerable discretion to use their own judgment to render a legal rationale and interpretation applied to the facts of the case. And guess what, senators? Justices frequently disagree with each other on how certain provisions should be interpreted. Justices also have policy preferences that color their judgment to an extent — they are humans, not computers. This does not mean that law does not matter at all. But since the cases the Court hears contain considerable gray area, which naturally gives justices considerable discretion, they will undoubtedly rely on extra-legal considerations, in addition to legal considerations, to render a decision.

2.  The Supreme Court makes policy — get over it! We will also hear senators say something to effect of, “The role of the Supreme Court is to interpret the law, not to make law. Congress makes law and policy; the Supreme Court is not a policymaking institution.” At a constitutional organizational level, this is correct — Congress makes law, the executive enforces the law, and the judiciary interprets the law. But in practice, there is absolutely no doubt that the Supreme Court makes policy. When the Supreme Court strikes down a law as unconstitutional, that is a policy, plain and simple. It is a policy directive with which the other branches, the states, and the American public must comply since it is the law of the land. Judicial review is a vehicle for policymaking, and I doubt any living human being will call for the reversal of Marbury v. Madison. When the Court renders an interpretation of a law via statutory interpretation, that is policymaking. Moreover, as the head of the federal judicial hierarchy, the Supreme Court is tasked with making legal policy for the lower courts in order to guide their decisions. So at this level, the Supreme Court makes policy — there is no getting around it.

To be fair, senators sometimes mean something else when they attack the Court for its policymaking role. They are sometimes referring to justices using the Constitution to “create” rights and liberties that are not clearly enumerated in the text of the Constitution (substantive due process), e.g., the right to privacy, abortion, and so forth. This has some overlap with the first topic above related to charges of judicial activism. Substantive due process — what rights are covered under the 14th Amendment’s “liberty” clause? — is a legitimate topic that is worthy of rigorous questioning (though nominees usually avoid this question). But it should not be lumped in with the notion that the Court inevitably makes policy in the manner that I have described above.

The bottom line: Senators need to realize that justices deal with complicated legal questions that do not contain clearly evident answers. There is often a legitimate legal rationale supporting both sides of a case, which is precisely why the Supreme Court is deciding the case. The Court is tasked with making legal policy in some form or another. The justices have to decide the case, and they have to provide a legal rationale for the given case that will serve as legal guidance for the lower courts and for future Supreme Court cases. It is extremely counterproductive for senators to continue propagating misconceptions about the Supreme Court in Senate confirmation hearings. If they could move beyond these misconceptions, perhaps the words “vapid,” “hollow,” and “charade” could be removed as descriptors of the process.