Round-Up
At FindLaw, here, Edward Lazarus assesses what the 2008 and 2012 presidential elections might mean for the make-up of the Supreme Court, arguing that “the Court is at a tipping point between a significant move rightward and a radical move rightward,” and, while a Democratic president probably wouldn’t have much of an effect on the Court’s current trajectory, a Republican most certainly would. In other election-related news, Reuters reports here that, in speeches at a Planned Parenthood conference, top Democratic contenders Hillary Clinton and Barack Obama both spoke out against the Court’s ruling on late-term abortions.
Ronald Krotoszynski analyzes the importance of culture to the Morse v. Frederick decision (perhaps better known as the “Bong Hits 4 Jesus” decision), suggesting that since the questions presented in the case were “as much cultural as legal questions,” one might “predict that in another culture, these questions could have different answers.” Read here how he imagines the questions might have been answered in Japan, Germany and Canada.
In the wake of the Court’s WRTL ruling, Rick Hasen, in a post on Election Law, urged the FEC to make a rule about “what kinds of ads can be funded with corporate and union money” before the 2008 election “gets into full gear.” After the FEC’s announcement today, Rick updated his post. Read both posts here.
The Lazarus piece builds on many of the observations that Tom Goldstein has already made here on ScotusBlog. However, one of Lazarus’s observations seems to be dubious. Discussing the prospect of a Souter retirement, he writes:
“On the other hand, if Stevens retires, Souter will become the senior member of the liberal wing. With that seniority, will come the prerogative of writing a lead opinion (either the majority or the dissent) in almost every major case. Stevens has used this assignment power very effectively, to build a substantial legacy for himself. Perhaps Souter would be enticed to stay on the Court by the prospect of following suit.”
It is true that if Justice Stevens retires, Justice Souter will become the senior liberal. However, the liberals can never prevail without at least one conservative joining them. In most cases that would be Justice Kennedy, and Kennedy outranks Souter, as do Justice Scalia and Chief Justice Roberts. So Justice Souter would be able to assign the majority opinion only in the unlikely case that the fifth vote is supplied by Justice Thomas or Justice Alito. That is probably not going to happen very often. Justice Souter would have the controlling assignment for a lot of big dissents—a prospect that I cannot imagine he finds very exciting.
Comment by Marc Shepherd — July 20, 2007 @ 9:20 am
I’m unimpressed with claims that the current court is conservative.
When a SCOTUS overturns (not nibbles away at the edges, but actually overturns) the 5 or so biggest liberal decisions from the 1950s thru the 1970s, the ones that basically re-wrote the constitution that congress and the states had enacted from the bench, including Brown, Roe, Miranda, Reynolds, Gideon, and Vitale, then we’ll have a conservative court.
Until then, we’re still living in the Warren-Brennan era of jurisprudence.
Comment by steve jaros — July 20, 2007 @ 1:14 pm
Oh, really? Any idiot ought to be able to name dozens of recent decisions that, in the Warren-Brennan era, would have come out the other way, starting with this Term’s partial-birth abortion case.
Obviously the conservatives have not prevailed in 100% of cases, but then, Justice Brennan didn’t prevail 100% of the time either. Clearly the Court is more conservative than it was just two years ago, and it’s much more conservative than it was when Earl Warren was on the bench.
In the Court’s most recent opportunity to overrule Miranda, Chief Justice Rehnquist wrote the majority opinion declining to do so. If he was not a conservative, then the word has no meaning.
Comment by Marc Shepherd — July 20, 2007 @ 1:36 pm
“Clearly the Court is … much more conservative than it was when Earl Warren was on the bench.”
Los Angeles is much more conservative than San Francisco, but that doesn’t make LA a conservative place by any stretch.
Evidence is still being suppressed for reasons that have nothing to do with its reliability. Capital sentencing remains bogged down with a byzantine set of rules fabricated from whole cloth, with no basis in the text or history of the Constitution. Prosecutors still can’t mention the obvious fact that the defendant knows the truth and chooses not to tell it.
The legacy of Warren and Brennan has been pruned back but not uprooted, and it doesn’t seem to be in danger of uprooting.
Comment by Kent Scheidegger — July 20, 2007 @ 4:41 pm
Marc Shepard wrote:
“Oh, really? Any idiot ought to be able to name dozens of recent decisions that, in the Warren-Brennan era, would have come out the other way, starting with this Term’s partial-birth abortion case.”
I think you make my point. “partial birth abortion” cases are an example of nibbling at the edges. It’s still well within the confines of Roe v. Wade, a foundational liberal decision, and one that this current allegedly “very conservative” court lacks 5 votes to overturn.
This current court has pruned some leaves, but the branches and roots are Warren-Brennan decisions. We’d need at least another Scalia, possibly two, to actually undue the damage done during the Warren-Brennan era.
Comment by steve jaros — July 20, 2007 @ 7:48 pm
You are correct that this Term’s partial-birth abortion case did not overrule ”Roe”. But it didn’t need to. One measure of conservatism is that cases are decided by the narrowest means possible. The alternative is what people call “activism,” which most conservatives oppose.
You see, the trouble is that once you sign up for activist judging, then it can go both ways. I mean, suppose a Democrat is elected in 2008, and Justice Scalia gets hit by a bus. How would you like it if a new 5-4 liberal majority starts ignoring precedents, and undoing all of the conservatives’ hard-won gains? Once you cast your lot with activism, you cannot guarantee that it will only go one way.
Comment by Marc Shepherd — July 23, 2007 @ 3:23 pm