Comments on: Analysis: The Court and the 2008 Election http://www.scotusblog.com/2007/05/analysis-the-court-and-the-2008-election/ The Supreme Court of the United States blog Mon, 23 Jan 2012 22:38:26 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Marc Shepherd http://www.scotusblog.com/2007/05/analysis-the-court-and-the-2008-election/#comment-11225 Marc Shepherd Tue, 22 May 2007 16:40:30 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-the-court-and-the-2008-election/#comment-11225 Maybe I wasn't clear enough, but I totally agree Breyer shifted the Court to the right, only because Blackmun in his latter days had shifted left to such a significant degree. But even in Roe, which came fairly early in Blackmun's tenure, I think he employs a style of reasoning that is more activist than anything Breyer has penned to date. The Blackmun-Breyer succession is, IMO, the only debatable one. Even if Stevens has shifted left, he is still more conservative than Douglas, And even if Souter has shifted left, he is still more conservative than Brennan. And even if Kennedy has shifted left, he is still more conservative than Powell. Maybe I wasn’t clear enough, but I totally agree Breyer shifted the Court to the right, only because Blackmun in his latter days had shifted left to such a significant degree. But even in Roe, which came fairly early in Blackmun’s tenure, I think he employs a style of reasoning that is more activist than anything Breyer has penned to date.

The Blackmun-Breyer succession is, IMO, the only debatable one. Even if Stevens has shifted left, he is still more conservative than Douglas, And even if Souter has shifted left, he is still more conservative than Brennan. And even if Kennedy has shifted left, he is still more conservative than Powell.

]]> By: Kent Scheidegger http://www.scotusblog.com/2007/05/analysis-the-court-and-the-2008-election/#comment-11224 Kent Scheidegger Tue, 22 May 2007 16:12:49 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-the-court-and-the-2008-election/#comment-11224 "The other eight are all clearly more conservative than the Justices they replaced..." That is an overstatement, IHMO. But even assuming it for the sake of argument, along with rightward shift we must consider leftward drift. Justices with anything less than a rock-solid commitment to judicial restraint at the time of appointment tend to be pulled by two forces: (1) a desire to see one's work praised in the press and the law reviews, which only happens if one reaches Politically Correct results, and (2) the natural tendency of all government actors to enhance their own power at the expense of other decision-makers. As Justice Blackmun's tenure illustrates, these two vectors tend to pull justices in the direction of judicial activism toward results favored by the political left. For proof, one need look only Marc's comment above. It can be credibly said that the succession of Nixon-appointee Blackmun by Clinton-appointee Breyer was a shift to the <i>right</i>. QED. “The other eight are all clearly more conservative than the Justices they replaced…” That is an overstatement, IHMO. But even assuming it for the sake of argument, along with rightward shift we must consider leftward drift. Justices with anything less than a rock-solid commitment to judicial restraint at the time of appointment tend to be pulled by two forces: (1) a desire to see one’s work praised in the press and the law reviews, which only happens if one reaches Politically Correct results, and (2) the natural tendency of all government actors to enhance their own power at the expense of other decision-makers.

As Justice Blackmun’s tenure illustrates, these two vectors tend to pull justices in the direction of judicial activism toward results favored by the political left. For proof, one need look only Marc’s comment above. It can be credibly said that the succession of Nixon-appointee Blackmun by Clinton-appointee Breyer was a shift to the right. QED.

]]> By: Marc Shepherd http://www.scotusblog.com/2007/05/analysis-the-court-and-the-2008-election/#comment-11223 Marc Shepherd Tue, 22 May 2007 14:53:45 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-the-court-and-the-2008-election/#comment-11223 Tom may be right that most of the recent nominees haven't dramatically shifted the Court to the right or left. That's an incremental view, looking at each appointment one at a time. Looking at the broad sweep of events, the rightward shift is more apparent. The last ten changes in the Court's composition are listed below, with the replaced Justice's name in parentheses: Stevens (Douglas) O'Connor (Stewart) Scalia (Burger) Kennedy (Powell) Souter (Brennan) Thomas (Marshall) Ginsburg (White) Breyer (Blackmun) Roberts (Rehnquist) Alito (O'Connor) Only one of these ten could be described as a leftward shift: Ginsburg for White. Based on Roberts' output to date, he is basically a push for Rehnquist, ideologically speaking. The other eight are all clearly more conservative than the Justices they replaced --- even if, as Tom noted, the incoming Justice (e.g., Breyer) isn't conservative in the absolute sense. While in several instances the ideological shift wasn't dramatic, the cumulative effect has clearly been massive. Tom may be right that most of the recent nominees haven’t dramatically shifted the Court to the right or left. That’s an incremental view, looking at each appointment one at a time.

Looking at the broad sweep of events, the rightward shift is more apparent. The last ten changes in the Court’s composition are listed below, with the replaced Justice’s name in parentheses:

Stevens (Douglas)
O’Connor (Stewart)
Scalia (Burger)
Kennedy (Powell)
Souter (Brennan)
Thomas (Marshall)
Ginsburg (White)
Breyer (Blackmun)
Roberts (Rehnquist)
Alito (O’Connor)

Only one of these ten could be described as a leftward shift: Ginsburg for White. Based on Roberts’ output to date, he is basically a push for Rehnquist, ideologically speaking.

The other eight are all clearly more conservative than the Justices they replaced — even if, as Tom noted, the incoming Justice (e.g., Breyer) isn’t conservative in the absolute sense. While in several instances the ideological shift wasn’t dramatic, the cumulative effect has clearly been massive.

]]> By: Trevor Morrison http://www.scotusblog.com/2007/05/analysis-the-court-and-the-2008-election/#comment-11222 Trevor Morrison Sat, 19 May 2007 04:33:04 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-the-court-and-the-2008-election/#comment-11222 Tom: A small point, but when thinking about the impact of the Scalia nomination, shouldn't we really think of it as Scalia replacing Burger, not, as you have it, Scalia replacing Rehnquist? Of course, it's formally true that Rehnquist succeeded Burger as Chief while Scalia took Rehnquist's associate seat. But the net effect was the departure of Burger and the addition of Scalia. And that change is probably best seen as moving the Court somewhat to the right. TG responds: right you are; I corrected the post accordingly. Good catch. Tom: A small point, but when thinking about the impact of the Scalia nomination, shouldn’t we really think of it as Scalia replacing Burger, not, as you have it, Scalia replacing Rehnquist? Of course, it’s formally true that Rehnquist succeeded Burger as Chief while Scalia took Rehnquist’s associate seat. But the net effect was the departure of Burger and the addition of Scalia. And that change is probably best seen as moving the Court somewhat to the right.

TG responds: right you are; I corrected the post accordingly. Good catch.

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