Wednesday, July 04, 2007

How far right does the new Supreme Court lean?

Stop the presses. I have an announcement. The sudden swing to the right by the Supreme Court announced in Sunday’s New York Times is neither news, nor as dramatic as claimed. The outcry against this supposed conservative steam roller is mostly about politics, with one exception.

Linda Greenhouse, the Times’ long time SCOTUS watcher started her long article like this:

“It was the Supreme Court that conservatives had long yearned for and that liberals feared.

By the time the Roberts court ended its first full term on Thursday, the picture was clear. This was a more conservative court, sometimes muscularly so, sometimes more tentatively, its majority sometimes differing on methodology but agreeing on the outcome in cases big and small.

As a result, the court upheld a federal anti-abortion law, cut back on the free-speech rights of public school students, strictly enforced procedural requirements for bringing and appealing cases, and limited school districts’ ability to use racially conscious measures to achieve or preserve integration”.

The proverbial man from Mars, reading Greenhouse’s article while he struggles to learn American history, may get a sense that civil liberties are being ferociously rolled back by the court, and much worse is yet to come.

There are civil rights concerns with this administration, most publicly the formerly secret wiretapping program (which they finally backed off on – something they never do when they think they are right), the greater use of National Security Letters and habeas corpus questions (a method by which prisoners can get to court when otherwise denied the liberty to do so). Those concerns, though, are properly focused on the president and also congress, which are never content with limits on their own power over us and are presently consumed by the rising temperature of their own intra-governmental struggle.

The court as it stands now is tilted right, but just not so much to justify alarm bells. This should surprise no one. Roberts’ and Alito’s appointments made the right hand turn a certainty. And despite the contempt with which some on the right hold Anthony Kennedy, he is basically a conservative who has his limits as to blindly following dogma.

It was not a great prediction to say, when O’Connor retired, that Kennedy would step into the role of the swing vote. It was obvious. Actually, he was already there on many issues, even occasionally to O’Conner’s left. In two very visible types of cases, he was not – abortion and affirmative action. Particularly because of abortion cases, and especially because she is a woman, O’Connor got more recognition for being in the middle than Kennedy, despite the fact that they both are usually solidly conservative in their opinions with certain dramatic exceptions.

Kennedy has certainly lived up to this prediction though, being a deciding vote in every single one of the 5/4 cases decided this term. This means, to a large degree, this is not the Roberts Court, but the Kennedy Court, and may be for some time to come.

We can’t dissect every case here – so instead, we will look at some of the cases that have excited so much controversy, particularly those Greenhouse commented on in her article, and take a look at just how far the court has swerved right.
Let us start out with the one area where the court clearly is more right than left – criminal law, particularly the death penalty. As Greenhouse points out, the prosecution was victorious in 14 of 18 criminal cases that were not death penalty cases out of Texas.

The surprising thing is not that the right dominates this issue, because, in fact, they have been doing so ever since the conservative Clarence Thomas replaced the very liberal Thurgood Marshall in 1991. It is that in four Texas cases, the prosecution lost. But Kennedy is not, as the four more liberal judges are, thoroughly against the death penalty. In fact, he seems like the only one on the court who has a reasonably open mind, sticking with the conservative judges unless he really thinks they go too far.

Nor can it be ignored, that whether or not you believe that the court took a turn for the better or worse in the Warren years (’53-'69), the conservatives have come around on racial issues to nearly the liberal viewpoint, but are still mad as hornets about the criminal law revolution that the court brought about in that era. Yet, the cases that went furthest then in declaring new constitutional rights where none before existed, are now considered fairly safe.

In fact, the late Chief Justice Rehnquist, no liberal, wrote the decision in 2000 reconfirming the very suspect Miranda decision. The right wing of the court will forever be trying to whittle down Miranda rights, but until there are three other clones of Thomas and Scalia on the court, they will not throw them out completely. Even then, it they may not. Of the 14 criminal cases the right got to decide this term, none were earth shattering or changed the basic prevalent constitutional paradigms.

The ideological division on death cases, in particular, and criminal cases, in general, is important. Of the 24 5/4 cases decided this term, 18 (75%) were purely on the well known partisan division. But almost all of them were criminal cases. That means, if you think some terrible conservative revolution came out of the court, you would have to explain how one or more of the good guys voted with the evil ones on so many cases. tabulates just how often each justice agrees with another. So we can know that on this year, where ideology is at recent record highs, the most liberal justice, Stevens, and the most conservative one, Thomas, still agreed on at least part of a case more than 1/3 of time. But those are the extremes. The next most liberal justice, Ginsberg and the next most conservative one, Scalia, agreed virtually half of the time (48%). That doesn’t sound too extreme.

There is no doubt that in many of the controversial cases, Scalia and Thomas wanted to push the court further than it went, but Roberts and Alito either are determined not to let the older attorneys’ dominate them, or they were true to their oaths before the Senate that they would take precedent into serious consideration. It was these two justices who were in agreement the most, nearly 90% of the time, and when they agreed with Kennedy, were almost always in the majority.

Thus, it is a little hard to understand Justice Breyer’s statement from the bench: “It is not often in the law that so few have so quickly changed so much.” More substantial change occurred on a long weekend during the Warren years than happens now.

Few precedents have been overturned at all by the new court – three to be exact, out of the 68 (or 72 if you count summary opinions) decisions made, two in criminal law and one in anti-trust. Hardly startling. I am not necessarily stating that these cases are correctly decided (whatever that means anyway). But in what year will any person agree with everything or even nearly everything the court determines?

Let’s move from criminal law to some of the really controversial cases, a number of which were decided in the last few days, tracking those highlighted by Greenhouse as examples. Among those that got the most print and air time are two cases concerning whether schools are allowed to use race to determine where they go to school even where it is done to try and prevent a return to segregation. The court, led by Justice Roberts said “no”.

Here are the two basic positions. The majority (the right) which struck down the race based plans based its decision on a policy that the way to end racism is to stop using it whether it is for a supposedly good reason or not. The left based its dissent on the belief that there is a difference between using race to segregate and using race to integrate, and the court should allow the latter. Let us say, for argument’s sake, that the left is right on the case. Is a judicial view that says schools can’t use race to discriminate at all really what the left is complaining about on the right. Is saying that racism is unfair in any form really a bad thing? Yet many convince themselves that since an ideological majority decided it, then it must be.

The truth is, also, that even though Kennedy sided with a majority, he would not agree that race can never be a factor. So, although the school plans in these cases were deemed to have gone too far, a majority of the court, including Kennedy and the left, still accepts that some racial discrimination for “benign” purposes is allowable. This is still the law. Some right wing swing.

Greenhouse also refers to two business cases, Tellabs Inc. v. Makor Issues & Rights Ltd. and Credit Suisse Securities v. Billing as changing the law, making it harder to sue. But guess who wrote the opinions – Ginsburg in one case and Breyer in the other. In fact, in one of them, the arch-demon of the left, Thomas, actually dissented (Stevens in the other). Everyone else on the court, right or left signed on. Some right wing swing.

Yet the court also made it easier to sue in a type of patent case too (KSR International Co. v. Teleflex Inc.) by showing that a patent should not have been granted as it was an "obvious" invention. Is lessening business property rights even a conservative principal at all? For one thing, this will almost certainly be better for consumers as paying royalties for "obvious" inventions will not be built into the cost.

In another case Greenhouse refers to (Philip Morris USA v. Williams), the court reversed an approximately 80 million dollar punitive damages award against a tobacco company. Think it was right wing judicial activists taking the case away from the jury? No. Breyer wrote the decision, joined by Souter from the left, Kennedy from the center and Roberts and Alito from the right. Making strange bedfellows, Scalia, Thomas, Ginsburg and Stevens dissented. Some right wing swing.

The right did control the criminal agenda, but in some cases all or almost all of the court joined them. In one nearly unanimous case the court made it harder for state court defendants to get federal court habeas corpus. In another nearly unanimous case, the court held that the police did not violate constitutional rights by ramming a speeding run away car from the rear, causing him to hit a pole and severely injure himself. Scalia actually made the video part of the opinion for readers to watch. Only Stevens dissented. He must have watched a different video than I and the court did.

All of the judges also agreed that a passenger in a car has the same right as a driver does to challenge the police’s right to stop and search their car, because they would not feel free to walk away. Frankly, this case, Brendlin v. California, is a step left (pro-criminal rights) and even Scalia and Thomas joined the majority, accepting that the bill of rights applies to the states, despite their theoretical beliefs that it does not.

In a highly discussed case, Gonzales v. Carhart, which Greenhouse termed an “anti-abortion decision,” the court decided to uphold a federal partial birth abortion law, which, in fact, does not even make any abortion illegal, just one particularly gruesome abortion procedure. Although the left was quaking after this case, virtually announcing the end of Roe v. Wade, they blew making an argument about Congress impeding on state rights which Scalia and Thomas probably would have gone for, as it is right up their alley. However, as it goes against liberal dogma (federal power) the attorneys chose allegiance to political philosophy over their clients and did not, as Thomas and Scalia noted, raise it at all.

Greenhouse pointed out that in a number of cases the court made it harder to sue. However, as noted above, the left joined in some of these rulings. However, one of them, Hein v. Freedom From Religion Foundation, decided by the right wing majority, narrowed a taxpayer’s right to challenge government expenditures based on the separation clause of the first amendment in determining that the right applied only to congressional earmarks and not the president’s discretionary spending.

The important issue here is not whether the president violated the separation clause because the court did not get that far, but the bar at the courthouse door from filing this suit. Generally speaking, taxpayers have no right to sue to challenge laws that do not specifically hurt them, which makes sense, but first amendment speech and religion cases have been important exceptions. If they weren’t, no one could challenge them and the administration and congress would be unfettered to disregard the first amendment.

It is hard to understand how the president should not be limited by the first amendment, whereas congress is, just because congress has delegated the money to him. Worst decision of the term and it will come back to bite us all in some proverbial body part when some president goes further in religious spending.

Lastly, let’s look at the two speech cases. In Federal Election Commission v. Wisconsin Right to Life, the court partially struck down part of the McCain-Feingold campaign finance law which included in its ban television commercials aired shortly before an election containing only issue advertising as opposed to advocating for a candidate. The court held that the ban could only apply to advertisements whether there was “no reasonable interpretation” but that it was “an appeal to vote for or against a specific candidate”.

Like many on both sides of the aisle, I agree with Scalia and Thomas that much of the McCain-Feingold law violates the first amendment. Before you trash this case on a partisan basis, remember that we want to protect speech, particularly political and social speech. Everyone seems to agree that money corrupts politics, but do we really want to trample on free speech to get there. Isn’t that defeating the whole purpose of the act – better government? More important, should congress be allowed to do this? Answer: No. Nor can I buy the dissenters’ argument that allowing issue ads will lead to runaway deceptive advertising which sneak in support or disparagement of particular candidates. Stepping on everyone’s speech rights to protect against possible fraud is not a great idea, and, in fact, unconstitutional.

What is the brouhaha about Morse v. Frederick, better known as the Bong Hits 4 Jesus case. Remember, Greenhouse wrote “[The court . . . cut back on the free-speech rights of public school students . . .”. In fact, the court did not overturn the law at all. It applied the prevailing law from Tinker v. Des Moines Independent Community School District, a Vietnam War era case which held that students passively expressing themselves (armbands) were protected by the 1st amendment, subject to whether the expression substantially interfered with the school’s mission or the rights of others. Here, the court determined that at a school assembly (out doors), during school time, the intentionally outrageous message which obviously advocates drug use (how the dissent disagrees I will never understand) crossed the lines. Actually, reading the dissent closely, it seems that Stevens barely disagrees at all.

Thomas, who concurred in the opinion, would hold that there are no 1st amendment rights for students. It is hard to believe he really means it, were he to be given enough hypothetical situations to consider. For example, should a student be allowed to be suspended because of an expression of disfavored political beliefs to another student at lunch? How about if the principal allows t-shirts favoring one political party or religious group over others? There has to be some first amendment protection in cases like these.

Nevertheless, Thomas makes strong points that these rights never existed in schools for most of our history and for good reason. Discipline is required (although there has to be limits to everything) for learning to take place. I strongly agree with those on the right that we need more discipline, not less, in school – excepting those times when passive non-disruptive speech or expression does not impede the school’s mission. Like so many constitutional issues, it is a balancing act, and the court performed well here. If you ever coached or taught or even raised a family, try succeeding if the kids run the show (too often the case, which is one of America’s big problems).

That’s enough cases for now to make the point that despite a mild turn right, which was to be expected, no revolution has occurred. If a number of avenues to the courts were closed, well, heavens to Betsy, we are now a slightly less litigious country.

We haven’t even mentioned the case charging the EPA with combating global warming, unless it has a good scientific reason why it should not, which seems the opposite of a Republican platform. Again - some right wing swing.

Greenhouse, a SCOTUS commentator powerful enough to have her own effect named after her (when right wingers think that a SCOTUS judge leaned left they call it the Greenhouse Effect, because they believe the judge is trying to get good press from her) should wield her pen more carefully. The bulk of her article was fair, but the beginning, which is all many people will read, leaves the wrong impression.

Will the court tilt further right? Maybe, maybe not. None of these judges are young. If something happened to one of them right now, particularly on the left, Bush would get a replacement choice, but with a Democratic senate to block it. It is hard to believe there will not be at least one replacement in the next few years. If a Republican wins the presidential election he will still likely face a Democratic senate and he will have to nominate a relatively moderate judge to pass their scrutiny. Only with a Republican president and senate will the court tilt further right. Even then, as we have learned with several justices in the past, you never know where their jurisprudence will take them.


  1. Anonymous9:49 AM

    You have earned a seat in the conservative wing of the Republican party, old boy. Congratulations. You are almost a fascist. Surprised you are not a bigger fan of McCain and Guiliani, as you certainly support the heart of their political views.

  2. Anonymous11:26 AM

    Since when did common senese and experience become a synonym for fascist.
    Oh, that's right ,one is a fascist if any limits are placed on children and any impediment is placed in front of any activity that is socially disruptive.
    This post was spot on accurate. The court, often being presented with problems best left to the legislature is fashioning incremental, case specific remedies that (in the view of the conservatives)do not rek of judicial activism and legislting from the bench.

  3. This is why I say I am a moderate. This week I got called a fascist from the left and a communist from the right. I'm used to it. God forbid (says the atheist) that we look at things on their own merits and not cleave to dogma (why I like Judge Kennedy).

    There are a lot of things the left is right about in law and lots the right is. The extreme juridical theories are just theories --"mere metaphysics", as Jefferson said, once he became president and did not want to be hoisted by the strict construction petard he advocated while in opposition.

    There is no such thing as being in the middle on everything either. There really is no moderate position. it's just listening to (most) everyone, acknowledging that perspective is persuasive, and being prepared to say ney when your friends are saying yeh.

    Then again, leaving all that high sounding pretentious rot aside, when your oldest and best friends call you a commie or fascist, maybe they know something the rest of you don't.


  4. Anonymous6:24 AM

    Well, OF COURSE, we know something you don't know. Actually, lots of things you don't know.
    Keep up the good posts.

  5. Hi David,
    I appreciate your comment on my blog about Scalia. I read the post you referred too and find much that is interesting here. I feel Scalia is way out of bounds with his so-called "originalist" philosophy in regards to the interpretation of the Constitution.
    He infers that the document must be interpreted according to the original intent of the framers.
    Nothing could be further from the truth. The intent of the framers was to condone slavery, deny equal rights to all citizens and to count slaves as 3/5's of a person for political apportionment reasons while denying them status as a human being.
    In the Federalist #34, I believe, it is stated that the constitution must not be written according to "the exigencies of the present but must also take into account the exigencies of the future." (I am paraphrasing here, I don't recall the quote exactly)
    The implication of this is that the Constitution is indeed a "living" document that must, and can, adapt to the "exigencies" of the modern period.
    Certainly the fact that the Constitution allows for amendments and has now been amended many times must show this as a fact.
    It is also noteworthy that the Constitution would not likely have been ratified at all had not a guarantee of a Bill of Rights be included, as they were in the first 10 amendments.
    And as for the original intent of the framers, that is a specious claim if he presumes to be able to divine such a concept. Any reading of the history of the Constitutional Convention shows that the framers were a diverse, contentious lot with much to disagree about.
    Thanks for the comment...

  6. Thanks to Dickie for his thoughtful comment.

    As my article makes clear, I am no great advocate of any of the juridical theories, particularly when they are draconic. None of them work on the whole. That being said, don't we need some guidance in how to interpret the constitution?

    Scalia's approach is probably the best thought out and articulated, but it cannot work in the same system that relies on precedent, and it is as subject to political abuse as any other theories. Besides, Scalia, like the other judges, simply avoids originalism when it suits his purpose.

    I do disagree with Dickie on some points. Although the courts rely heavily on the Federalist Papers, whatever may be stated in them is just the opinion of Hamilton or Madison, or, very rarely, Jay. Perhaps no greater constitutional expertise is available and they should be somewhat persuasive, but no one of them can, by themself, guide us completely.

    Also, the fact that we can amend the constitution would seem to mean to me that courts should not treat the document as living and thereby judicially amend when the process is available to amend it in actuality.

    I find neither the concepts of strict construction or originalism (as Scalia means it) or "living constitution" or pragmatism, etc., paramount in interpretation although all of the theories have some credibility.

    First, at least, we should try and apply the original meaning, which is much more difficult than it seems, because you have to start somewhere, and, only apply "living constitution" principles when life has changed to the degree that the constitution makes little sense, or so offends our present sense of policy, that we cannot go down that road anymore.

    Want authority for that last bit? Well, Scalia said, at his Senate confirmation hearing, that even he didn't think that whipping was an acceptable punishment anymore, even though it was certainly not considered so in the original meaning of cruel and unusual. So, feel free to hoist him on his own petard.


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About Me

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I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .