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Saturday
Jul172010

"Shift to the Right" on the Court

... I think the following is helpful.

When one says that the Court "shifts to the right," it would be helpful to know if this is meant as: (a) being taken backward in time; (b) failure to innovate with time (enforce yesterday's solution); (c) watering down, but accepting, yesterday's innovation; or (d) doing the very same thing "the Left" does, only during its turn at play.

It seems to me that when you look at the actual policy effects of the Court's recent high-profile rulings, that the matter is not what we might call "policy domineering." I think it was Mark Graber who correctly noted that the "change on

the ground" is far from broad in scope compared to other government institutions. (Cf. if health care is invalidated -- a huge difference).

As such, one might say the "shift to the Right" is more of an aesthetic one. Just as government in general inherits a "hue" based upon who its president is, so does the Court when it conducts its business with 5-4 rulings. Consider what this "hue" does for presidents. If Bush wants to reform welfare, it looks like conservative devils run amok. But if Clinton does it, it looks more trustworthy.

If Bush wants to tamper with social security, it looks differently than if Clinton or someone else (Democratic) would. So too for Hurricane disasters. Imagine what the exact same oil spill with the exact same response from government would look like if an oil man were president.

And so, we are captivated by this "hue." It colors our account of things. When we see the campaign finance decision, and when we see the gun decision, the psychological color we give to the context makes some people think the sky is falling. Just as people falsely cried over the Morrison decision, which, in truth, was nothing other than conservatives making a generational contribution to their living notion of federalism -- something they have every right to pass along to their progeny.

And so, here we are, with conservatives right now contributing to their vision of law and constitutionalism in a way that is not really policy-inordinate. It's

their turn to "paint." And yet, we're told there is a "shift to the right," as if they are doing something either devilish or novel or selfish or with ulterior

motive. Or inordinate and stealthy. Why isn't the headline something more natural and aesthetic in grammar: "Conservatives making their contribution to what the Court normally does ." "A new generational chapter in American rights logic being added." (I'm trying to get the right idea). "The next installment of

the liberty construct being built by Roberts Court."

You see, to me, the policy consequences of this Court have been overblown by the

Left (which one would expect). And you get this idea that there is a "shift" of some sort, when, in reality, there is the same ordinary sorts of movements the Court quite periodically makes. Imagine seeing a dolphin appear in the ocean. One says, "ooh look, there it is." It's this sort of thing that should be our reaction. Not that we are cheated or that devils rule or that law is false or that we're going back to an old or repressive era (policy wise).

If this were simply understood as a turn at play, we could all focus on whether the turn was aesthetically good or bad. We could simply comment on the art. Place it in the proper context of what others on the Court do.

Regards and thanks.

Dr. Sean Wilson, Esq.Assistant ProfessorWright State UniversityPersonal Website: http://seanwilson.orgSSRN papers: http://ssrn.com/author=596860New Discussion Groups! http://ludwig.squarespace.com/discussionfora/

________________________________From: Kim L. Scheppele To: LAWCOURT-L@TULANE.EDUSent: Fri, July 16, 2010 1:20:18 PMSubject: linda greenhouse on the "kennedy court " - and vote counting

Not sure how many of you have noticed – but Linda Greenhouse now has a blog on the NY Times website at http://opinionator.blogs.nytimes.com/category/linda-greenhouse/ . Her latest post assesses the term just past, and notes that the center of the court has shifted to the right.

I paste it in here because she has some wise things to say not only about the Court in general but about vote-counting in particular, from which we can all benefit:

http://opinionator.blogs.nytimes.com/2010/07/15/rethinking-the-kennedy-court/?pagemode=print

July 15, 2010, 9:39 pm Is the ‘Kennedy Court’ Over?By LINDA GREENHOUSELinda Greenhouse on the Supreme Court and the law.A report in The Daily News last week that Justice Anthony M. Kennedy has no plans to retire left me shaking my head.

Would the next report be that the sun rose in the east this morning? It never even occurred to me to wonder whether Justice Kennedy, who turns 74 next Friday,

might be thinking about retiring, because the answer is so clearly no. The man obviously still loves his job after 22 years, and has no reason to leave it.But thinking about Anthony Kennedy led me to look back over the Supreme Court term that ended last month, and what I found surprised me. A plausible case can be made that it is no longer the “Kennedy court.”

That label has been applied to the Supreme Court for the last few years, including by me. It reflected the fact that on a polarized court, with two blocs

of four justices reliably taking opposite sides in any case with a hint of ideological content, the majority in important cases turned out to be wherever Justice Kennedy was. In the 2006-2007 term, the first full term after Justice Sandra Day O’Connor’s retirement, the court decided 24 cases by votes of 5-to-4,

and Justice Kennedy was in the majority in all 24.But during this past term, Justice Kennedy was in dissent in 5 of the 18 cases decided by five-vote majorities (a figure that amounts to one-quarter of the 73 cases decided with signed opinions, down from 31 percent in the previous term and 40 percent in the term before that.) Three justices to Justice Kennedy’s right, Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., all cast fewer dissenting votes in those close cases (three, three and four, respectively) and Chief Justice John G. Roberts Jr. was tied with Justice Kennedy at five.Those are admittedly fine distinctions from a small sample, but I would argue that it’s the trend that counts. Justice Kennedy no longer appears to reside at the court’s center of gravity. The center has shifted to the right.(I should note here that while Supreme Court statistics are widely available on the Internet, including from the estimable Scotusblog site, the numbers I use are my own, and may not always agree with others’. There are a surprising number

of judgment calls that go into Supreme Court vote-counting, such as how to count

a concurring opinion that agrees with the particular outcome — as Chief Justice Roberts did in a case striking down life sentences without parole for juvenile offenders convicted of crimes other than murder — while rejecting the rationale that the majority will apply in future cases. After some pondering, I decided to

count the chief justice’s vote in that case, Graham v. Florida, as a dissent, and to consider Justice Kennedy’s majority opinion as a 5-to-4 rather than 6-to-3 win for the court’s liberal bloc. I also count the term’s big patent case, Bilski v. Kappos, as 5- to-4 for its splintered reasoning, although as a technical matter the judgment was 9-to-0.)Of course, what really counts is what Justice Kennedy voted for and against. Of the 18 cases decided by five-member majorities, 12 can be considered at least somewhat ideological. These included Citizens United v. Federal Election Commission, freeing corporations and labor unions to spend money on behalf of candidates in federal elections; Berghuis v. Thompkins, making it easier for the

prosecution to show that a suspect had waived his Miranda rights; and Salazar v.

Buono, enabling the government to keep a Christian cross standing on top of a hill on the Mojave National Preserve.Justice Kennedy wrote the majority opinions in all three of those cases. He voted a total of 10 times with the conservative bloc in the 12 ideological cases. Compare that with the previous term, during which he gave the liberal bloc his vote in 5 of 17 close and ideological cases; during the term before that, 2007-2008, he voted fully half the time in such cases with the liberals. This term, it was only twice.In one of those two cases, he wrote the majority opinion declaring that a sentence of life without parole for a juvenile convicted of a non-homicide offense was categorically unconstitutional as a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. “Life in prison without the possibility of parole gives no chance for fulfillment outside prison

walls, no chance for reconciliation with society, no hope,” Justice Kennedy wrote.In the second case, he joined Justice Ruth Bader Ginsburg’s majority opinion upholding a public law school’s refusal to grant official status to a student religious group that excludes those who engage in “unrepentant homosexual conduct.” His concurring opinion in that case, Christian Legal Society v. Martinez, was in some respects broader than Justice Ginsburg’s majority opinion.

Justice Kennedy went beyond the somewhat murky facts to give his thoughts about life in law school, where “speech is deemed persuasive based on its substance, not the identity of the speaker.” He declared: “A vibrant dialogue is not possible if students wall themselves off from opposing points of view.”Those two opinions were vintage Anthony Kennedy: he embraces whichever side he is on with full rhetorical force. Much more than Justice O’Connor, whose position at the center of the court fell to him when she left, Justice Kennedy tends to think in broad categories. It has always seemed to me that he divides the world, at least the world of government action — which is what situates a case in a constitutional framework — between the fair and the not-fair.

Affirmative action policies are not fair — he has never voted to uphold one — because, in his view, they victimize those who bear no fault, such as the white applicant with higher test scores. Laws designed to bar gay men and lesbians from achieving their goals through the political process are not fair (he wrote the majority opinion striking down such a measure in a 1996 case, Romer v. Evans) because “central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.” The restrictions on corporate speech in the McCain-Feingoldcampaign finance law were not fair because the First Amendment does not abide discrimination among speakers.

In a book titled “Justice Kennedy’s Jurisprudence,” a political scientist, Frank

J. Colucci, wrote last year that Justice Kennedy is animated by an “ideal of liberty“ that “independently considers whether government actions have the effect of preventing an individual from developing his or her distinctive personality or acting according to conscience, demean a person’s standing in the

community, or violate essential elements of human dignity.” That is, I think, a more academically elegant way of saying fair versus not-fair.So the challenge for anyone arguing to Justice Kennedy in the courtroom, or with him as a colleague in the conference room, would seem to be to persuade him

to see your case on the fair (or not-fair, depending) side of the line. Maybe as

a justice Elena Kagan will be able to work her magic as she did with the fractious Harvard Law School faculty. But a junior justice, unlike a law school dean, has no inducements to offer, and Justice Kennedy is a tough man to persuade, as other justices have learned.The notion of a “Kennedy court” rested on the assumption that Justice Kennedy’s vote was in play, at least most of the time, that the boundary separating liberals and conservatives on the court was at least theoretically permeable and

that he was willing to cross it. If that is no longer, or hardly ever, the case,

then whose court is it?Here is a final set of numbers suggesting that the most accurate description of the Supreme Court today is that it is a court securely in the collective hands of its five most conservative members. Chief Justice Roberts and Justices Scalia, Thomas, Alito and Kennedy collectively dissented during the past term a grand total of only 39 times, averaging 7.8 dissents per justice over the course

of a term that produced 73 decisions. The four others — Justices Ginsburg, Stephen G. Breyer, John Paul Stevens and Sonia Sotomayor — dissented 78 times, for an average of 19.5 dissenting votes per justice.

Of course Justice Kennedy isn’t going to retire — not when he is on the winning team.

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