Category: Supreme Court


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.


The Posthumous Case for Impeaching Abe Fortas

Recall 1968 and the failed confirmation of Abe Fortas to be Chief Justice of the United States. President Lyndon Johnson had announced he was not seeking reelection; Republican presidential candidate Richard Nixon menaced in the wings. Chief Justice Earl Warren announced his resignation—contingent upon the Senate’s confirmation of his successor—and thereby auspiciously created one last vacancy for LBJ to fill. LBJ nominated Associate Justice Abe Fortas as the inside candidate. Homer Thornberry was nominated to fill Fortas’s to-be vacated seat.

Republican Senators (encouraged quietly by candidate Nixon) together with the Dixiecrats blocked the Fortas nomination in hopes that Nixon would fill the seat with a nominee of his choice. As grounds for opposing confirmation, they cited, among other grounds, the Justice’s unusually close relationship to LBJ—an open secret in official Washington.

Under oath, Fortas decided to put the allegations to rest with this testimony: “Let me say in the first place—and make this absolutely clear—that since I have been a Justice, the President of the United States has never, directly or indirectly, approximately or remotely, talked to me about anything before the Court or that might come before the Court. I want to make that absolutely clear.”

Except, that really wasn’t the truth—far from it.

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The Stevens Retirement and the Senate Midterm Loss

Over at PrawfsBlawg, Jonathan Siegel has questioned Senator Arlen Specter’s (D-PA) suggestion that Justice Stevens should wait until next year to resign. Professor Siegel (correctly, I think) has observed that the midterm election loss – where the President’s party loses seats in Congress – will likely reduce the Democratic majority in the Senate. If you doubt this, take a look at the latest Cook Report Senate race ratings. If Stevens hopes to help Obama by strategically timing his resignation, he should announce his retirement now and hope that Democrats can nominate, confirm, and appoint a successor before the midterms. Few phenomena in political science approach the status of iron-clad rules, but the midterm election loss is one you can bank on.

For Republicans, the optimal strategy is to delay or block any replacement’s nomination. I’ll hazard a guess that they face little downside risk of being viewed as obstructionist by probable Republican voters or independents who may vote for Republicans in 2010. Voter turnout will be low in November 2010 and it will be Republican. If you like Obamacare, you’ll stay home and be content. If you don’t, you’ll be heading to the poll to register your protest. Plus, if Stevens is seen as playing a political game by strategically timing  his resignation in aid of Democrats, there’s no reason that Republicans can’t play that game too. For good measure, all will cite approvingly/disapprovingly to the 1968 Fortas filibuster and the attempted 2006 Alito filibuster.

The Senate’s midterm election loss has not always been a foregone conclusion. Pre-17th Amendment, the “voters” who elected U.S. senators were state legislators. They were a committed and unusually well-informed group of voters. Their voter turnout was consistently high whether it was a presidential year election or a midterm election, and perhaps as a result there was no Senate midterm election loss. The odds of the President’s party losing or winning seats in the Senate was, by my count, about 50/50. It’s really only with direct election that we see the Senate midterm election loss appear as a regular phenomenon. By contrast, the House, which has always been directly elected, has always displayed the midterm election loss.


Error in SCOTUS Jones v. Harris Opinion

A misleading error appears in today’s unanimous Supreme Court opinion in Jones v. Harris, written by Justice Samuel Alito. The Court endorses a longstanding interpretation of a 1970 federal statute requiring mutual fund adviser fees to meet a standard of fiduciary duty. The Court carefully directs that federal courts reviewing challenged fees be cautious about second-guessing fund judgments.

On the interpretation issue, the Court accurately reviews its prior opinions to summarize what it has said of the legislative history. An alternative to the fiduciary duty standard ultimately appearing in the statute would have given the Securities and Exchange Commission power to review fees for reasonableness. Accurately citing Daily Income Fund, Inc. v. Fox, 464 U.S. 523 (1984), page 4 of today’s opinion says: “Industry representatives, however, objected to this proposal, fearing that it ‘might in essence provide the Commission with ratemaking authority.’” (emphasis added) (citing and quoting Daily Income Fund, 464 U.S., at 538).

On the direction the Court gives federal judges applying this statute, the Court cautions against excessive propensity to second-guess fee decisions. True, the statute requires testing fees by a fiduciary standard but judges should exert judicial restraint, at least when set by independent and informed fund directors. But then the Court, on page 16 of today’s opinion, inaccurately cross-references its own opinion and inaccurately cites Daily Income Fund, when writing: “As recounted above, Congress rejected a ‘reasonableness’ requirement that was criticized as charging the courts with rate-setting responsibilities.” (emphasis added) (citing Daily Income Fund, at 538–540—I’ve copied these pages below for readers to compare). Read More


SCOTUS Chides Posner/Easterbrook in Jones v. Harris

In a gentle rebuke to two famous academic judges, Richard Posner and Frank Easterbrook, today the US Supreme Court told them a debate they were airing in a recent case was not for federal judges but for Congress.

The Court, in Jones v. Harris, unanimously vacated as erroneous Easterbrook’s opinion that went out of its way to disagree with well-settled judicial interpretations of a relatively simple federal statute. Posner’s contending opinion engaged directly with the economic and market theories on which Easterbrook drew, both judges wrongly making debate out of the wisdom rather than the meaning of the statute.

The statute says an adviser to mutual funds is “deemed to be a fiduciary with respect to the receipt of compensation for services.”   For thirty years, virtually all federal courts take that to mean adviser fees cannot be so disproportionate to services rendered as to indicate lack of an arms-length sort of bargain.    Testing that requires considering all relevant factors.

The Court affirmed that interpretation and test as correct, in an opinion written by Justice Samuel Alito. Easterbrook erred when instead saying the fiduciary duty language required only that advisers disclose fees and that no other factor is relevant. The Court indicates that his dissertation on competition in the mutual fund industry and theories of market behavior is irrelevant to federal court business in the case.

Posner’s opinion, in the form of a dissent from the Circuit’s refusal to rehear the case en banc, engaged Easterbrook directly on economic theories and views of market efficacy, including debating empirical academic studies reaching opposite conclusions. The Supreme Court rebuked both, saying their job was to apply the statute not debate its wisdom. Read More


My Bad!: The Supreme Court’s Assault on Judicial Elections

As anyone who’s followed judicial elections for the past 10 years could have predicted, the Citizens United decision, striking down limits on corporate campaign spending, is likely to unleash a virtual run on judicial elections in some states.  Judicial elections  — especially for state Supreme Courts  — have become been ugly, bitter, partisan battles in which millions of dollars are spent, largely to unseat incumbents in many states.  The result is a judiciary that lacks the appearance and in some instances the reality of impartiality required by the Constitution.  The Supreme Court has played a huge role in intensifying this problem – beginning with the Court’s ill-considered 5-4 decision Republican Party of Minnesota v. White in 2001.  In that case, the Court struck down state rules that forbade candidates from judicial office from announcing their views about contested legal issues that might come before the court.  Writing for the majority, Justice Scalia conveniently saw only the First Amendment dimensions of the case and none of the 14th.  Yes, judicial candidates have free speech rights.  But those rights should have been balanced by the countervailing due process rights of litigants to appear before an impartial tribunal.  Instead Justice Scalia, and Justice O’Connor writing in her concurrence, took the position that if states are unwise enough to elect their judges, they will simply have to take their medicine and drop rules that attempt to mediate between the free speech rights of candidates and the public right to a bench that looks and is impartial.  O’Connor in particular seemed to think that the Court’s decision in White might encourage states to abandon judicial elections in favor of merit selection.

But the decision by states to elect their judges was a deliberate, conscious choice.  In the mid 1800s the spread of Jacksonian Democracy convinced populists that state court judges were too removed from the public, and too often appointed from the wealthy classes.  They sought a judiciary that would be accountable to the public.  That same populist streak has kept judicial elections alive (in at least some form) in 38 states.

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