Hey, Who Moved My Court?

Judging from some of the post-mortems from Monday's Supreme Court rulings, it appears that America's chattering class is shocked -- shocked! -- to discover that the court has moved even further to the right than it had been under the stewardship of the late Chief Justice William Rehnquist, the man who as a law clerk famously didn't think much of the court's seminal Brown v. Board of Education ruling.

The online landscape Tuesday is littered with analysis pieces that discuss as development what is merely confirmation: the so-called "Roberts Court" is precisely what President Bush promised it would be when he ran for reelection in 2004: more conservative, more pro-business, more open to the role of religion in government and less concerned with the rights of the downtrodden or those who have fallen through cracks in the system. If this is truly a surprise to you, you need to get out more, or at least pay more attention to Supreme Court law and politics.

Justice Samuel Alito is more conservative than was his predecessor, Sandra Day O'Connor? Go figure. Chief Justice John G. Roberts Jr. is a lot less beholden to court precedent than we were all led to believe? Can't be. He told the Senate Judiciary Committee over and over again during his confirmation hearing that he would respect precedent and try to build consensus on the court. Justice Anthony Kennedy isn't the second coming of the moderate O'Connor or the more liberal Souter? What a surprise! The election of 2004 (and 2000) mattered in shaping the court? Who knew?

The late-coming hand-wringing from mainstream media voices -- and I'll include myself in the chorus -- would actually be funny if it didn't reveal how pathetic too many of us were in 2005 and 2006, when first the chief justice and then his mini-me Alito were confirmed by the Senate. The kabuki dances that were their nomination hearings -- I'm sorry, senator, I just can't offer you any guidance about how I would rule in a future case -- now stand as comedic tragedies. Not because it is tragic to have conservatives on the court. But because everyone could spend so much time and energy on what was in the end such a worthless endeavor. The nominees were asked stupid questions and then were allowed to offer vague, meaningless answers.

The president nominated Roberts and Alito to replace Rehnquist and O'Connor because he wanted to take the court further to the right; wanted to achieve what his father and even Justice Kennedy's patron had failed to achieve -- a rock-ribbed right-wing conservative majority. He has achieved this goal. This is not news. What's news is that people today still profess to be surprised by the court's ideological reality or the practical consequences it has for all of us over the next generation.

By Andrew Cohen |  June 26, 2007; 8:04 AM ET
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To quote Scalia in Hein, the First Amendment is beaten to a pulp and denigrated, yet technically alive. Free speech for students--no, government funding of religion--yes. More conservative justices and it might be killed altogether--except for the wealthy and powerful. This is why Democrats must win in 08. When will the mainstream media learn that all nominees these days on both sides of the divide lie about their true beliefs to gain confirmation. Judge people on what they do, not say.

Posted by: merganser | June 26, 2007 10:44 AM

"more open to the role of religion in government"

Did you actually read the opinion? It turns upon the procedural issue of standing, not "the role of religion in government."


"and less concerned with the rights of the downtrodden or those who have fallen through cracks in the system."

The case you're referring to deals with the right of a convicted murderer to seek review in a federal court. Unless you have some reason to think the man's innocent, it's awfully perverse to refer to him as "downtrodden."

Posted by: Matt Tievsky | June 26, 2007 12:13 PM

"The case you're referring to deals with the right of a convicted murderer to seek review in a federal court. Unless you have some reason to think the man's innocent, it's awfully perverse to refer to him as "downtrodden.""

I am not a lawyer, but innocent until proven guilty apparently doesn't stop at 'proven guilty'. To be fair, there are many? several? (certainly "too many") cases where basic rights were violated and the appeals process is necessary to correct them. Where the burden of proof lies, or ought to lie, in such cases is a fair area for debate.

Posted by: Jeremy B | June 26, 2007 12:20 PM

I think the major question is whether Roberts and Alito will continue to be reliably conservative justices in the same vein as Rehnquist, or whether they will move to the Scalia / Thomas corner where over-turning rulings such as Tinker and Flaust is the order of the day...

With the exception of the McCain-Feingold ruling, none of the other rulings from yesterday are likely to have long-term impact thanks to the minimalist approach taken by Roberts and Alito. Had they instead joined the opinion of Scalia and Thomas, it would have represented a very significant change in jurisprudence.

Posted by: | June 26, 2007 12:49 PM

Jeremy B,

You are quite right. But Cohen goes off the deep end by apparently presuming that, in general, people convicted of murder aren't guilty, they're "downtrodden."

Posted by: Matt Tievsky | June 26, 2007 12:57 PM

How shocking the crying coming from the left.

I remember a time not so long ago when I heard the same whining from the right.

Of course Ms. Ginsburg readily responded to all questions asked during her confirmation. If you want to place blame for non responsive replies it rests at the feet of a democrat president and his lackeys on the committee who let justice Ginsburg skate thru her confirmation hearing. The Republicans seem to have learned the system pretty well. That is what has you and most libs so upset. The gall of Republicans to use the same tactics as Democrats. You ar now paying the full price for your lies from 1988.

I find it quite funny and am enjoying more conservative court and I am not even a Republican.

Posted by: Sam Early | June 26, 2007 01:50 PM

I'm positive Andrew doesn't generally excuse murder (apparently this wasn't self -defense)as downtrodden.
Merganser, what you do can also be faked as an opportune role;yes I know what you are trying to say.

Yup Andrew, funny; just about every sentence is what I thought.

Roberts, Alito, Scalia, Thomas -that's 4 sure votes right there unless Roberts trips on a rock and hits his head- 5, with Kennedy often siding with them. I thought THAT was obvious from the getgo. 5-4 practically built in , assuming the others even hold their own. And with those posting in previous threads about how the court is the ultimate arbiter in the land , imagine how I feel as a Souter and John Paul Stevens (if anyone)supporter!

Posted by: Denis | June 26, 2007 02:13 PM

The Bowles decision defies common sense. It was truly absurd.

The guy misses a filing deadline by two days because the judge gives him the wrong information and yet there is no recourse for the man to appeal the ruling in his case?

We're talking potentially about a life sentence here--not a 30 month term. Our justice system better make damn sure that it gets it right--which is exactly why we have an appeals process. Well, apparently not in this case.

Posted by: JP2 | June 26, 2007 02:53 PM

How can it be that in such an enormously diverse country as the United States, there are 8 men and only 1 woman on the Supreme Court Bench. This is a travesty, plain and simple. How can such a Court be remotely representative of it's citizens. It should be legislated that the Court must 5/4 males to females or vice versa at all times.

Posted by: Charles Wilson | June 26, 2007 04:45 PM

"Lies of 1988?" You mean, the Scalia confirmation? Have you ever read the transcripts of Ginsburg's hearing (June 1993, btw, during a time when there was actually a Democratic President sitting...)?

"Much of the initial resistance to Ginsburg's nomination came from within the feminist movement because she had expressed reservations about the reasoning of the Supreme Court's decision in Roe v. Wade (1973) upholding a woman's right to choose an abortion. Ginsburg would have preferred a more measured approach--an opinion that invited gradual liberalization of state abortion laws, one that might avoid a political backlash. At her confirmation hearings, however, Ginsburg dispelled any doubts about her commitment to a woman's reproductive choice. She characterized a woman's right to choose an abortion as "something central to a woman's life, to her dignity... And when government controls that decision for her, she's being treated as less than a full adult human being responsible for her own choices.'"

http://www.supremecourthistory.org/myweb/justice/ginsburg.htm

She refused on several occasions to give answers to how she would review specific cases before the court, but left no doubt of exactly what her judicial philosophy was and how it would be applied to broader legal issues. This has beeen spun by idiots on the right as refusing to answer anything about her legal philosophy and justification for the lies of Roberts and Alito in their confirmation hearings last year (They wouldn't even touch their positions on Roe except to acknowledge that the courts had ruled on it and something about Stare Decisis). Can we finally put this right-wing lie about the "Ginsberg standard" to a rest?


Senator Hatch [R-Utah]: [H]ow do you distinguish as a matter of principle between the substantive due process right of privacy that the Supreme Court has developed in recent decades from the rights the Supreme Court developed on its own accord in Dred Scott v. Sanford and the Lochner v. New York case?

Judge Ginsburg: I don't think, Senator Hatch, that it is a recent development. I think it started decades ago. * * * It started in the 19th century. The Court then said no right is held more sacred or is more carefully guarded by the common law. It grew from our tradition, and the right of every individual to the control of his person. The line of decisions continued through Skinner v. Oklahoma (1942), which recognized the right to have offspring as a basic human right.
I have said to this committee that the finest expression of that idea of individual autonomy and personhood, and of the obligation of the State to leave people alone to make basic decisions about their personal life [is] Justice Harlan's dissenting opinion in Poe v. Ullman (1961). * * *

Senator Hatch: [B]ut in my view it is impossible, as a matter of principle, to distinguish Dred Scott v. Sanford and the Lochner cases from the Court's substantive due process/privacy cases like Roe v. Wade. The methodology is the same; the difference is only in the results, which hinge on the personal subjective values of the judge deciding the case.
Judge Ginsburg: In one case the Court was affirming the right of one man to hold another man in bondage. In the other line of cases, the Court is affirming the right of the individual to be free. So I do see a sharp distinction between the two lines.


Senator Leahy [D-Vt.]: Senator Metzenbaum had asked you whether the right to choose is a fundamental right. Is there a constitutional right to privacy?

Judge Ginsburg: There is a constitutional right to privacy composed of at least two distinguishable parts. One is the privacy expressed most vividly in the fourth amendment: The Government shall not break into my home or my office without a warrant, based on probable cause; the Government shall leave me alone. The other is the notion of personal autonomy. The Government shall not make my decisions for me. I shall make, as an individual, uncontrolled by my Government, basic decisions that affect my life's course. Yes, I think that what has been placed under the label privacy is a constitutional right that has those two elements, the right to be let alone and the right to make decisions about one's life course.
Senator Leahy: And absent a very compelling reason, the Government cannot interfere with that right? * * *
Judge Ginsburg: The Government must have a good reason, if it is going to intrude on one's privacy or autonomy. The fourth amendment expresses it well with respect to the privacy of one's home. The Government should respect the autonomy of the individual, unless there is reason tied to the community's health or safety. We live in communities and I must respect the health and well-being of others. So if I am going to accord that respect on my own, the Government appropriately requires me to recognize that I live in a community with others and can't push my own decisionmaking to the point where it would intrude on the autonomy of others.

Chairman Biden [D-Del.]: [D]o you agree that the right of privacy is fundamental, meaning that it is so important - I am not asking about any specific right of privacy - meaning that it is so important, that the Government may interfere with it only for compelling reasons, when it finds such a right exists, the right of privacy?
Judge Ginsburg: The line of cases you just outlined, the right to marry, the right to procreate or not, the right to raise one's children, the degree of justification the State must have to interferewith those rights is large.

Senator Feinstein [D-Calif.]: My question is: Did the Court in Casey explicitly erode the protections previously afforded women under Thornburgh v. American College of Obstetricians?
Judge Ginsburg: I have two responses. One is, as I said before, that heightened scrutiny for sex classifications remains an open question. Justice O'Connor made that clear in the Mississippi University for Women (1982) case. Sex as a suspect classification remains open. It wasn't necessary for the Court to go that far in that case. The Court struck down the gender-based classification. So it is not settled that sex classifications will be subject to a lower degree of scrutiny than limitations on fundamental rights. It is just that the Court has left the question open, and it may some day say more.
If you are inquiring about the specific rulings in Thornburgh (1986) as against the rulings in Casey (1992), yes, I think there are respects in which Casey is in tension with Thornburgh. Restrictions rejected in Thornburgh were accepted in Casey. So I must say yes, the two decisions are in tension, and I expect that the tension is going to be resolved sooner or later. Similar issues are likely to come before the Court again, so I can't say more than yes, the two decisions are in tension; that is where we are at the moment.

Senator Metzenbaum [D-Ohio]: After the Casey decision, some have questioned whether the right to choose is still a fundamental constitutional right. In your view, does the Casey decision stand for the proposition that the right to choose is a fundamental constitutional right?

Judge Ginsburg: The Court itself has said after Casey (1992) - I don't want to misrepresent the Supreme Court, so I will read its own words. This is the statement of a majority of the Supreme Court, including the dissenters in Casey: "The right to abortion is one element of a more general right of privacy . . . or of the Fourteenth Amendment liberty." That is the Court's most recent statement. It includes a citation to Roe v. Wade. The Court has once again said that abortion is part of the concept of privacy or liberty under the 14th amendment.
What regulations will be permitted is certainly a matter likely to be before the Court. Answers depend, in part, Senator, on the kind of record presented to the Court. It would not be appropriate for me to go beyond the Court's recent reaffirmation that abortion is a woman's right guaranteed by the 14th amendment; it is part of the liberty guaranteed by the 14th amendment.
Perhaps I can say one more thing. It concerns an adjustment we have seen moving from Roe to Casey. That Roe decision is a highly medically oriented decision, not just in the three-trimester division. Roe features, along with the right of the woman, the right of the doctor to freely exercise his profession. The woman appears together with her consulting physician, and the pairing comes up two or three times in the opinion, the woman,
together with her consulting physician.
The Casey decision, at least the opinion of three of the Justices in that case, makes it very clear that the woman is central to this. She is now standing alone. This is her right. It is not her right in combination with her consulting physician. The cases essentially pose the question: Who decides; is it the State or the individual? In Roe, the answer comes out: the individual, in consultation with her physician. We see in the physician something of a big brother figure next to the woman. The most recent decision, whatever else might be said about it, acknowledges that the woman decides."

More FACTS on Ginsberg's hearing can be found here:

http://www.acslaw.org/files/Bennard%20re%20Ginsburg%20confirmation%20hearings.pdf

Posted by: Michael | June 26, 2007 06:05 PM

Don't worry too much, the advantage to the incrementalist approach is in two years the Dems will retake the White house, and in that next four years there's a decent chance Scalia will have a heart attack or Thomas will die of syphilis.

Posted by: | June 26, 2007 06:20 PM

If the program in the religion case had explicitly funded religious groups directly, in violation of the First amend, would anyone have the ability to challenge that program?

Posted by: jss | June 26, 2007 06:23 PM

What would be truly spooky is if one of the 4 would have to be replaced. I guess Miers and Gonzo are out, but what if we had another Thomas or Scalia (or two....) on the court...a child has no 1st amendment right to free speech? Oh boy.....

Posted by: WOW | June 26, 2007 07:04 PM

BS Charles; it isn't supposed to be representative of the sociological categories which may have nothing to do with how someone thinks and why, not that the current court is representative of intellectual open mindedness. Many are so quick to assume what is SUPPOSED TO BE these days often in their own image, and then demand legislation and representation. I don't like your proposal.

Posted by: Ted Drysdale | June 26, 2007 07:24 PM

Anon 6:20 was mean but funny.

Posted by: | June 26, 2007 07:27 PM

If one of the 4 left were to leave for whatever reason, Bush would have to nominate a moderate, no other way about it. Another Scalia, or even a Roberts, would probably not make it through committee and therefore not be confirmed, and if hard core conservatives were pushed, say Janice Rodgers Brown or Edith Jones, the push from the hard right would expose their agenda to the broader public which, to this point, has been obscured as they push an incrementalist approach (undermine Roe by arguing for broader state discretion rather than strictly pro life language that frightens moderates). Were that to happen, notonly would the nominee not be confirmed, but it would severely weaken the GOP going into the election.

Remember, Thomas and the pending case of Casey energized the pro-choice movement going into 1992, helping the Dems win that election. The pro-choice side has been dormant and confused for a while based on the right's current tact, but such a bold move would probably flip the battle again and give the pro-choice side the momentum.

"If the program in the religion case had explicitly funded religious groups directly, in violation of the First amend, would anyone have the ability to challenge that program?"

The whole underlying strategy of the Federalist Society- never mind if it's legal or not, just say no one has the standing to challenge it.

Posted by: Michael | June 26, 2007 08:34 PM

Michael:

After seeing the agenda of the Federalist Society, in my mind, membership in that organization raises immediate red flags about whether a nominee is qualified to sit on the bench. The only thing I can discern about the Federalist Society is that it is dedicated to dismantleing of over 200 years of American jurisprudence.

Posted by: Nellie | June 27, 2007 07:10 AM

Nothing like getting you guys to admit how far left the court had listed. When it finally "rights" itself, you're just all a twitter.

Posted by: Norma | June 28, 2007 05:49 AM

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