Analysis: A Clean Sweep for Conservatives?
As we enter the last few decision days of the Term – with 17 cases remaining – I want to raise the prospect that the Term will ultimately reveal that the Court’s ideological shift has been far more profound than almost anyone outside the building has realized so far.
Here are the numbers to this point. Eleven cases have been decided by a five-to-four vote on classic ideological lines. Justice Kennedy has cast the deciding vote in each – six times with the right and five with the left. Those results suggest a balanced outcome.
But the numbers are very misleading. In almost all of the meaningful cases decided thus far – measured by their effect going forward – the conservatives prevailed. In particular, three of the five decisions in which Kennedy joined the left (Smith, Brewer, and Abdul-Kabir) were essentially fact-bound rebukes of the Texas courts and Fifth Circuit for their application of the Penry II mitigating evidence rule. Those decisions are similar in their importance to the Court’s various summary reversals of the Ninth Circuit. A fourth (Marrama) decides a pipsqueak of a bankruptcy question.
The only arguably significant decision with that voting alignment is the global warming case (Massachusetts v. EPA), which got a lot of press but may not amount to much. The Court merely told the EPA to consider regulating carbon. And its standing holding is quite fact-bound.
By contrast, the five-to-four decisions in which the conservatives have prevailed have tended to be genuinely significant. Most notable, of course, is the Carhart abortion case, more so for its doctrinal and public significance than the significance of that particular procedure. In Ledbetter, the Court broadly applied the Title VII statute of limitations in the context of a frequently recurring fact pattern.
To the same effect, the three Texas death penalty decisions discussed above pale in comparison to three other capital cases in which the Court adopted structural rules that will limit challenges to capital sentences: Ayers on mitigating evidence; Schriro on the right to an evidentiary hearing; and Uttecht on excluding jurors who have doubts about the death penalty.
But we are not done. The consensus is that the Chief Justice is writing an opinion invalidating the school assignment programs. The federal campaign finance law at issue in Wisconsin Right to Life is likely to be struck down on the same voting alignment.
That would truly be an extraordinary Term, but I get the sense that there may still be more. The fact that Justices Ginsburg and Stevens dissented from the bench in three cases – twice in late May and early June after all the votes had been cast – strongly suggests an exceptionally high level of frustration on the left. (Neither does such a thing lightly.) It seems entirely possible that the remaining cases involving, for example, challenges to public funding of programs with religious components (Hein), search and seizure (Brendlin), and the environment (Defenders of Wildlife) all will be decided five to four, with Justice Kennedy siding with the conservatives.
If that happens — and I think it is likely that it (or something close to it) will — the President will have gotten with his appointments precisely the Court he sought and that liberals feared. We can already count on conservative rulings on race, abortion, campaign finance, and the death penalty, and may be able to add to that religion, the Fourth Amendment, and the environment. It would be a memorable Term indeed.
It would be a memorable Term indeed.
Despite feeling as if I could predict what Chief Justice Roberts will say in the race cases blow for blow, I am refusing to believe that he really would elevate a rule of blind ignorant neutrality over what is likely the last remaining weapon against the spread of privately choosen segregation. I would rather be disappointed than pessimistic.
But, if I am wrong, such a sharply one-sided term raises dramatic questions for future progressive focus — given that the Court historically based much of its legitimacy on claims to be following the rule of law rather than politics. Judge Posner titled his recent Harvard Law Review Forward “A Political Court.” I was led to believe in law school that legal realism was a progressive force, but “law=politics” seems to be just the mantra of the current political winners.
If that is the case, and the judiciary really is politically captured, then it is time for the progressives to be populists again. To find the economic and social issues on which majority consensus can be taken left of center, and promote them to the people themselves.
Comment by Corey Johanningmeier — June 14, 2007 @ 2:03 am
It seems to me that any analysis of the “ideological shift” of the Court is extremely wanting if it doesn’t compare the Court’s recent decisions to what the decisions would/might have been with the previous Justices (Rehnquist and O’Connor). Granting that Roberts would have voted similarly to Rehnquist, the question then becomes how Alito votes compared to O’Connor. The common media belief is that he is more conservative, and that is probably true. But one can’t simply assume that in every case in which he was part of the conservative 5-4 majority, O’Connor wouldn’t have voted the same way.
Sure, there are some: Carhart is the most likely candidate. But not so for others. In Ledbetter, for example, while the popular media simply assumed that O’Connor would have voted with the now-minority (on the analytically stellar basis of “she’s a woman”), it’s probably the case that she wouldn’t have, as she dissented in the prior case that the Ledbetter minority relied on to justify its reasoning. If the school-race cases come out 5-4 as people are predicting, maybe O’Connor would have voted with that side, maybe not. She wrote Grutter, but that wasn’t a sweeping opinion, and she also voted to strike down the more mechanical Michigan undergrad rule in Gratz. The question is where these school systems fall within that rubric. O’Connor wrote the majority in McConnell, but that doesn’t necessarily mean she wouldn’t also agree with the conservatives in Wisconsin Right to Life, if they are in fact set to uphold an as-applied challenge to BCRA. Reason: McConnell dealt with a facial challenge; Wisconsin Right to Life addresses an as-applied challenge. Two different questions, and for someone like O’Connor, who drew lines with the exactness of a laser, a different set of facts could make a big difference in outcomes.
O’Connor was also far from a trusty anti-death penalty vote, so it’s unlikely that all three 5-4 conservative death penalty outcomes would have been different. The point is that talk of “ideological shift” is unwarranted without performing a rigorous analysis of where SOC would have come out (meaning more than the popular media’s “she’s a moderate woman, Alito’s a conservative man” style of analysis).
There’s also looseness in some of the post’s characterizations. Ayers a significant opinion? No way. Like the Texas death penalty cases the author deems insignificant, it addressed a unique California death penalty statute that is no longer in effect. It was an extraordinarily factbound case. Brendlin a 5-4 decision? Even conservative commentators have been anticipating a 9-0 reversal of the very questionable lower decision. And there’s no mention at all of the Court’s business cases. But Philip Morris (the first one, not the more recent one), Bell Atlantic, and Rockwell were all significant pro-business, anti-plaintiff decisions that gained the support of both Justices Souter and Breyer (excepting Breyer in Rockwell, as he was recused). I know it doesn’t make for a good narrative since they weren’t decided on “traditional” ideological grounds, but you can’t just ignore cases that don’t involve the usual split.
Comment by Taylor Reynolds — June 14, 2007 @ 9:14 am
Given the glacial pace at which the law typically evolves, I would say that if there are just 2-3 blockbuster cases that would have turned out differently with Justice O’Connor on the bench, it has to be regarded as a rather significant shift.
Indeed, some would argue that Carhart is enough by itself, no matter how the rest of the Term turns out. I certainly didn’t read Tom’s post as suggesting that every one of the Term’s 5-4 conservative majorities would have turned out the other way.
Comment by Marc Shepherd — June 14, 2007 @ 10:16 am
I don’t disagree with Tom’s conclusion, but after reading Bowles v. Russell, I think I know what Ginsberg was steamed about.
I certainly agree with Tom that the right wing got the better of the death penalty cases, although I decided not to reiterate my earlier remarks here, pooh-poohed by others, that Kennedy was bloodthirsty. But the obvious joy with which Thomas cites the case of a death case going unexamined because of a missed filing deadline is really beyond the pale. Even the Kent Scheidiggers of the world must admit that the decision neither comports with previous decisions nor displays intellectually honesty. This is the kind of case where the Court misses Rehnquist’s surface-skimming ipse dixits.
The authoritarian right clearly holds sway on the Court, even the libertarian right (Kozinski) is just another 9th circuit case to be reversed. The Court gave us Bush, and Bush gave us the Court. Woe unto the nation.
roger friedman
Comment by r.friedman — June 14, 2007 @ 12:50 pm
“Woe unto the nation.”
We shouldn’t give in to despair. It is only bad to the extent that one thinks the Court has to be “the decider” on every issue. Progressive lawyers can also lobby democrat-controlled legislatures, or bring ballot initiatives, or get elected President.
(Of course it is a bit silly of me to disparage Court-watching on SCOTUSBlog. But I do think it is important not to devote more energy to a politically captured Court than it takes to hold the line.)
Comment by Corey Johanningmeier — June 14, 2007 @ 1:13 pm
Roger Friedman — Can you explain the basis for your comment about Justice Thomas’s “obvious joy” in citing a death penalty case? The footnote in question seems merely to cite an example of a severe consequence that has attached to missing a filing deadline. The tone and language are both quite dispassionate. I really don’t see anything there that could reasonably be characterized in so dramatic a fashion as “beyond the pale.” Could you elaborate?
Comment by Taylor Reynolds — June 14, 2007 @ 1:43 pm
Roger, there are a couple of errors in your comment in addition to the one Taylor has already noted. First, Dickson’s case did not go unexamined. It was examined by the Texas Court of Criminal Appeals on direct appeal, the state trial court on state habeas, the CCA again, the Federal District Court on federal habeas, and the Federal Court of Appeals on appeal from that ruling.
Second, you spelled my name wrong.
On the point of the main post, Tom is a little too dismissive of the Texas cases in claiming a “clean sweep” for “conservatives.” The Texas cases constitute further implementation of a line of cases that was fundamentally wrong from the start. It is disappointing to see the author of Johnson v. Texas abandon his previous efforts to limit this misguided line.
Comment by Kent Scheidegger — June 14, 2007 @ 2:31 pm
Tom,
Could you elaborate a little on your suggestion that Massachusetts v. EPA’s “standing holding is quite fact-bound”? I would have thought (and have said) quite the opposite, that the standing aspect of the decision is by far the more far-reaching and destructive aspect of the case.
Comment by Simon Dodd — June 14, 2007 @ 2:42 pm
Taylor, I agree with most of your comment, and I specifically agree that a lot of commentary has assumed without any kind of analysis that Justice O’Connor would have voted for Ledbetter, but if you’re referring to Bazemore in saying that O’Connor “dissented in the prior case that the Ledbetter minority relied on to justify its reasoning,” I’m not sure that’s exactly correct. In that case, O’Connor indeed joined Justice White’s opinion, but she also joined (as did every member of the court) that part of Justice Brennan’s opinion on which the Ledbetter dissenters rested.
Comment by Simon Dodd — June 14, 2007 @ 3:07 pm
Simon — I was actually referring to National Railroad Passenger Corp. v. Morgan, where Justice O’Connor dissented from the Court’s holding that relaxed time limitations on hostile work environment claims under Title VII; in doing so, she took a much more limited view of the notion that repeated acts constitute a new act of discrimination each time.
Comment by Taylor Reynolds — June 14, 2007 @ 3:41 pm
Kent Scheidegger,
Correct me if I’m wrong, but I believe that Dickson’s case did not receive more than the highly deferential AEDPA “sorry you’ve got no SCOTUS case directly speaking to the issue” review by a life-tenured judge. I don’t know about appellate review, but I’ve seen many statistics that show that elected judges are far more likely to sentence to death close to elections, and in light of some of the recall elections that have taken place recalling some California Supreme Court judges with a soft on crime reputation, it seems reasonable to believe that appellate judges subject to reelection will sometimes, at least on the subconcious level, let a fear of electoral defeat affect their rulings. It is thus reasonable to conclude that Dickson didn’t receive any meaningful impartial examination of his case.
Comment by Jacob Berlove — June 14, 2007 @ 4:27 pm
Kent –
At least I got the i and e in the right order, unlike Gretchen.
I used “unexamined” not “unreviewed” in the sense that the Justices never even got to see the petition. Unless you have a better adjective, it will just have to remain the unexamined death.
I noticed on your blog that you made the same point, that there had been plenty of judicial reviews, but that you did not defend the decision on its own logic. And my “Even the Kent” sentence was written before I saw your blog.
Taylor –
I say “obvious joy” because (1) the example adds nothing to the logic or force of the opinion, as noted by the dissent; (2) as an example, he could have merely noted the rule, or the Clerk’s policy, without mentioning any specific case; and (3) having cited the case, he need not have added the “without our ever” line. Maybe “relish” would have been better than “joy”.
So here’s a modest proposal that will both take care of Tom’s concern about the shrinking docket and Kent’s concern about delays in executions — how about if the Court starting hearing a lot more petitions from direct appeals in death penalty cases. It would cut out the federal habeas on all those issues.
As one who listens to all the Ninth Circuit aguments, it’s clear that judges learn a lot from seeing lots of similar cases, their questioning gets sharper and their willingness to accept debatable assertions declines. What occurs to me is that the Supreme Court is too selective, they need to keep their hands in the judicial stream. They need to apply their rulings to the cases before them, not just remand for procedings consistent. I don’t think circuit judges often worry about becoming unelected policymakers, they’re too busy keeping up with their dockets.
roger friedman
Comment by r.friedman — June 14, 2007 @ 4:30 pm
Jacob,
Your premise that life-tenured judges and only life-tenured judges are unbiased is one that I do not share, and, with AEDPA, has been rejected by Congress. California, far from supporting the case for life tenure, supports the position that a middle ground between life tenure and partisan elections provides the closest to optimum that we are going to get with a problem that has no perfect solution.
California appellate judges stand for a yes/no vote once every 12 years. Only once in 70+ years have any been removed, and that was exactly when they should have been — a runaway, agenda-driven court that was a disgrace to the state. The California Supreme Court after the election was a vastly improved court, and to this day it remains superior to the life-tenured, often-reversed (but not often enough) Ninth Circuit.
Roger, I think you are splitting hairs claiming that “unexamined” means something different from “unreviewed,”, but I’ll leave it at that.
Comment by Kent Scheidegger — June 14, 2007 @ 5:54 pm
I agree that life-tenured judges have biases too, but I have to be a bit suspicious when the only examples Kent can provide are liberal ones — as if there were no such thing as a biased conservative.
Comment by Marc Shepherd — June 14, 2007 @ 7:23 pm
Kent,
I do not believe that life tenured judges are necessarily unbiased, only that they are capable of being unbiased. Statistics with sentencing judges would seem to indicate that elected judges with no life tenure are incapable of being unbiased when it comes to dealing with serious criminal cases. I also fail to see any indication that Congress has rejected this premise. The passage of AEDPA by elected legislators in a get tough on crime political atmosphere hardly indicates that any congressman, much a less a substantial number of them, considered or cared about the subtle (and sometimes not so subtle pressure) on judges who have to face reelection to give the government in a criminal case the benefit of the doubt whenever possible. The pitch to the public on passage of the bill surely wasn’t “we want to give state judges (including those who have to face reelection) all the credit they deserve for exercise of impartial judgement unimpared by fear of recall for issuing too many decisions contrary to the spirit of the time, so we’re going to severely curtail federal review in recognition of their impartiality”, but something closer to “we have too many criminals getting off too easy by the federal courts, and executions are taking too long to happen, so we’re going to impose a tough deadline on federal habeas coupled with a standard making it quite rare [at least in the hope of the sponsors] that dangerous criminals will get new trials on some technicality”. That is hardly a careful study concluding that judges having to face reelection are as capable of ruling impartially as life-tenured judges.
Comment by Jacob Berlove — June 14, 2007 @ 7:53 pm
Jacob, where have you looked for the indication you fail to see? Not in the Congressional Record of the debate on AEDPA, obviously.
Comment by Kent Scheidegger — June 15, 2007 @ 11:25 am