Category: Supreme Court


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.


The Unbearable Lightness of Empathy

As Kagan progresses through the Kabuki of the confirmation process we can expect to hear her supporters invoke the idea of empathy as a kind of liberal counterpoint to Roberts’s umpire analogy. The more I think about empathy and judging, however, the less I think that it has any substance at all.

In the case of Sotomayor, empathy was associated with identity politics. There was some ineffable something about being a wise Latina that gave Sotomayor special insight into the way that the law effects “ordinary people.” In Sotomayor’s case one could at least construct a facially plausible story about her biography in which her experience provided some insight into “ordinary people” outside of her legal expertise.

Not so with Elena Kagan.

There is nothing in her biography to suggest any special insight into the lives of “ordinary people.” The Upper West Side (my experience with native New Yorkers is that some non-trivial percentage of them take a positive pride in NOT understanding America beyond the five boroughs), prep school, Princeton, Oxford, Harvard Law School, a Supreme Court clerkship, work at an elite law firm, the University of Chicago, the Clinton White House, HLS again, and the Solicitor General’s office. There’s nothing in there that screams, “Special connection with the poor and the downtrodden, or even with the middle class and doing fine.” From what I’ve seen, Kagan is an intelligent and decent person. She may well be able to see the world from the perspective of “ordinary people,” but if she does so it is by an act of imagination rather than memory.

None of this will keep folks from lauding Kagan’s “empathy.” If empathy is no longer tied to biography and identity politics is there anything left of it? The answer, it seems to me, is “Not much.” When empathy is invoked in contemporary debates about the judiciary, I think it’s best to simply see it as a gesture toward a set of substantive positions. To be empathetic is to be solicitous of the state in its role as regulator but less so in its role as defender of national security. It means a somewhat more pro-defendant position on criminal procedure. It means a preference for national rather than state government. Above all else, I suspect that it means holding the kinds of opinions that we all expect Elena Kagan to hold on the various cultural arguments — gay rights, abortion, etc. — that form the detritus of the sexual revolution. None of this, however, really has to do with empathy. Rather, it simply strikes me as a substantive vision of the relationship of the state to individuals, businesses, and local communities.


Looking Good for Kagan

On Monday, I suggested that the military recruiters/Solomon amendment issue had the potential to cause problems for Kagan’s nomination because of the hot-button issues it evokes — support for the military and gay rights. The issue has not gained significant momentum among Republicans, which is, of course, a positive sign for Kagan going forward. As Tom Goldstein noted yesterday:

Three days into the nomination, not much has changed.  No Democrat has opposed Elena Kagan; no Republican has endorsed her.  No Senator or serious commentator has suggested that she won’t be confirmed, or that the nomination should or would be filibustered.

Moreover, in yesterday’s The Caucus (New York Times), Carl Hulse reports on positive impressions of Kagan from two key Republican senators — Scott Brown and Susan Collins. Regarding the military recruiters flap, Brown stated (quoting from Hulse’s article), “It was very clear to me after we spoke about it at length that she is very supportive of the men and women who are fighting to protect us and very supportive of the military as whole. I do not feel that her judicial philosophy will be hurting our men and women who are serving.”

Senator Collins also spoke highly of Kagan and suggested that the chances of a Republican filibuster would be low. Collins specifically invoked the “extraordinary circumstances” standard for filibustering judicial nominees that was brokered by the Gang of 14 a few years back, stating, “At this point, I do not see the extraordinary circumstances that I use as a standard to determine whether to filibuster a nominee.”

With these remarks from two key Republican senators, you would have to think that Republicans will likely leave the Kagan nomination alone. There is always the possibility that another issue will arise or that existing potential problems will gain traction with Republicans. But given the lack of “buzz” over controversial issues in elite discourse, things are looking good for Kagan.


Immigration Federalism: Red and Blue

In a previous post, I discussed some of the federalism implications of Arizona’s recent legislation concerning immigrants.  I noted that in immigration, as in other areas, it is difficult to define enclaves of exclusive state or exclusive federal jurisdiction.  Rather, contemporary federalism entails a dynamic interaction of state and federal authority.

If Arizona’s law constitutes an example of “red state” federalism, a recent announcement by New York’s Governor David Paterson illustrates the “blue state” version of immigration federalism. 

Under federal immigration law, conviction of certain state crimes constitutes grounds for deportation.  But, in many circumstances a subsequent state pardon removes the threat of deportation.  In what The New York Times termed “a major rebuke of federal immigration policy,” Governor Paterson created a panel to assist him in evaluating pardon requests from immigrants subject to deportation based on state convictions.  The Governor characterized some federal immigration laws as “embarrassingly and wrongly inflexible.”  “In New York,” Paterson explained, “we believe in renewal.”

So, now New York has joined Arizona in rebuking federal immigration policy, though from a very different perspective.

Even the United States Supreme Court has gotten into the immigration federalism act.  In Padilla v. Kentucky, decided in March, the Court held that defense counsel’s failure to advise a state criminal defendant that a guilty plea carries a risk of deportation constitutes ineffective assistance in violation of the Sixth Amendment to the United States Constitution.  In what will be one of Justice Stevens’ last majority opinions, he explained that as a matter of federal law, deportation is an “integral part” of the penalty for the state crime.

Padilla confirms the obvious: In immigration, state and federal law are closely intertwined.  What are we to make of this feature of our federal system?  If some are troubled by Arizona’s inhospitable voice, they might find solace in New York’s dulcet tones of “renewal.”  That counterpoint provides cold comfort to immigrants in Arizona, but then the United States Constitution provides some protection for all people throughout the country. 

Complicated? Yes, but simple would be superior only if we all agreed on the answers.  And we do not.  In the meantime, New York seeks to vindicate its immigrant heritage.


The Case for Judicial Experience

The debate over Elena Kagan’s lack of judging experience is heating up. The current justices, of course, are quite homogeneous in their career paths. In particular, for the first time in the Court’s history, all of the sitting justices served previously on the U.S. Courts of Appeals. Some argue that the Court needs more diversity in background experience. The normative argument is that lack of diversity in experience leads justices to view cases and legal issues through a similar lens — one that some consider narrow. Diversity in experience, on the other hand, promotes a broader, more multifaceted view of legal matters. For instance, those with experience outside of the judging realm have a greater appreciation for how “law…affects the lives of ordinary people,” to quote the sentiment emphasized by President Obama in his announcement of Kagan’s nomination. (“That understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena’s career — including her service as Solicitor General today.”)

While I think there are benefits to background diversity on the Court, I want to make the case for the importance of judicial experience, particularly U.S. circuit court experience, as I do not think this case has been succinctly articulated throughout this debate. To do so, I draw on David Brooks’s very thoughtful column, written in September of 2008, stressing the importance of experience in governing. The column was written in the context of the debate over whether Sarah Palin was qualified to be Vice President and, perhaps, President. Quoted below is Brooks’s core argument:

It turns out that governance, the creation and execution of policy, is hard. It requires acquired skills. Most of all, it requires prudence.

What is prudence? It is the ability to grasp the unique pattern of a specific situation. It is the ability to absorb the vast flow of information and still discern the essential current of events — the things that go together and the things that will never go together. It is the ability to engage in complex deliberations and feel which arguments have the most weight.

How is prudence acquired? Through experience. The prudent leader possesses a repertoire of events, through personal involvement or the study of history, and can apply those models to current circumstances to judge what is important and what is not, who can be persuaded and who can’t, what has worked and what hasn’t.

Of course, there are differences between the importance of experience in the strictly political realm as opposed to the judicial realm. But Brooks’s basic template is applicable to the debate over judicial experience.

Is prudence, as Brooks discusses it, attainable without prior judging experience? Of course. And there are many justices who are considered “great” justices who had no prior judging experience. But those with prior experience, particularly as U.S. Courts of Appeals judges, are accustomed to thinking about, wrestling with, and deciding federal legal questions containing constitutional and statutory issues — the same issues that come before the Supreme Court. They are more likely to possess a firm intellectual foundation for deciding a wide variety of legal issues that come before them. They are more well-versed in applying legal rules and standards to the facts of a given case. They have processed and decided a diverse set of cases that constitutes this rich “repertoire of events” of which Brooks speaks.  Judicial experience, and particularly U.S. Courts of Appeals experience, matters because it best prepares one for the work that a Supreme Court justice does on a day-to-day basis.


Book Review: A Giant of American Law (Reviewing Urofsky’s Louis D. Brandeis)

Louis D. Brandeis: A Life, by Melvin I. Urofsky.  Pantheon, Sept. 2009.  976 pp.

The politics and jurisprudence of Supreme Court justices have always been  spread broadly across the legal spectrum. Depending upon the descriptive phrase in vogue at the time, court members have been portrayed as conservatives, liberals, moderates, activists, strict constructionists, pragmatists, originalists and countless other terms that often attempt to oversimplify and label judicial beliefs. At any given moment in its history, the members of the Supreme Court have rarely found themselves in philosophical unanimity.

The nine justices currently serving on our highest court do share one common trait on their distinguished resumes. All came to the court from service on the federal courts of appeal. Indeed, to a man and woman, their judicial and federal experience far outweighs any legal background outside of the judiciary. While some of the current justices had private practice experience during their legal careers, it was their judicial background that was perhaps the most influential factor in their nomination and confirmation to the Supreme Court.

Depending upon one’s personal viewpoint regarding federal judicial experience as a sine qua non for selection to the Supreme Court, reading Melvin Urofsky’s Louis D. Brandeis: A Life, one cannot help but be struck by the undeniable fact that the political climate of the 21st Century means that a man like   Brandeis would have great difficulty being nominated and confirmed to any vacancy on the Supreme Court. Because Brandeis was an outstanding and passionate advocate for causes both popular and unpopular he had a lengthy legal record that would certainly give opponents of his nomination substantial ammunition to battle his occupying a seat on the Court.

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The Irrelevance of Kagan’s Modest Scholarly Record

How many scholarly articles (five, four or three) has Elena Kagan, the President’s Supreme Court nominee, published? How many years had she been an academic before becoming Solicitor General last year (eight, eighteen or something in between)? What does it matter?

In her career, Kagan has written a total of about 350 pages of legal scholarship that has been cited a total of about 600 times. People seem to disagree about what this scholarly oeuvre adds up to: close to nothing (e.g., Paul Campos), something quite substantial (e.g., Eugene Volokh), or not particularly remarkable in either direction (e.g., Erin Miller).

People also disagree about which of her various pieces count as major articles (the foregoing commentators count three, four and five, respectively) and even disagree about how to define her years in the academy (eight, netting out all government and decanal service, or as many as 18, dating from her first appointment).

There is no mystery about what Kagan has published—a full list including every sort of piece appears at the SCOTUS site; a more selective one appears at the Harvard Law site; another appears below. Disagreement concerns what it means—like the couple receiving marriage counseling in Woody Allen’s Annie Hall.

In my view, as a scholarly record, though it warranted awarding promotion and tenure to a junior faculty member, it would not warrant offering Kagan a lateral tenured appointment at most national law schools in the country today.  But that opinion and the record are simply irrelevant to the question of her qualifications to serve as Associate Justice of the Supreme Court of the United States. Read More