Call this post a full-court press on Supreme Court news and views (article on Stevens "The Dissenter," and "The Incredible Shrinking Court," need to be read by Monday):1) From the 2005 Senate comfirmation hearings of Samuel Alito, political cartoonist Mike Lane illustrated the constitutional conundrum facing the newest justice and the term stare decisis -- lettting the precedent stand unless there are compelling reasons not to -- and a woman's right to choose an abortion.
Alito's mother said, "Of course he's against abortion,'' in a classic sound-byte before during the confirmation hearings. The question is not really what the Alito believes personally, but as NPR reported in 2005 if that Roe v. Wade was settled law.
http://www.npr.org/templates/story/story.php?storyId=5012335
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2) U.S. Supreme Court Justice Clarence Thomas made news last week by speaking his mind, something he's not prone to do while on the job.
As the above data shows, Thomas' silence during Supreme Court oral arguments is legendary. While his colleagues pepper lawyers with questions, Thomas listens. While the other 8 justices force legal teams to perform verbal and logical gymnastics 30 minutes at a time, Thomas often leans back in his large chair and stares at the ceiling.
When he does speak during oral arguments, it's almost always in private conversation with Justice Breyer. (And from the looks at the menus that they swap, those conversations are often about what to get for lunch.)In the past, Justice Thomas has said the oral argument time is not meant for Justices to show off but for the lawyers to make their legal arguments before the Court. But Thomas has recently said--in jest-- that “My colleagues should shut up!”
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3) In the Ny Times article, "The Disenter," gives insight into how the High Court has moved right and now the self-proclaimed conservative, and eldest (and now retired) member of the Supremes, may have been be The Nine's most liberal justice:
"Justice Stevens, the oldest and arguably most liberal justice, now finds himself 
the leader of the opposition. Vigorous and sharp at 87, he has served on the court for 32 years, approaching the record set by his predecessor, William O. Douglas, who served for 36. In criminal-law and death-penalty cases, Stevens has voted against the government and in favor of the individual more frequently than any other sitting justice. He files more dissents and separate opinions than any of his colleagues. He is the court’s most outspoken defender of the need for judicial oversight of executive power. And in recent years, he has written majority opinions in two of the most important cases ruling against the Bush administration’s treatment of suspected enemy combatants in the war on terror — an issue the court will revisit this term, which begins Oct. 1, when it hears appeals by Guantánamo detainees challenging their lack of access to federal courts.
"Stevens, however, is an improbable liberal icon. “I don’t think of myself as a liberal at all,” he told me during a recent interview in his chambers, laughing and shaking his head. “I think as part of my general politics, I’m pretty darn conservative.”
http://www.nytimes.com/2007/09/23/magazine/23stevens-t.html?_r=1&oref=slogin
This is one of the two linked articles you need to read by Monday.
4) The second article you need to have read by Monday is Time's cover story from last October:
The Incredible Shrinking Court"The irony is that the Court's ideology is playing a dwindling role in the lives of Americans. The familiar hot-button controversies--abortion, affirmative action, the death penalty, police powers and so on--have been around so long, sifted and resifted so many times, that they now arrive at the court in highly specific cases affecting few, if any, real people. And it's not clear that Roberts wants to alter that trend. His speeches on the judicial role suggest a man more interested in the steady retreat of the court from public policy than in a right-wing revolution. Unless the Roberts court umpires another disputed presidential election (à la Bush v. Gore in 2000--a long shot, to say the least), the left-right division will matter mainly in the realm of theories and rhetoric, dear to the hearts of law professors and political activists but remote from day-to-day existence. What once was salient is now mostly symbolic."
http://www.time.com/time/magazine/article/0,9171,1670489,00.html
5) Finally, a re-run post from last year's 'Global Warming' SC decision:
The world saw former Vice-President being called a “rock star” and getting an Oscar from movie stars for his documentary on the “climate crisis,” and later a Nobel Peace Prize. But with far less glitz and fanfare, the legal definition of whether global warming is damaging US and the world was being argued in the U.S. Supreme Court a few months ago.
The new “swing vote” on the high Court is Justice Anthony Kennedy and his questions during the oral arguments in Massachusetts, et al. v. EPA (05-1120) seemed to indicate that justices may be ready to decide more than the case at bar.
At issue is the states’ (MA. and 12 others, including Illinois) lawsuit challenging the federal bureaucracy’s (EPA) lack of enforcement of an act of Congress (1990 Clean Air Act). The questions the Court is considering are:1) May the EPA decline to issue emission standards for motor vehicles based on policy considerations not enumerated in the Clean Air Act?2) Does the Clean Air Act give the EPA authority to regulate carbon dioxide and other greenhouse gases?Breaking down the oral argument, Justice Kennedy seemed to be saying the Court has a bigger, global, question to answer. But not all on the bench seemed to think it was in the Court’s jurisdiction.
From the transcript of the oral argument, Justice Kennedy is questioning counsel for the petitioners, the Massachusetts states attorney:
JUSTICE KENNEDY: At the outset, you made this, some of this perhaps reassuring statement that we need not decide about global warming in this case. But don't we have to do that in order to decide the standing argument, because there's no injury if there's not global warming? Or, can you show standing simply because there is a likelihood that the perceived would show that there's an injury?
MR. MILKEY: Your Honor, especially in this case where none of our affidavits were challenged, I don't think the Court needs to go there ultimately on the merits because we showed through our uncontested affidavits that these harms will occur. There was no evidence put in to the contrary, and I would add that the reports on which EPA itself relies conclude that climate change is occurring.
JUSTICE KENNEDY (later): What is the scientific answer to if global warming exists? I think this Court might have to press for an answer to this question.
(Justice Antonin Scalia’s prides himself as a strict constructionalist, and a Constitutional scholar. He never claimed to have aced Mr. Rosiano’s “Cosmic Journey” class, he chimes in):
JUSTICE SCALIA: Mr. Milkey, I always thought an air pollutant was something different from a stratospheric pollutant, and your claim here is not that the pollution of what we normally call "air" is endangering health. That isn't, that isn't -- your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contributing to global warming.
MR. MILKEY: Respectfully, Your Honor, it is not the stratosphere. It's the troposphere.
JUSTICE SCALIA: Troposphere, whatever. I told you before I'm not a scientist. (Laughter.)
JUSTICE SCALIA: That's why I don't want to have to deal with global warming, to tell you the truth.The decision in Massachusetts, et al. v. EPA (05-1120), given last June ruled in favor of Massachusetts.
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http://www.oyez.org/cases/2000-2009/2006/2006_05_1120/argument/
As we watched the Elena Kagan hearings last June, here are some sites to help you teach the US Supreme Court. First off the Chief Justice always writes a year end report which, among other things, talks about the number of cases appealed to the Court each year and how many were given certiorari. It is a very short document that your students could easily digest.
SCOTUS Blog is another great resource. Here is a link they put together yesterday on year end statistics, graphs, etc. (including how often each judge voted w. each other, the number of 9-0 decisions (more on this than any other) and much more.
Where does Elena Kagan stand on...//www.nytimes.com/interactive/2010/05/10/us/politics/20100505-kagan-opinions.html?ref=politics
2 comments:
The court seems to go through ideological phases due to the life-time terms of the members, allowing a very right, or left, or split court to exist for a long time before potentially undergoing gradual or sudden change.
More disturbing is the notion that the court's decisions are becoming unimportant. That would mean there's a risk that the triangle scale of checks and balances becomes a lopsided trapezoid as the power of the supreme court shrinks. The courts decisions over legislation and the executive branch's powers would become impotent, enabling abuse by the other branches.
However, the resounding implications of the Citizen's United case seems to imply that the court still has the power to make major decisions, even if its a 5-4 split and, IMO, was an awful decision. The outcome of the case pitting privacy versus the right of (offensive) speech may also set major precedent. The court may not be so small as the second article suggests.
It's fascinating to be how these justices go about in their decision making process. And the fact that the mindset or ideology of the justices determines the tone of an era is also noteworthy. It is slightly intimidating to think that the court's decisions are becoming unimportant. But ultimately they still have the power of the law and that influence can't be changed.
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