Supreme Court 2007-08 Term Winding Down in June (Justice Ginsburg has cancer)

[Red Dog]

Supreme Court term ends this month. Should be no retirements announced since it is an election year. However, there are some major cases yet to be decided. There have been some threads already devoted for some of these.

http://ap.google.com/article/ALeqM5gje9k96XH7RRFREgg8Zbf_1rv8ywD916NJP01

Supreme Court: 22 cases remain undecided
AP

Highlights of some high-profile Supreme Court cases, among the 22 that remain to be decided before the court begins its summer recess scheduled in late June:

- Rights of detainees at the Guantanamo Bay naval prison, some of whom have been held more than six years without charges. The detainees want to be able to seek their release in front of a U.S. civilian judge. The government says the detainees have no rights under the Constitution and that the process for classifying them as enemy combatants contains sufficient opportunity to make their case in court. Boumediene/Al-Odah v. Bush

- Gun rights, and the fate of a handgun ban in Washington, D.C. The court is undertaking the first comprehensive review of Second Amendment rights in U.S. history, and will decide whether individuals have a right to own guns, or whether that right is linked to service in a militia. D.C. v. Heller

- Death penalty for raping a child. A man on death row for raping his 8-year-old stepdaughter is challenging a Louisiana law allowing the death penalty for the crime, even when it does not include the death of the victim. The last execution for a crime that did not also include murder was more than 40 years ago and the court outlawed the death penalty for raping an adult woman in 1977. Kennedy v. Louisiana

- Punitive damages in the Exxon Valdez oil spill. Exxon Mobil Corp. is fighting a $2.5 billion judgment for the environmental disaster in Alaska 19 years ago that ensued after the supertanker ran aground on a reef. Exxon v. Baker

- Rights of Americans detained in Iraq. At issue is whether the U.S. military should be allowed to turn over two foreign-born U.S. citizens to the Iraqi government for criminal proceedings. Munaf v. Geren, Geren v. Omar


It's June Madness, baby!
http://www.ramapo.edu/news/magazine/vol2issue1sp01/images/Dvitale2.jpg

[Red Dog]

Interesting article by Edward Lazarus on how the Court hasn't quite followed the ideological 5-4 pattern so far that we saw last year.

http://writ.news.findlaw.com/lazarus/20080606.html

The Supreme Court’s Term So Far: An Unusual Degree of Agreement, With Liberals Joining “Conservative” Rulings and Vice-Versa
By EDWARD LAZARUS
Friday, Jun. 6, 2008

Although the Supreme Court has yet to decide some of the most important pending cases before it, it is not too soon to say that this has been a surprising term. Based on last term’s record, most prognosticators (including me, I must confess) thought that this term would see another spate of hard-fought 5-4 decisions in which the Court split along its well-established ideological divide, with Justice Anthony Kennedy playing the role of swing justice, delivering victory to one side or the other. Instead, the Court has achieved a significantly higher degree of consensus in many cases that were good candidates for 5-4 battles – with some liberal justices joining “conservative” decisions and some conservative justices joining in “liberal” ones.

In this column, I’ll examine some of the cases that might have been 5-4, but were not, and also consider explanations for why the Court has been able to achieve more consensus than many expected.

A Spate of Recent Cases Illustrates the Court’s Ability to Avoid 5-4 Splits

The last couple of weeks have seen at least four new examples of this phenomenon. In two separate decisions, one 7-2 and the other 6-3, the Supreme Court decided that both Section 1981 and the Age Discrimination in Employment Act (ADEA) prohibit retaliation against employees who complain of discrimination, even though neither statute specifically states that it prohibits such retaliation. (The ADEA decision was Gomez-Perez v. Potter; the Section 1981 decision was CBOCS v. Humphries). Despite these liberal results, Justice Samuel Alito joined both of these decisions and even authored the decision interpreting the ADEA. Chief Justice John Roberts also joined the decision interpreting Section 1981.

Even more recently, a mixed-bag coalition of liberals and conservatives joined together to reverse two criminal convictions by giving the federal money laundering statute a relatively narrow construction, in United States v. Santosand Cuellar v. United States. Although the Court divided 5-4 in one of these two cases, the other decision was unanimous and, no less important, the Justices, in these cases, did not break down along ideological lines, nor did they depend on Justice Kennedy as the tie-breaker.

On the flip side of the ideological coin, earlier in the term the Court issued several “conservative rulings” in which liberal justices joined. For example, the Court upheld the controversial three-drug cocktail for carrying out the death penalty by a 7-2 vote in Baze v. Rees and, by a 6-3 tally, upheld Indiana’s stringent voter ID law, requiring voters to present a government photo ID on election day before casting a ballot, in Crawford v. Marion County Election Bd. A seven-justice majority also voted to uphold the latest Congressional attempt to restrict child pornography (after having repeatedly struck down previous attempts), in United States v. Williams. Meanwhile, some decidedly pro-business decisions have been decided by even more lopsided margins.

Is the Court’s New Ability to More Frequently Avoid 5-4 Splits and Ideological Divides Simply the Result of Its Current Set of Cases?

As Linda Greenhouse commented in a recent New York Times article astutely reporting the stark contrasts with last term, “[S]omething is happening, clearly.” Very true. But it is very hard to know exactly what is happening and what to make of it.

I begin with a strong caveat: It is highly artificial and not especially illuminating to look at the work of the Court on a term-by-term basis. The Justices don’t magically transform themselves over the summer recess between terms. In general, change within the Court comes, if at all, either through retirement or gradually over the course of years.

How any particular term shapes up is powerfully influenced by the kinds of cases that happen to come up for review during that particular term. Some terms, like the last one, are crammed full of ideologically-charged cases – abortion and racial preferences, for example – which highlight the ideological divisions on the Court. Other terms, like the current one, are filled with cases that either carry less ideological freight or, for idiosyncratic reasons, create coalitions encompassing some pretty strange bedfellows.

Justices’ Interpretive Preferences May Combine with the Mix of a Term’s Cases to Produce Votes that Do Not Seem To Track Justices’ Typical Ideology

Sometimes, for example, the emphasis that Scalia and Thomas put on the “plain language” of statutes drives them to “liberal” results. For example, in United States v. Santon this approach led to their votes for overturning a criminal conviction on the ground that the word “proceeds” in the federal money laundering statute should be read as limited to the “profits” of a corrupt business and not to its gross receipts (as the prosecution had alleged).

By the same token, Justice Stephen Breyer’s predilection to defer to the judgments of federal administrative agencies often leads him to “conservative” pro-business outcomes. For instance, Breyer was in the majority in the recent pre-emption cases in which the Court has prohibited lawsuits based on state consumer protection laws in certain situations where a federal agency has already placed its imprimatur on the safety of the product at issue.

One way to sum up this phenomenon is to say that justices coming at problems from very different perspectives can sometimes reach the same bottom line in a case despite their ideological differences. And that, if a given term happens to have an unusually high number of these cases, the basic dynamics of the Court, which is still divided into two very distinct ideological wings, can be obscured.

A Shared Interest in Consensus on the Part of Both Conservative and Liberal Justices May Also Be at Work

At the same time, however, it seems fair to say that at least one other phenomenon is at work within the current Court that is driving a surprising degree of consensus. For the moment, at least, some members of the conservative wing (Roberts especially) and some members of the liberal wing (Stevens especially) seem to have a shared interest in handing down compromise decisions that can garner more than the usual narrow five-Justice majorities.

For Chief Justice Roberts (and Alito too, one suspects), the issue is one of being true to his word. To great fanfare, Roberts claimed a profound commitment to bringing greater consensus to the Court as well as to giving a high degree of respect to precedent. Last term, this goal eluded him and, frankly, given Roberts’ own role in some of the divisive cases, some suspected that he lacked the courage of his professed convictions. This term, however, his commitment to a more collegial, unified Court has re-emerged.

But achieving greater consensus necessarily entails compromising with the Court’s liberal wing in order to limit the scope of conservative decision. Reflecting this stubborn fact, a lot of the “consensus” decisions the Roberts Court has produced, especially in controversial areas of law, have been extremely narrow -- indeed, almost case-specific. So it is, to cite but one example, that the Court okayed the three-drug lethal injection cocktail in Baze v. Rees, but left the door open to new challenges based on the possibility that more evidence of problems with the protocol for the cocktail’s administration, and/or how it is followed in particular states, could be submitted.

Respecting precedent also sometimes has the effect of driving Roberts and Alito into the arms of the liberals, as happened in the cases raising the issue of whether Section 1981 and the ADEA outlaw retaliation. In all likelihood, neither justice would have reached these results in the absence of past decisions pointing the way.

At least some of the liberals, for their part, seem willing in at least some contexts to give Roberts the greater consensus he seeks, in exchange for narrowing the scope of conservative victories. Pragmatically speaking, if the liberals are going to lose (which, on this Court, they often are), why not lose on the narrowest possible ground, even if the price is going along for the ride? The alternative may very well be to lose much more broadly, 5-4.

In this sense, at least some of the surprises of the term have sprung from a marriage of convenience. Yet as with many such marriages, one has to wonder -- especially with an election coming up that could result in dramatic change on the Court -- how long it is destined to last.

[Red Dog]

I'll also take this opportunity to recommend a great book I read last month.

The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom (http://www.amazon.com/Dirty-Dozen-Radically-Expanded-Government/dp/1595230505/ref=sr_1_1?ie=UTF8&s=books&qid=1201448908&sr=8-1) by Robert Levy & William Melor.

It's a relatively easy read that non-lawyers should be able to follow.

While I would have a picked a few alternate cases for the top-12 (although top-12 isn't quite accurate - it's actually the worst and a dishonorable mention in 12 areas of law), I certainly agree with most of their picks, and all 12 were at least wrongly decided. Granted, most of you would probably strongly agree with half of the cases and the rest of you the other half. ;)

[Thor Simpson]

I was promised by liberal fear mongers that my right to an abortion would be gone before Bush left office!

Why is the government staying out of my vagina!!!!

[Mordred]

While I would have a picked a few alternate cases for the top-12 (although top-12 isn't quite accurate - it's actually the worst and a dishonorable mention in 12 areas of law), I certainly agree with most of their picks, and all 12 were at least wrongly decided. Granted, most of you would probably strongly agree with half of the cases and the rest of you the other half. ;)So what you're saying is that we're all wrong and you're right? Very nice. Somebody outta write a law to prevent people like you from being so pompous.

[wendersfan]

Why is the government staying out of my vagina!!!!The Bureau of Printing and Engraving got lost down there in early March. I'm surprised you didn't notice.

[orangecrush]

So what you're saying is that we're all wrong and you're right? Very nice. Somebody outta write a law to prevent people like you from being so pompous.
Red's only right about legal matters. Try to keep up.

[Red Dog]

So what you're saying is that we're all wrong and you're right? Very nice. Somebody outta write a law to prevent people like you from being so pompous.


I've been around this forum long enough to know I'm right, particularly on this subject, and that most are wrong. :D

But read the book, comment, and lets discuss.

[wendersfan]

So what you're saying is that we're all wrong and you're right? Very nice. Somebody outta write a law to prevent people like you from being so pompous.There are those of us who are right and get perceived as being pompous. I'm not naming names, but...

;)

[JasonF]

Justices: Gitmo detainees can challenge detention in U.S. courts

WASHINGTON (CNN) -- Suspected terrorists and foreign fighters held by the U.S. military at Guantanamo Bay, Cuba, have the right to challenge their detention in federal court, the Supreme Court ruled Thursday.

The decision marked another legal blow to the Bush administration's war on terrorism policies.

In a 5-4 ruling, the justices said the U.S. military lacks the legal autonomy to prosecute as many as 300 prisoners.

At issue were the rights of the detainees to contest their imprisonment as well as the rules established to try them in military tribunals.

A congressional law passed in 2006 would limit court jurisdiction to hear such challenges.

It is a legal question the justices have tackled three times since 2004, including Thursday's ruling.

Each time the high court ruled against the government's claim that it has the authority to hold people it labels "enemy combatants."

http://www.cnn.com/2008/US/06/12/scotus/index.html

[Red Dog]

I'm a bit surprised. I'm assuming this is the typical 5-4 split. I wasn't sure which way Kennedy would swing on this one.

Here is the initial SCOTUSBLOG story:

Court gives detainees habeas rights
Thursday, June 12th, 2008 10:08 am | Lyle Denniston |

In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights. If Congress wishes to suspend habeas, it must do so only as the Constitution allows — when the country faces rebellion or invasion.

The Court stressed that it was not ruling that the detainees are entitled to be released — that is, entitled to have writs issued to end their confinement. That issue, it said, is left to the District Court judges who will be hearing the challenges. The Court also said that “we do not address whether the President has authority to detain” individuals during the war on terrorism, and hold them at the U.S. Naval base in Cuba; that, too, it said, is to be considered first by the District judges.

The Court also declared that detainees do not have to go through the special civilian court review process that Congress created in 2005, since that is not an adequate substitute for habeas rights. The Court refused to interpret the Detainee Treatment Act — as the Bush Administration had suggested — to include enough legal protection to make it an adequate replacement for habeas. Congress, it concluded, unconstitutionally suspended the writ in enacting that Act.

In a second ruling on habeas, the Court decided unanimously that U.S. citizens held by U.S. military forces in Iraq have a right to file habeas cases, because it does extend to them, but it went on to rule that federal judges do not have any authority to bar the transfer of those individuals to Iraqi authorites to face prosecution or punishment for crimes committed in that country in violation of Iraqi laws.



Opinion here:
http://www.scotusblog.com/wp/wp-content/uploads/2008/06/06-1195.pdf

[orangecrush]

I'm a bit surprised. I'm assuming this is the typical 5-4 split. I wasn't sure which way Kennedy would swing on this one.

Here is the initial SCOTUSBLOG story:

Opinion here:
http://www.scotusblog.com/wp/wp-content/uploads/2008/06/06-1195.pdf
So, what does this mean to the frightened American wanting these detaines to not "have the same rights as Americans"?

[Red Dog]

I don't know what it means to the frightened American but it could mean the end of Gitmo. I've only briefly skimmed the headnotes of the opinion but it seems that US sovreignty over Gitmo played a big role in this decision.

[X]

The decision, while helping the local economy of the legal profession for a short time, probably means a greater outflow of dollars from the U.S. as we pay other countries to house the prisoners from Gitmo.

[CRM114]

The decision, while helping the local economy of the legal profession for a short time, probably means a greater outflow of dollars from the U.S. as we pay other countries to house the prisoners from Gitmo.

Why do you assume it will cost more than operating Gitmo?

At any rate, this is one of those financial costs of waging war that the country will be paying for many years.

[JasonF]

I'm a bit surprised. I'm assuming this is the typical 5-4 split. I wasn't sure which way Kennedy would swing on this one.

Looks that way:

KENNEDY, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concurring
opinion, in which GINSBURG and BREYER, JJ., joined. ROBERTS,
C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO,
JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS,
C. J., and THOMAS and ALITO, JJ., joined.

[kvrdave]

No, this will end us holding prisoners. -wink-

Change of venue for the prison. That will make people feel better if they don't have to hear about it, and the others can still speak out against double secret probabtion prisons, etc. win/win.

[mosquitobite]

No, this will end us holding prisoners. -wink-

Change of venue for the prison. That will make people feel better if they don't have to hear about it, and the others can still speak out against double secret probabtion prisons, etc. win/win.

:lol:

RedDog, what basis are Scalia and Thomas using for their dissent?

[JasonF]

:lol:

RedDog, what basis are Scalia and Thomas using for their dissent?

My problem with today’s opinion is more fundamental still: The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires.

Personally, I think that whenever the U.S. government is detaining someone, the right of habeas should apply.

[kvrdave]

Personally, I think that whenever the U.S. government is detaining someone, the right of habeas should apply.

I tend to agree with that principle, but I don't think I could make the case legally. That is the only part that surprises me a bit.

[X]

Personally, I think that whenever the U.S. government is detaining someone, the right of habeas should apply.Does that include when the U.S. military is detaining someone?

[mosquitobite]

Does that include when the U.S. military is detaining someone?

Perhaps it would depend on if war was actually declared?

[Red Dog]

Looks like Scalia is disagreeing with what constitutes "abroad;" the issue I alluded to before.

[Red Dog]

Personally, I think that whenever the U.S. government is detaining someone, the right of habeas should apply.


I assume you don't mean that for traditional battlefield captured POWs.

[X]

Perhaps it would depend on if war was actually declared?I don't know.

[JasonF]

I assume you don't mean that for traditional battlefield captured POWs.

I don't think they're entitled to a criminal-court style habeas proceeding, but I think they are entitled to some sort of habeas proceeding. Quite frankly, it's trivial: "You are being detained by the United States army because you were captured on the battlefield during our conflict with Freedonia while wearing the uniform of the Freedonian army. Pursuant to applicable international treaties, you will be detained until the cessation of that conflict."

[aktick]

I don't know much about Constitutional law or whatever you want to call it, but doesn't this have the potential to open up a whole new can of worms? What's the next Constitutional right they'll be looking for? If these detainees will get a Federally judged trial, shouldn't US soldiers be offered the same right?

Just curious, as I really don't know enough to have an opinion one way or another. :p

[CRM114]

I don't know much about Constitutional law or whatever you want to call it, but doesn't this have the potential to open up a whole new can of worms? What's the next Constitutional right they'll be looking for? If these detainees will get a Federally judged trial, shouldn't US soldiers be offered the same right?

Just curious, as I really don't know enough to have an opinion one way or another. :p

I -think- we could just call them Prisoners of War and follow the Geneva Conventions, right? This whole Gitmo/enemy combatants thing was just to imprison them forever with no rights and ride the fine line of torture.

[mosquitobite]

I think it'll just mean more of them are shot on the battlefield instead of being imprisoned. And like Dave said, we'll just send the prisoners to an allied country that can torture without worry of civil/judicial oversight. :shrug:

The decision is for sure a win against neo-con thinking, but I don't think the results are going to be better than Gitmo. :shrug:

[CRM114]

I think it'll just mean more of them are shot on the battlefield instead of being imprisoned. And like Dave said, we'll just send the prisoners to an allied country that can torture without worry of civil/judicial oversight. :shrug:

The decision is for sure a win against neo-con thinking, but I don't think the results are going to be better than Gitmo. :shrug:

Hooray for torture!

[mosquitobite]

Hooray for torture!

If you meant that towards me, I'm happy with the decision. Perhaps you didn't read my rants on the CPS thread :p

But just like in so many areas of life that the government gets involved with, I do believe this decision will have unintended consequences. :shrug:

My reasons for being ok with the decision aren't because I feel sorry for some enemy combatant, but because I am against an undeclared war with a runaway executive branch. So although I agree with the decision, don't think it's because I suddenly grew a heart. :lol:

[CRM114]

But you are ok with "runaway" military power and torture?

[mosquitobite]

But you are ok with "runaway" military power and torture?

WTH? Did you not read my post? In my book military power = executive power since the POTUS is the commander.

I may not care about the prisoner, but I do care about the checks and balances set up within our Constitution.

[CRM114]

WTH? Did you not read my post? In my book military power = executive power since the POTUS is the commander.

I may not care about the prisoner, but I do care about the checks and balances set up within our Constitution.

Yes, I did. I was responding to the flippant phrase: "we'll just send the prisoners to an allied country that can torture without worry of civil/judicial oversight" as if this is acceptable.

[wmansir]

My reasons for being ok with the decision aren't because I feel sorry for some enemy combatant, but because I am against an undeclared war with a runaway executive branch.
This was hardly a case of a "runaway executive branch". The administration was acting with the full authority of Congress in this case.

[Red Dog]

No major decisions released today; one on bankruptcy and one on immigration removal procedure. Next opinion release day is Thursday.

They did grant cert Ashcroft v. Iqbal, et al.. That should be a good one. From SCOTUSBLOG:
The Supreme Court agreed on Monday to spell out when members of the President’s Cabinet and other high federal officials may be sued for constitutional violations by their subordinates. The case grows out of a lawsuit against former Attorney General John D. Ashcroft and current FBI director Robertueller, and others, based on official actions during the roundup of men of Arab descent or identified with the Muslim faith, following the terrorists attacks on Sept. 11, 2001.

[wendersfan]

I may not care about the prisonerWhy should you? It's not like they're Christians or Americans or anything.

[Red Dog]

A belated Happy Birthday to Justice Thomas. His birthday was Monday. I'm sure it will bring great comfort to all that, with nearly 2 decades of service on the Court, he is still only 60. :)

The opinions for the remaining cases in the term, which includes the big ones on guns (http://forum.dvdtalk.com/showthread.php?t=494805) and the death penalty-for child rape (http://forum.dvdtalk.com/showthread.php?t=501500&highlight=louisiana) are expected to be handed down tomorrow and Thursday.

[classicman2]

Speaking of the justices - I saw Breyer (once again) at a public forum on CSPAN yesterday. I believe the event was held 3-4 days ago.

Would you say Justice Breyer is a news hog?

btw: I believe he had the hots for Sandra Day O'Connor. What do you think? ;)

[Red Dog]

I think I don't want that image in my mind.

[classicman2]

You'll have to admit - Breyer is a pleasant sort.

[Red Dog]

This is a good piece (not including the Constitution-in-Exile nonsensical comment on Thomas) by Jeffrey Rosen in TNR about how the Chief Justice isn't the boogeyman that many liberals thought he would be and how they probably should be relatively happy with that selection. It echoes some things I've said about the Chief, and goes along with my prediction of what Roberts' vote would be to overturn that all-important case to everyone - nay. As a reminder, I wasn't a fan of the Roberts appointment from day 1. Sure, I think he deserved confirmation but I knew that he would not be a Thomas or even a Scalia. I predicted he would be more like Rehnquist, and one could reasonably argue that he isn't even that far to the right.

http://www.tnr.com/story.html?id=08bf58e7-db39-46d9-942c-ea471ad63ea0&p=1

Narrow Minded
John Roberts does Obama a favor.

Jeffrey Rosen, The New Republic Published: Wednesday, July 09, 2008

In 2006, at the end of his first term on the Supreme Court, John Roberts told me and other journalists that his goal as chief justice would be to promote unanimity and collegiality by encouraging his fellow justices to converge around narrow decisions with few dissents. During his first term, Roberts succeeded impressively: More than half of the Court's opinions were unanimous, and only 13 percent were decided by a 5-4 vote.

The polarized Supreme Court term that ended last June, however, looked very different. Only 38 percent of the Court's decisions were unanimous, and 33 percent were decided 5-4, the highest percentage in recent years. Moreover, in cases striking down affirmative action and campaign finance reform, Roberts and his dissenting colleagues attacked each other in unusually personal terms. Noting this, some liberal bloggers and journalists argued that Roberts's call for unanimity had been a charade. Emily Bazelon of Slate wrote that Roberts didn't actually care about "unity and restraint" and that he would become only more extreme over time.

Bazelon's judgment was premature. Although this Supreme Court term isn't over, it's already shaping up to be something of a bipartisan lovefest. "Where have all the 5-4 decisions gone?" asks Linda Greenhouse of The New York Times. As of this writing, nearly 40 percent of this term's decisions were unanimous, and only 14 percent were decided by 5-4 splits. Even more tellingly, some of the term's more controversial decisions--including those involving lethal injections, voter identification laws, federal efforts to curb child pornography, and Iraqi detentions--were unanimous or decided by lopsided, bipartisan majorities. True, there have been a handful of high-profile 5-4 decisions along familiar ideological lines, such as the case extending the writ of habeas corpus to inmates at Guantanamo Bay--and there may well be more in the final weeks of the term--but they have been the exception, not the rule.

It's still too early to judge Roberts's tenure, but it seems increasingly clear that liberals dodged a bullet when President Bush nominated him to be chief justice. Instead of siding with conservative extremists like Clarence Thomas, who are eager to press the limits of the so-called Constitution in Exile, resurrecting limits on federal power whenever possible, Roberts prefers narrow opinions that can attract support from the center. Liberals ought to applaud this instinct because, even if Barack Obama gets to appoint the next justice or two, it's the only thing standing between them and a Court eager to roll back progressive reforms.

Why was Roberts successful in uniting the Court this year? Part of the reason, as Orin Kerr of George Washington University recently observed, is that he has done exactly what he said he would do in 2006: namely, convince moderate liberals and conservatives that unanimity is in their interest. In particular, Roberts has been more willing than his predecessor to assign plurality (rather than majority) opinions. In these cases, Roberts begins with the three center-right conservatives (himself, Anthony Kennedy, and Samuel Alito) and tries to attract liberal justices to a narrowly reasoned decision, while letting the hard-line conservatives (Thomas and Antonin Scalia) write separate, more extreme concurrences. In cases with no majority opinion, the narrowest opinion for the winning side has to be followed as if it were the majority opinion. Roberts has followed this strategy--finding a "sweet spot," as Kerr puts it, by "aiming toward the middle"--in the recent 7-2 and 6-3 cases upholding lethal injections and voter ID requirements. In both cases, the Court issued a moderately conservative controlling opinion joined by one or two liberal justices, followed by more extreme concurrences by Scalia and Thomas.

Roberts has also promoted unanimity by encouraging the Court to hear more business cases, in which the justices tend not to divide along ideological lines. Roberts told me that unanimity in less high-profile cases could promote "a culture and an ethos that says, 'It's good when we're all together,'" and that's exactly what the business cases--which represent about 45 percent of the court's docket this year--have achieved.

Out of 14 cases in which the U.S. Chamber of Commerce filed briefs this year, 86 percent have already been decided by margins of 7-2 or better and over one-third have been unanimous. During a TNR town-hall interview in March, Justice Stephen Breyer explained that cases involving the interpretation of federal statutes were often less divisive than constitutional cases because they turn on more technical questions about which the justices don't have strong pre-existing views. He also said that when a decision was nearly unanimous, he was inclined to think: "Maybe that was the right answer!"

In cases where the justices do have strong constitutional views, such as the decision last week involving habeas corpus at Guantanamo, the familiar 5-4 ideological divisions persist. But, even in the Guantanamo case, Roberts dissented from the majority opinion in far more measured terms than he had used to criticize Breyer's dissent in the affirmative action case last year. Avoiding Scalia's hysterical claim that this decision "will almost certainly cause more Americans to be killed"--an assertion unsupported by anything in the government's brief--Roberts respectfully argued that the liberal justices themselves had previously suggested that Congress, rather than the courts, should decide detention policy. Similarly, Justice John Paul Stevens's willingness to side with the moderate conservatives in the voter ID, lethal injection, and child pornography cases suggests that he, too, has concluded that constructive engagement is better than 5-4 polarization when a narrowly reasoned opinion may leave the door open for liberal victories down the road.

In their eagerness to dismiss Roberts as a hypocrite, liberal critics have suggested that it doesn't matter whether conservative opinions are based on narrow or broad reasoning; all that matters is the bottom line. But this judgment, too, is shortsighted. Even if Obama wins the White House and has the opportunity to replace one or two retiring liberal justices, the Court's ideological makeup is likely to stay the same for the foreseeable future: four liberals and four conservatives, with Kennedy in the middle. If Roberts succeeds in promoting narrow, bipartisan opinions, the Court is unlikely to resurrect the Constitution in Exile and declare war on a progressive Congress for the first time since the New Deal era. By contrast, if Roberts fails and the Court gets in the habit of handing down sweeping conservative opinions by polarized 5-4 majorities, many of the health care and environmental reforms that progressives hope for from a Democratic president and Congress might be struck down by the Court.

As Larry Kramer, the dean of Stanford Law School, puts it, "Once solidly in power, Democrats are more likely to push the envelope in areas like the environment and health," rather than civil liberties, and a conservative court could push back by holding that Congress lacks the power to regulate matters previously left to the private sector. For example, according to Damon Silvers, associate general counsel for the AFL-CIO: "Legislation requiring employers to purchase health insurance for their employees could be challenged by arguments asserting the Constitution includes an unwritten guarantee of freedom of contract that would allow private parties to enter into employment contracts without health insurance." Going forward, Silvers told me, "[t]ax policies and regulations seeking to limit the use of carbon-based fuels could be challenged as a taking of someone's mineral rights." Although Thomas might be sympathetic to these arguments, he and Scalia would remain on the Court's conservative fringe in an Obama administration--but only if Roberts continues to promote narrow opinions that appeal to the center.

The presidential election, of course, will determine the future of the Roberts Court. If McCain wins, there will be a lopsided conservative majority, and Roberts will no longer need to win over the one or two liberal justices on the margins. But, if Obama wins, Roberts's success in promoting his vision of unity and minimalism will determine whether the Court blocks a Democratic Congress and White House or whether it lets them pass the laws that the American people expect.

[wendersfan]

http://www.tnr.com/story.html?id=08bf58e7-db39-46d9-942c-ea471ad63ea0&p=1
Part of me is appalled that we can speak of partisanship or bipartisanship when it comes to SCOTUS. They other part is far more cynical, but still... Nice article. TNR - :up:

[Red Dog]

- Punitive damages in the Exxon Valdez oil spill. Exxon Mobil Corp. is fighting a $2.5 billion judgment for the environmental disaster in Alaska 19 years ago that ensued after the supertanker ran aground on a reef. Exxon v. Baker


Exxon decision in....8-0 (Alito recused) with various concurrences - Souter wrote the lead opinion.

the [lower court] judgment is vacated and remanded. The Court divided depending on the issues. The Court divided equally on whether maritime law permits punitives for the acts of agents (Alito not participating). The Court deemed the punitives excessive based on maritime common law, holding the punitives should be equal to the compensatories.

the Court holds that the punitives are limited to $507.5 million. (this part was 5-3)

[Red Dog]

- Death penalty for raping a child. A man on death row for raping his 8-year-old stepdaughter is challenging a Louisiana law allowing the death penalty for the crime, even when it does not include the death of the victim. The last execution for a crime that did not also include murder was more than 40 years ago and the court outlawed the death penalty for raping an adult woman in 1977. Kennedy v. Louisiana


Opinion in.....5-4 (on traditional ideological lines) authored by Justice Kennedy
The Kennedy v. LA decision holds the death penalty is forbidden for crimes against individuals that do not result in death.


Specific thread for the Kennedy case here:
http://forum.dvdtalk.com/showthread.php?p=8769918#post8769918

[Red Dog]

Opinions:

Exxon v. Baker (http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-219.pdf)

Kennedy v. Louisiana (http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-343.pdf)

[Red Dog]

No Heller (guns guns guns) decision today. Saving the best for last tomorrow.

[Red Dog]

http://www.washingtonpost.com/wp-dyn/content/article/2008/06/25/AR2008062500663.html?hpid=topnews

Court slashes judgment in Exxon Valdez disaster

By PETE YOST
The Associated Press
Wednesday, June 25, 2008; 11:16 AM

WASHINGTON -- The Supreme Court on Wednesday slashed the $2.5 billion punitive damages award in the 1989 Exxon Valdez disaster to $500 million.

The court ruled that victims of the worst oil spill in U.S. history may collect punitive damages from Exxon Mobil Corp., but not as much as a federal appeals court determined.

Justice David Souter wrote for the court that punitive damages may not exceed what the company already paid to compensate victims for economic losses, about $500 million compensation.

Souter said a penalty should be "reasonably predictable" in its severity.

Exxon asked the high court to reject the punitive damages judgment, saying it already has spent $3.4 billion in response to the accident that fouled 1,200 miles of Alaska coastline.

A jury decided Exxon should pay $5 billion in punitive damages. A federal appeals court cut that verdict in half in 1994.

The Supreme Court divided on its decision, 5-3, with Justice Samuel Alito taking no part in the case because he owns Exxon stock.

Exxon has fought vigorously to reduce or erase the punitive damages verdict by a jury in Alaska four years ago for the accident that dumped 11 million gallons of oil into Prince William Sound. The environmental disaster led to the deaths of hundreds of thousands of seabirds and marine animals.

Nearly 33,000 Alaskans are in line to share in the award, about $15,000 a person. They would have collected $75,000 each under the $2.5 billion judgment.

In dissent, Justice John Paul Stevens supported the $2.5 billion figure for punitive damages, saying Congress has chosen not to impose restrictions in such circumstances.

Justice Ruth Bader Ginsburg also dissented, saying the court was engaging in "lawmaking" by concluding that punitive damages may not exceed what the company already paid to compensate victims for economic losses.

"The new law made by the court should have been left to Congress," wrote Ginsburg. Justice Stephen Breyer made a similar point, opposing a rigid 1 to 1 ratio of punitive damages to victim compensation.

Writing for the majority, Souter said that traditionally, courts have accepted primary responsibility for reviewing punitive damages and "it is hard to see how the judiciary can wash its hands" of the problem by pointing to Congress for a solution.

A jury decided that the company should pay $5 billion in punitive damages. A federal appeals court cut that verdict in half.

The problem for the people, businesses and governments who waged the lengthy legal fight against Exxon is that the Supreme Court in recent years has become more receptive to limiting punitive damages awards. The Exxon Valdez case differs from the others in that it involves issues peculiar to laws governing accidents on the water.

Overall, Exxon has paid $3.4 billion in fines, penalties, cleanup costs, claims and other expenses resulting from the worst oil spill in U.S. history.

The commercial fishermen, Native Alaskans, landowners, businesses and local governments involved in the lawsuit have each received about $15,000 so far "for having their lives and livelihood destroyed and haven't received a dime of emotional-distress damages," their Supreme Court lawyer, Jeffrey Fisher, said when the court heard arguments in February.

[mosquitobite]

I love the irony of the liberal justices complaining that the court was "making law" rotfl
In dissent, Justice John Paul Stevens supported the $2.5 billion figure for punitive damages, saying Congress has chosen not to impose restrictions in such circumstances.

Justice Ruth Bader Ginsburg also dissented, saying the court was engaging in "lawmaking" by concluding that punitive damages may not exceed what the company already paid to compensate victims for economic losses.

[classicman2]

I love the irony of the liberal justices complaining that the court was "making law" rotfl

Supreme Court Justices have no shame. ;)

[classicman2]

If Obama is elected President, how long do you'll believe it will be before both Stevens & Ginsgurg resign?

I would say about 2 days.

[Red Dog]

They would announce their resignations about this time next year.

[classicman2]

Then the fight would be on in the U.S. Senate.

I wonder if the Gang of 14 will hold together?

[Red Dog]

It would be stupid to have a fight over those 2 vacancies under Obama, but I suppose that would probably happen.

[Red Dog]

SCOTUSBLOG analysis of the Exxon decision:

Analysis: A new day on punitive damages law
Wednesday, June 25th, 2008 1:51 pm | Lyle Denniston |

Analysis

Conspicuous in the Supreme Court’s lengthy and scholarly review Wednesday of the role punitive damages verdicts play in punishing serious wrongdoing, especially by big corporations, there is this crucially significant statement: “The real problem, it seems, is the stark unpredictability of punitive awards.” And, for that problem, the Court has found a simple, easy-to-use solution: a low numerical ratio between the damages awarded to compensate for actual loss or harm and the damages awarded on top of that to punish or to make an example of the wrongdoer. In the case before it Wednesday, the Court set the ratio at 1-to-1. That approach provides a rule-of-thumb that may well guide the Court as it looks, in the future, at a wide array of punitive verdicts.

It is necessary, in examining what the Court has done in Exxon Shipping Co. v. Baker (07-219), the celebrated case of the Exxon Valdez’s oil spill in Alaskan waters 19 years ago, to acknowledge that this is not a constitutional ruling, that it is only about the Court’s common-law powers, and that it arises only in the context of law governing maritime commerce. But to look at it only in those narrow terms is to miss the signal that the Court is giving — that is, it has grown highly skeptical that it can spell out, in words rather than numbers, workable guidelines that could bring some sense — some consistency — to punitive damages awards.

For years, the Court has had on display its prevailing view that punitive damage awards in the modern era have gotten out of control. It has undertaken, under the Constitution’s Due Process Clause, to lay down a number of verbal standards that supposedly could keep juries in check when they ponder punitive verdicts. But, try as it might, its efforts have not achieved that objective; year after year, corporations return again and again to the Court, arguing anew that juries and some lower courts don’t get it, that the problem of punitives is not getting solved.


In Justice David H. Souter’s long and detailed opinion in Exxon Shipping, the Court makes clear that it has not seen convincing evidence that juries are acting in runaway fashion, or that the actual dollar amounts of punitive awards are far too high. It homes in on the central problem it sees: “stark unpredictability,” which it perceives as an indication that maybe the process is not fair because of its inconsistency.

That comes in a part of the opinion where the Court was examining punitive damages in a much wider context than merely maritime law, or federal common law. Poring over the options it sees for dealing with the unpredictability phenomenon, it finds that “verbal formulations” of punitive damages limits have not worked to produce consistency. The Court says explicitly that it is “doubtful that anything but a quantified approach will work.” It expresses its concern over those trying to manage a system without numerical guidelines being”left at large, wandering in deserts of uncharted discretion.”

It then turns to alternatives for a verbal approach: a hard dollar ceiling on any punitive award, or “pegging punitive to compensatory damages using a ratio or maximum multiple.” And, since it is operating in the Exxon Shipping case as a common-law court, unguided by constitutional or statutory mandates, it is free to choose which of those alternatives to apply in the maritime context. It chooses the ratio approach, and settles here on the 1-to-1. (It should be noted, as a matter of caution, that this particular 1-to-1 gauge is chosen in a case where corporate behavior was found to be more reckless than malicious, and where there was a sizable compensatory verdict; a somewhat higher ratio — but still a number — might be appropriate without those two factors in a future case.)

Justice Souter’s opinion goes on to reject the suggestion that the Court, in so choosing, is engaging too much in policy and too little in principle. The opinion comments: “Traditionally, courts have accepted primary responsibility for reviewing punitive damages and thus for their evolution, and if, in the absence of legislation, judicially derived standards leave the door open to outlier punitive-damages awards, it is hard to see how the judiciary can wash its hands of a problem it created, simply by calling quantified standards leigslative….History certainly is no support for the notion that judges cannot use numbers.”

Since it is the Court that decides constitutional standards, perhaps the same sentiments as expressed by Justice Souter might apply in that context, too. If so, t hose makingfuture Due Process claims against punitive awards might well suggest that there is merit to going to the numerical approach there, too. True, Justice Souter does say, at one point, that the Court was reaching for “more rigorous standards” in the maritime/common law arena than the Constitution would require, that may not mean that the Court, in time, would find that using the numbers is a better alternative than the verbal formulations the Court has laid down in judging the constitutionality of punitive verdicts.

What’s more, in a final footnote in the opinion, Justice Souter suggests, even in the Exxon Shipping context, “the constitutional outer limit may well be 1:1.”

It hardly will be a surprise if lawyers for corporations facing large punitive awards will find ways to cite Exxon Shipping as persuasive authority for adopting the numbers approach as a workable formula under the Constitution.

[classicman2]

I certainly believe that there are Republicans who will fight any nomination made by Obama, or any Democrat for that matter.

If the gang of 14 doesn't hold together, I wonder if the Democrats will consider using the 'nuclear option?'

[Red Dog]

Term (in stats form) roundup:
http://www.scotusblog.com/wp/wp-content/uploads/2008/06/superstatpackot07.pdf

Of note:
- This term featured the least number by pct of 5-4 cases since OT97.
- It had the least number of decisions on the merits since OT53!
- Kennedy and Thomas were in the majority of 5-4 decisions the most (8 each).
- In 5-4 decisions where the liberal bloc won, they needed Kennedy in each decision. In 5-4 decisions where the conservative bloc won, there were 2 decisions where Kennedy was not the 5th vote.
- Roberts and Scalia had the highest agreement rate: 88%, with Souter/Ginsburg close behind at 87%.
- Roberts had the highest rate of being on the winning side: 90%.

[kvrdave]

If the gang of 14 doesn't hold together, I wonder if the Democrats will consider using the 'nuclear option?'

I was surprised the Republicans didn't use. I would be more surprised if the Democrats didn't use it.

[classicman2]

I wasn't suprised that the Repubs didn't use it.

I would be surprised if the Democrats tried it.

[Red Dog]

In the less sexy opinion handed down today, the Court chipped away at the BCRA (McCain-Feingold) again, ruling that the "Millionaires Amendment" was unconstitutional.

[orangecrush]

I certainly believe that there are Republicans who will fight any nomination made by Obama, or any Democrat for that matter.

If the gang of 14 doesn't hold together, I wonder if the Democrats will consider using the 'nuclear option?'
Why do you think Republicans will fight any nomination? They didn't fight Clinton's picks that vigorously.

[orangecrush]

Term (in stats form) roundup:
http://www.scotusblog.com/wp/wp-content/uploads/2008/06/superstatpackot07.pdf

Of note:
- This term featured the least number by pct of 5-4 cases since OT97.
- It had the least number of decisions on the merits since OT53!
- Kennedy and Thomas were in the majority of 5-4 decisions the most (8 each).
- In 5-4 decisions where the liberal bloc won, they needed Kennedy in each decision. In 5-4 decisions where the conservative bloc won, there were 2 decisions where Kennedy was not the 5th vote.
- Roberts and Scalia had the highest agreement rate: 88%, with Souter/Ginsburg close behind at 87%.
- Roberts had the highest rate of being on the winning side: 90%.
There was an editorial in the WSJ the other day about Roberts the uniter. I will try to find it.
edit: I could not find it.

[crazyronin]

I'll also take this opportunity to recommend a great book I read last month.

The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom (http://www.amazon.com/Dirty-Dozen-Radically-Expanded-Government/dp/1595230505/ref=sr_1_1?ie=UTF8&s=books&qid=1201448908&sr=8-1) by Robert Levy & William Melor.

It's a relatively easy read that non-lawyers should be able to follow.

While I would have a picked a few alternate cases for the top-12 (although top-12 isn't quite accurate - it's actually the worst and a dishonorable mention in 12 areas of law), I certainly agree with most of their picks, and all 12 were at least wrongly decided. Granted, most of you would probably strongly agree with half of the cases and the rest of you the other half. ;)


\Picked this up for a cross country flight. Looking forward to reading it. Right now, I'm wondering if it would make an effective cudgel to beat some teenagers senseless.

[Red Dog]

What the hell is David Broder talking about here? Yes, there is no doubt that Kennedy is the most important Justice on the Court and that this is effectively the Kennedy Court, but the Kennedy appointment "turned out to be successful beyond Reagan's wildest dreams?" Are you kidding me? :hscratch:

http://www.washingtonpost.com/wp-dyn/content/article/2008/07/04/AR2008070402090_pf.html

Decider on the High Court

By David S. Broder
Sunday, July 6, 2008; B07

The most dramatic stories in any field of competitive endeavor are those that recount events that almost never happened. It's the scoreless ballgames that end with a walk-off homer in the bottom of the ninth that linger in the psyches of winners and losers -- not the 9-3 walkovers.

So it is in politics and government. Al Gore's loss to George W. Bush gnaws at Democrats because he came so close -- a few hundred more votes in Florida or a couple of thousand in New Hampshire, and history would be different.

I've been thinking the past couple of weeks about another close call that converted a seeming loser, a quiet California lawyer, into what may arguably be the single most influential arbiter of domestic policy in the land.

I am talking about Supreme Court Justice Anthony Kennedy.

Kennedy is an accident of history. A graduate of Stanford and Harvard Law School, the son of a popular Sacramento lobbyist, he was practicing in that city when, in 1975, California Gov. Ronald Reagan suggested his name to President Jerry Ford for a vacancy on the U.S. Court of Appeals for the Ninth Circuit.

Kennedy was in his 12th year in a low-profile position there when the resignation of Justice Lewis Powell from the Supreme Court launched a titanic struggle. Reagan, by then president, wanted to move the court to the right and thought he had found the ideal nominee in Judge Robert Bork. But Senate Democrats launched an all-out war against the nomination and -- with some help from the argumentative Bork -- succeeded in denying him confirmation.

Then came a fight within the administration, with White House Chief of Staff Howard Baker, a supporter of Kennedy, being outmuscled by Attorney General Edwin Meese, who favored another circuit judge, Douglas Ginsburg. But the Ginsburg nomination died quickly when he admitted to having used marijuana.

It was only then -- after that implausible scenario -- that third-choice Kennedy was called to the White House and introduced by Reagan as his man.

It turned out to be successful beyond Reagan's wildest dreams.

In his almost 21 years on the high court, Kennedy has pursued a generally conservative course, but he has deviated often enough to avoid ideological labeling. In recent years, and especially since the retirement of another moderate conservative, Justice Sandra Day O'Connor, Kennedy has emerged as the swing vote between well-defined blocs of four confirmed liberals and four staunch conservatives. So often does his vote decide the majority in 5 to 4 decisions that this has been correctly called "the Kennedy court."

Thus, the man who was the compromise choice for the Supreme Court has turned out to be its single most influential member.

What is more remarkable is the fact that he has done so by fulfilling the expectations that Reagan and others had for him from the start. Many presidents have learned to rue their picks for the high court. John Kennedy thought he was getting a liberal in Byron "Whizzer" White. George H.W. Bush thought David Souter would be a conservative. Both were wrong.

But Kennedy was exactly what Reagan thought -- "a true conservative" and "a courageous, tough, but fair" jurist.

The 1987 edition of the Almanac of the Federal Judiciary went further, describing Kennedy as "courteous, stern on the bench, somewhat conservative, bright, well-prepared, filled with nervous energy, asks many questions, good analytical mind, not afraid to break new ground, open-minded, good business lawyer, hard to peg, an enigma, tends to agonize over opinions."

None of those terms need revision 21 years later.

Because of these traits -- and the close balance between the ideological blocs -- Kennedy has had more influence on domestic affairs than any member of Congress -- and even more than the president. In the term just ended, he wrote the 5 to 4 opinions that limited the death penalty to cases of murder and that granted terrorism suspects access to the federal courts. He was also the swing vote on the decisions that struck down the District of Columbia's ban on handguns and killed the provision of the McCain-Feingold campaign finance law benefiting candidates opposing self-financed millionaires.

In 2006 and 2007, Kennedy played the same central role in cases ranging from military commissions for detainees to gay rights, from abortion to police powers, from environmental regulation to affirmative action.

"There's nowhere else to go," Northwestern law professor Lee Epstein once told The Post. "There is this giant hurdle called Kennedy."

Not bad for a third choice.



:confused:

[classicman2]

http://news.yahoo.com/s/ap/scotus_ginsburg


WASHINGTON – Supreme Court Justice Ruth Bader Ginsburg had surgery Thursday after being diagnosed with pancreatic cancer, the court said.

Ginsburg, 75, had the surgery at the Memorial Sloan-Kettering Cancer Center in New York. She will remain in the hospital for seven to 10 days, said her surgeon, Dr. Murray Brennan, according to a release issued by the court.

The court announcement said the cancer is apparently in the early stages.

In 1999, Ginsburg had surgery for colon cancer and had chemotherapy and radiation treatment. The only woman on the court, she has been a justice since 1993.

The pancreatic cancer was discovered during a routine, annual exam late last month at the National Institutes of Health in Bethesda, Md.

A CAT scan revealed a tumor measuring about 1 centimeter across the center of the pancreas, the court said.

Pancreatic cancer is one of the most deadly cancers: Nearly 38,000 cases a year are diagnosed and overall, fewer than 5 percent survive

[JasonF]

Wow. I hope Justice Ginsburg is one of the lucky ones, but as classicman's article points out, pancreatic cancer does not have a good prognosis.

[classicman2]

I believe it was a given that she was going retire anyway.

I hope she's one of the very few that survive this terrible disease.

[wmansir]

With all the nomination talk earlier this month I was waiting for this topic to get bumped to discuss which justices were going to retire now that a dem is in the office. I was saddened to see the reason it was bumped today.

[wishbone]

At this point the question is was the cancer caught early enough or not. Hopefully Justice Ginsburg will be one of the luckier ones with the terrible disease as classicman pointed out.

[kvrdave]

At this point the question is was the cancer caught early enough or not. Hopefully Justice Ginsburg will be one of the luckier ones with the terrible disease as classicman pointed out.


Yeah. The people that I have known that had it and died, didn't go to the doctor until they had serious problems. They just didn't recognize what they felt as possibly being cancer, etc., which is easy to understand. Given that this was caught before she had any symptoms and was only 1 cm big, I sure hope she is okay. That part makes me want to be optimistic, but then you see the 5% statistic and it is hard to be.

Really hope she beats it. No one should go that way.

[wishbone]

Yeah. The people that I have known that had it and died, didn't go to the doctor until they had serious problems.This happened to a friend of the family. She did not have symptoms until the advanced stages. She passed about six months after her diagnosis. I miss her. :(

[Red Dog]

She was already near the top of the potential retirement list. This might hasten it. I wouldn't be surprised if she and Souter retire at the end of the term. Souter hasn't hired law clerks for next term and all the others have already. That's not necessarily a tell, but it's something to keep an eye on.

[classicman2]

How about John Paul Stevens?

He stormed San Juan Hill with Teddy. ;)

[Red Dog]

Not yet. Maybe next summer.

[Jason]

How about John Paul Stevens?

He stormed San Juan Hill with Teddy. ;)

And I thought he had stated he was just trying to hang on until 1/20/09.

Obama getting three SCOTUS picks will make the freepers heads asplode.

[Red Dog]

From SCOTUSBLOG:

Call Off The RBG Retirement Watch, Before It Starts
Thursday, February 5th, 2009 3:17 pm | Tom Goldstein

Today’s news that Justice Ginsburg has undergone surgery for pancreatic cancer is obviously serious. It is a bad disease.

But this story is likely to be blown dramatically out of proportion for several reasons. The average five-year survival rate for this disease is very low. Justice Ginsburg is – compared to the general population – relatively elderly. She had a previous bout of cancer. And the arrival of a new Administration ties in with speculation about new appointments.

But those points have very little to do with the reality of what this means for Justice Ginsburg and the Court. Average survival rates for pancreatic cancer are skewed dramatically by the nature of the disease, which is reasonably asymptomatic in its early and middle stages. If you have it, you generally don’t know it.

But here, Justice Ginsburg got – and this is an odd phrase to use here – very, very lucky. As the statement released by the Court says – and I expect that it was quite pointed in doing so – this cancer was apparently discovered early in a routine exam – routine, that is, for someone who has very good medical care. Someone else might never have such an exam and as a consequence not find out about this cancer until it was essentially too late.

But in the relatively rarer case in which you do identify pancreatic cancer in time, and successfully remove it by surgery, the odds of recovery are vastly higher. What the public does not know – and I expect that the Justice herself may not know because the surgery was only today – is whether the intervention occurred before the cancer spread.

Though it’s an unknown, I do think there is real cause for optimism. The size of the tumor suggests that the cancer was caught very early. The statement released by the Court is relatively open – more so than is often the true with that institution. The degree of disclosure reflects a personal choice by the Justice herself, and it reflects her attitude towards the public. If her doctors had found the cancer had spread before the surgery, which surely they tried to do, I don’t think she would have released a statement saying that it was found “early.”

It’s also essential not to let the Justice’s earlier bout with cancer cloud our sense of this surgery. The two don’t have anything to do with each other. Her earlier cancer – as a result of which she did not miss a day of Court – was cured and did not cause this.

The Justice’s age may slow her recovery. That’s natural. But this is an individual of surpassing toughness. She has been through cancer before. Her family has been through it and knows how to support her. To be honest, Justice Ginsburg can be mistaken as looking a bit frail, but it really is a mistake to have that impression. Certainly, if this hadn’t happened, Justice Ginsburg would have been expected to serve for several more years.

Could this nonetheless cause her to retire if she is going to recover? I would be absolutely shocked. The Justice’s reaction to her previous cancer was, as she explained at the time, to treasure all of life, including her public service to the country. She recently sent word through her former clerks that she likes Justice Stevens’s model of serving well into his 80s. This is not the kind of event that will change her resolve.

I don’t actually expect this post to change the inevitable parlor game (which I play perhaps as much as anyone) of speculating about retirements. But this is serious business because the speculation is really about whether a significant public servant is going to live or die. So it ought not be done lightly. What we know now is that – through good medical care and lucky timing – the news is as good as it could be.

When there is more news, we are extremely likely to find out. When the Justice previously had cancer she relatively quickly released a statement (around ten days after treatment) providing an extremely detailed explanation of her condition. As I indicated above, it would be in her nature to do the same thing here when she knows more.

[classicman2]

Even if Ginsburg, Stevens, & Souter retire - will it make any difference as far as the balance of the court?

[Venusian]

Nope. Obama will nominate someone pretty liberal and the Senate will approve them. I suspect the GOP will go along with it too. Dems seems to oppose Rep nominations more than Reps seem to oppose Dem ones.

[wendersfan]

Nope. Obama will nominate someone pretty liberal and the Senate will approve them. I suspect the GOP will go along with it too. Dems seems to oppose Rep nominations more than Reps seem to oppose Dem ones.That has been true in the past but I don't know if it will hold in the future. You may very well be correct.

Rather than the whole left <--> right thing, I'll be interested in how Obama's pick(s) view the role of the executive and separation of powers. That's the new "battlefield".

[classicman2]

I would imagine they'll view the executive & separation of powers the same way that Obama does.

Well maybe not if enough time passes - Obama's view of role of the executive will probably change. ;)

[JasonF]

Nope. Obama will nominate someone pretty liberal and the Senate will approve them. I suspect the GOP will go along with it too. Dems seems to oppose Rep nominations more than Reps seem to oppose Dem ones.

The way the Republicans treated President Clinton's Circuit Court nominations -- particularly toward the end of his tenure in office -- suggests otherwise.

[Red Dog]

The Republicans had a majority in the Senate then. They don't now, and when they didn't in 1993-94, they were far more accomodating than the minority Democrat Senate from 2003-07.

[JasonF]

The Republicans had a majority in the Senate then. They don't now, and when they didn't in 1993-94, they were far more accomodating than the minority Democrat Senate from 2003-07.

I agree with your description of historical events. I'm less sanguine that the minority Republicans of today will be as accomodating as the minority Republicans of 15 years ago, particularly in light of the obstructionist actions, both real and perceived, taken by the minority Democrats in the interim.

[Red Dog]

I agree with your description of historical events. I'm less sanguine that the minority Republicans of today will be as accomodating as the minority Republicans of 15 years ago, particularly in light of the obstructionist actions, both real and perceived, taken by the minority Democrats in the interim.


I don't know either. I can't say that I would blame them if they take a hard-line sour grapes approach exhibited by the Democrats when it has come to judicial nominations for the last 25 years.

After the behavior of Democrats during the Bork and Thomas hearings, I think the GOP showed remarkable restraint during the Clinton presidency.

My biggest question is if they will they press politically incorrect stare decisis decision-making (pro-gun, P.B.A., limits on gay equal protection, executive branch power) of the last several decades in their questioning.

[kvrdave]

I agree with your description of historical events. I'm less sanguine that the minority Republicans of today will be as accomodating as the minority Republicans of 15 years ago, particularly in light of the obstructionist actions, both real and perceived, taken by the minority Democrats in the interim.

So will they out butthead the Democrats? I doubt it. If what we have seen in the transition is any indication, if the Repubs don't like someone, they will probably just dig up dirt (or let the press) and they will get out on their own.

[Red Dog]

So will they out butthead the Democrats? I doubt it. If what we have seen in the transition is any indication, if the Repubs don't like someone, they will probably just dig up dirt (or let the press) and they will get out on their own.

Or just investigate their tax records. ;)

[Red Dog]

Interesting post on SCOTUSBLOG


Linked Retirements and the Summer of 2009
Sunday, February 8th, 2009 4:15 pm | Tom Goldstein

On hearing that Justice Ginsburg had undergone surgery for treatment of pancreatic cancer, I wrote my optimistic view that the Justice would recover and continue her service on the Court. The early discovery of the cancer (illustrated by the fact that she was a candidate for surgery), the apparent success of the procedure, and her fortitude (and that of her family) in similar circumstances, suggest that hers is the fortunate case in which a terrible disease can and will be defeated. General five-year survival rates for pancreatic cancer can make a general point in a newspaper but they don’t actually say anything more about whether Justice Ginsburg in particular will recover in the circumstances of her own illness than the statistic that the Court grants one percent of all cert. petitions tells you about whether it will hear any particular case. Both suffer from the fallacy of extrapolating individual predictions from aggregate data derived from large numbers of highly distinct cases.

But the opportunities for unwarranted hype and hyperbole are far from exhausted by the surgery itself. Anyone would be significantly weakened by serious abdominal surgery, so we should equally resist the temptation to read anything into the fact that she may appear weakened when she returns to the bench in a couple of weeks.

It is the post-surgical pathology reports that will matter. The Justice’s intuition is towards disclosure, as illustrated by her initial detailed statement and the fact that she authorized the Court’s Public Information Office to report that she would return for its February sitting. That makes it likely (though of course not certain) that she will provide more information over the next ten days as she learns it herself. For that reason, I adhere to my view that we should “call off the RBG retirement watch.”

That said, I don’t think that it is too early to say that the fact of Justice Ginsburg’s illness – including her anticipated recovery – may make a retirement more likely this summer. Here is why . . . .

My working assumption has been (and remains) that Justices Stevens and Souter will retire during this Presidency. I thought that would be true no matter whether John McCain or instead Barack Obama won the election. Importantly, that assumption is built on a thin foundation. Both seem to be thriving on the Court.

There is an actuarial term limit on everything we do, but Justice Stevens’ age hasn’t seemed to slow him a bit.

The conventional wisdom is that Justice Souter is ready to retire and return to New Hampshire, including because he has never particularly taken to Washington, D.C. Some of Justice Souter’s former clerks hold that view. But we’re not talking about quitting just any job. And I continue to believe that it has to be difficult for a Justice of the Supreme Court to sign and deliver a letter giving up that seat. Justice Souter in particular keeps his own counsel and I don’t believe that anyone has reliable evidence that he has a present intention to retire.

Though some have noted that Justice Souter has yet to hire clerks for O.T. 2009, that is entirely ordinary – he generally hires between February and April. It’s equally unreliable to infer from the fact that Justice Stevens has hired for O.T. 2009 that he definitely intends to stay. Justice Stevens makes clear to the applicants he interviews that he could decide to retire.

The facts that we know, and the caveats that go with them, suggest to me that it is likely that Justices Stevens and Souter will retire in the nearish future, but that there isn’t sufficient reason to conclude that either has been working from a plan to retire this summer in particular.



I nonetheless do think that both of them will account for Justice Ginsburg’s condition in their thinking about retirement. There are no rules on when a Justice must retire. But a practice has developed that is intended to further the interests of the Court. Justices tend to retire (a) in the run up to the summer recess (permitting confirmation hearings before the Court returns in the Fall), (b) in separate years (to avoid the complications of multiple Supreme Court confirmation hearings in a single summer), and (c) not in election years (to avoid the prospect that the confirmation will be obstructed in order to allow for a new President to make the appointment or a new Senate majority to obstruct or facilitate it). Put another way, Justices Stevens, Souter, and Ginsburg theoretically could all retire in the Fall of 2012, but their intuition will be to try to space things out. On that understanding, there are three summers available for retirements during this Presidency – 2009, 2010, and 2011.

Though precise accounts vary, it is understood that Justice O’Connor retired a year earlier than she otherwise was likely to because it seemed likely that Chief Justice Rehnquist would retire the following summer as a result of his thyroid cancer. A similar phenomenon may present itself here. The greater the odds that Justice Ginsburg will retire in 2010 or 2011, the greater the parallel incentive for Justice Stevens or Justice Souter to leave this summer.

Justice Ginsburg’s illness could thus affect the retirement calendar by making a resignation by Justices Stevens or Souter significantly more likely this summer if two premises – one debatable and the other simply unknowable at this point – are true. The debatable premise is that Justice Stevens or Souter intends to retire in the next few years. The as-yet-unknowable premise is that Justice Ginsburg tells her colleagues that there is a significant chance that her cancer will recur, suggesting that she may retire later in the Presidency. That would mark a significant change from her clearly stated intention to remain on the Court for many more years and would indicate to Stevens and Souter that the best opportunity for a more orderly retirement would be this summer.

To emphasize the point, I don’t think this is the most likely scenario. I expect and believe based on the available evidence that Justice Ginsburg will recover. I also don’t believe that Justice Stevens or Souter will overreact to the news of her illness. Even if both are considering retiring, neither is rushing for the exits, and Justice Souter at the very least recognizes that he could easily continue to serve into the next Presidency. The most important consideration will be their own judgments about their desire to continue to serve. My only point is that the retirement decisions of the Justices are inevitably tied together to some extent.

[Josh-da-man]

Justice Balko and Justice Strossen have a nice ring to them.

[CRM114]

When does Scalia retire?

[Red Dog]

Not in the next 4 years.

[wendersfan]

He's 72. he almost certainly can make it 'til 80. ;)

[Red Dog]

He's 72. he almost certainly can make it 'til 80. ;)

Yep. Barring any health issues, he'll almost certainly wait it out until at least 2017. From everything I've heard, he loves his job.

Breyer is only 2 years younger than Scalia. I can easily see him retiring at 75 or 76 in a hypothetical Obama 2nd term so that a Democrat can appoint his replacement.

Kennedy is 72 - he's a bit of a wild card. I could see him sticking around 8+ years because he loves being the power/swing Justice which will certainly continue for foreseeable future.

[classicman2]

Justice Ginsburg has started chemotherapy treatments.

I thought I had read where she was not going to have to have chemotherapy.

[Red Dog]

There's more scuttlebutt that she is going to hang it up this summer. Maybe Souter too - from what I've seen, he still hasn't hired law clerks for next term yet.

[JasonF]

There's more scuttlebutt that she is going to hang it up this summer. Maybe Souter too - from what I've seen, he still hasn't hired law clerks for next term yet.

Justice Souter never hires his clerks until springtime. Don't read anything into the fact that he hasn't hired his clerks yet.

As for Justice Ginsburg, she made an offhand comment about the fact that they hadn't taken a court picture in some time, but that she expects they'll take a new one soon. Court pictures are only taken when a new justice joins the court, so her comment has gotten everyone speculating like a bunch of kremlinologists.

[Red Dog]

Justice Souter never hires his clerks until springtime. Don't read anything into the fact that he hasn't hired his clerks yet.



I already noted that in a previous post. He usually hires between Feb and April.

[JasonF]

I already noted that in a previous post. He usually hires between Feb and April.

Which is why I don't understand why people think the fact that it's mid-March and he hasn't hired clerks yet (that we know of -- it's not like there will be a press conference when he does so) means that he is retiring.

[Red Dog]

Which is why I don't understand why people think the fact that it's mid-March and he hasn't hired clerks yet (that we know of -- it's not like there will be a press conference when he does so) means that he is retiring.

Well, with each passing day, one could say the odds of retirement get shorter. We're half-way through his usual hiring period.

[wendersfan]

<a href = "http://blogs.wsj.com/law/2009/04/20/the-court-led-by-stevens-mostly-rules-against-shakespeare/">The Court, Led by Stevens, (Mostly) Rules Against Shakespeare</a>

By Ashby Jones

Turns out the justices of the Supreme Court debate over more than just the outcome of high-profile legal cases: They argue Shakespeare as well.

Specifically, it seems that a handful of justices have gotten serious over the so-called Shakespeare authorship question — uncovering the true identity of the writer of Hamlet, Macbeth and Titus Andronicus, which many have called the Bard’s worst play. Click here for the story, from the WSJ’s Jess Bravin.

Justice John Paul Stevens feels strongly that the writer of the plays was not Shakespeare, but the 17th earl of Oxford, Edward de Vere. Several justices across the court’s ideological spectrum say he may be right. That makes Justice Stevens a so-called “Oxfordian.”

Since the 19th century, some have argued that only a nobleman could have produced writings so replete with intimate depictions of courtly life and exotic settings far beyond England. Dabbling in entertainments was considered undignified, the theory goes, so the author laundered his works through Shakespeare, a member of the Globe Theater’s acting troupe.

But Justice Stevens says he became especially interested in Shakespeare when he attended the Chicago World’s Fair in 1933, where a replica Globe Theater presented many of the plays. Justice Stevens’s father ran the restaurant concession nearby.

Justice Stevens didn’t start thinking about the authorship question, though, until 1987, when he joined Justices William Brennan and Harry Blackmun in a mock trial on authorship. While he wasn’t entirely convinced at that point, subsequent research has persauded him that de Vere was the one.

Not all members of the court are persuaded. “To the extent I’ve dipped in, I’m not impressed with the Oxfordian theory,” says Justice Anthony Kennedy. But of the nine active justices, only Stephen Breyer joins Justice Kennedy in sticking up for Will. Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito declined to comment.

Justice Sandra Day O’Connor, who retired in 2006, cast the court’s deciding vote many times. On Shakespeare, she says, “I’m not going to jump into this and be decisive.”

According to Justice Stevens, “Sandra is persuaded that it definitely was not Shakespeare” and “it’s more likely de Vere than any other candidate.” Pressed, Justice O’Connor says, “It might well have been someone other than our Stratford man.”

[TruGator]

There's more scuttlebutt that she is going to hang it up this summer. Maybe Souter too - from what I've seen, he still hasn't hired law clerks for next term yet.

http://www.cnn.com/2009/POLITICS/04/30/justice.souter.retiring/index.html

Justice David Souter to retire from Supreme Court, source says

WASHINGTON (CNN) -- After more than 18 years on the nation's highest court, Supreme Court Justice David Souter is retiring, a source close to Souter told CNN Thursday.
David Souter has served more than 18 years on the Supreme Court.

David Souter has served more than 18 years on the Supreme Court.

Souter will leave after the current court term recesses in June, the source said.

Filling Souter's seat would be President Barack Obama's first Supreme Court appointment -- and the first since George W. Bush's picks of Samuel Alito in 2006 and Chief Justice John Roberts in 2005.

Souter, 69, was tapped for the court by President George H.W. Bush in 1990, but disappointed many conservatives when he turned out to be a typical old-fashioned Yankee Republican -- a moderate, with an independent, even quirky streak.

Souter's departure will leave the two oldest justices -- and the most liberal -- still on the bench. Retirements for John Paul Stevens, 89, and Ruth Bader Ginsburg, 76, have been rumored for years, with many expecting that one or the other would be the first to give a new Democratic president a Supreme Court vacancy.

Souter's decision came as something of a surprise, although he has long been known to prefer the quiet of his New Hampshire farmhouse to the bustle of the nation's capital.

[JasonF]

Let the speculating and freaking out begin ... now.

[kvrdave]

Good for him. Someone ought to let Stevens know that the guy 20 years younger than him is retiring. Probably doesn't affect the make up of the court much. I would think that getting out at 69 would be the way to go. Still be able to golf, etc.