If Obama Loses: The Courts

[WilliamPitt]

The Courts
The conservative takeover will be complete.

By Dahlia Lithwick

For anyone considering the 2012 election’s importance to the future of the American judiciary, one fact stands out: next November, Ruth Bader Ginsburg will be seventy-nine years old. If a Republican wins the presidential election, he or she may have an opportunity to seat Ginsburg’s successor, replacing the Supreme Court’s most reliably liberal jurist with a conservative. That would mean that the Court—currently balanced almost elegantly between four liberals, four conservatives, and the moderate conservative Anthony Kennedy—would finally tilt decisively to the right, thereby fulfilling Edwin Meese’s dream, laid out in his famous 1985 speech before the American Bar Association, of reshaping the Court around one coherent “jurisprudence of original intention.” Meese, who was then Ronald Reagan’s attorney general, wanted nine conservative constitutional originalists on the Court. He may soon get his wish. A 2008 study by Richard Posner, a federal appeals court judge, and William Landes, a law professor at the University of Chicago, examined the voting records of seventy years of Supreme Court justices in order to rank the forty-three justices who have served on the Court since 1937. They concluded that four of the five most conservative justices to serve on the Supreme Court since 1937 sit on the Supreme Court today. Justice Clarence Thomas ranked first.

Kennedy, who is ranked tenth in that study, will be seventy- six next November. If a Republican successor of Obama gets to replace both Kennedy and Ginsburg, it’s fair to predict that the Roberts Court may include five or even six of the most conservative jurists since the FDR era. Following the ideological disappointment that was David Souter, Republicans have been spectacularly successful in selecting and confirming justices who consistently vote for conservative outcomes. Indeed, the replacement of moderate Sandra Day O’Connor with Samuel Alito may have produced the most consequential shift at the Court in our lifetimes; in a few short years O’Connor’s pragmatic legal doctrine in areas ranging from abortion to affirmative action to campaign finance reform has been displaced by rulings that would make Edwin Meese’s heart sing.

But it’s not just the Supreme Court that would tilt further right. The high court only hears seventy-some cases each year. The vast majority of disputes are resolved by the federal appellate courts, which are the last stop for almost every federal litigant in the country. And the one legacy of which George W. Bush can be most proud is his fundamental transformation of the lower federal judiciary—a change that happened almost completely undetected by the left. At a Federalist Society meeting in 2008, Bush boasted that he had seated more than a third of the federal judges expected to be serving when he left office, most of them younger and more conservative than their colleagues, all tenured for life and in control of the majority of the federal circuit courts of appeals. The consequences of that change at the appeals court level were as profound as they were unnoticed. As Charlie Savage of the New York Times put it at the time, the Bush judges “have been more likely than their colleagues to favor corporations over regulators and people alleging discrimination, and to favor government over people who claim rights violations. They have also been more likely to throw out cases on technical grounds, like rejecting plaintiffs’ standing to sue.” In short, they have copied and amplified the larger trends at the Roberts Court: a jurisprudence that skews pro-business, pro-life, anti-environment, and toward entangling the church with the state. Under the rhetorical banners of “modesty” and “humility” and “strict construction,” the rightward shift has done more to restore a pre-New Deal legal landscape than any legislative or policy change might have done.

(snip)

Imagine a Democratic presidential nominee running on promises to reshape, remake, make over, hog-tie, or even just refinish the federal bench. It doesn’t happen. And so, even though the most conservative Supreme Court in decades sits poised to decide cases ranging from the constitutionality of President Obama’s health care legislation to the future of affirmative action in schools, the rights to gay marriage, and the fate of the voting rights act, Republicans portray both the Supreme Court and the lower courts as a collective of lefty hippies. And Democrats mainly just look at their fingernails. If you care about the future of abortion rights, stem cell research, worker protections, the death penalty, environmental regulation, torture, presidential power, warrantless surveillance, or any number of other issues, it’s worth recalling that the last stop on the answer to each of those matters will probably be before someone in a black robe. Republicans have understood that for decades now, and that’s why the federal bench—including the Supreme Court—is almost unrecognizable to Democrats today.

The rest: http://www.washingtonmonthly.com/magazine/january_february_2012/features/the_courts034474.php

[hifiguy]

1. This is the best reason to not be complacent.

I have many, many issues with the POTUS, some of them very big indeed, but this is not one of them, and it is why he deserves to be reelected.

[CaliforniaPeggy]

2. Thanks for this, Will.

This issue really needs the bright light of day so we can truly see what's at stake.

This is the issue, the long-term issue, that matters so much.

If for no other reason, Obama must be returned to the Presidency.

[Zorra]

3. Yep. That's proven reality. 2000. SCOTUS. Bush. Cheney. Rove.

I'm still totally pissed off; this anger fuels a large part of my interest in politics/Occupy, and in making sure that Bush never happens again.

I will never forget. Never. Fucking. Ever.

As critical as many of us have been of Obama, it would be disingenuous to not recognize that he has done more good than any republican ever would have.

We must not allow a republican to get within sight of the WH.

[Cognitive_Resonance]

4. A really good reason to ensure a second term for Pres. Obama and holding the Senate. nt

[AnotherMcIntosh]

5. If he wins, based on his actions can you promise that he will not shift the Court more to the right?

When I supported and voted for him in 2008, I thought that we were voting for someone with progressive and liberal leanings.

We all knew that he had a (D) after his name. But experience has shown that he prefers to describe himself as a "Centrist."

Are we, too, now supposed to be "Centrists"? Whatever that term means, it doesn't mean liberal or progressive. Whatever that term means, experience has also shown us that it doesn't mean moderate.

If that means that, as a practical matter, he must capitulate to Republicans because he doesn't have sufficient votes in Congress and the Senate to take other action, doesn't that also mean that he will be obligated to capitulate to Republicans with respect to Supreme Court appointees?

[FarLeftFist]

6. Has he with his 2 previous nominees to the SCOTUS?

[WilliamPitt]

7. I can certainly promise

you will like the alternative even less.

Fact.

[AnotherMcIntosh]

36. He is going to get the nomination. He's going to win. It's a sure thing.

[Scootaloo]

8. For real?

Sonia Sotomayor? Elena Kagan? These are the "rightward shift" that Obama has given us so far, I suppose?

I know folks like you really, really get off on demonizing Obama and trying to get the rest of us to abandon him. But... really? Could you at least TRY to cleave to reality, once in a while? 'Cause fabricating bullshit isn't going to make us stay home.

[AnotherMcIntosh]

9. People who rely upon logic are not "demonizing Obama." In a democracy, the people have a right

to question the actions of their political leaders.

In this country, we don't elect dictators.

If you don't like it, too bad.

[Scootaloo]

13. Sure you have that right

Just as I have the right to point out that your "criticisms" are stupid and not based in reality, and are rather based on the assumption that "Obama = Always Bad."

In this country, we don't elect dictators? Considering you and the other Fauxgressives are the main impetus behind the would-be dictators and theocrats taking home the bacon in 2010, and here you are now trying to discourage people in order to ensure another such sweep, I have to wonder how you figure.

I'll tell you what. After you and the other fauxgressives get president Gingrich / Romney into office come January, you come back and show us your big brown-stained, shit-eating grin and tell us again how "they're all the same"

[AnotherMcIntosh]

14. "Fauxgressives" = Namecalling. I'm now selecting the ignore button. Bye.

[BzaDem]

17. The problem is the lack of logic in your question -- not that it "relies on logic."

A post backed up by logic would have started by looking at Obama's current nominees, concluded that they were quite progressive, and judged the probability of Obama appointing a conservative is about as low as a Perry appointing a progressive.

[AnotherMcIntosh]

23. Thank you for your suggestion, but the Supreme Court is full. He does not have any current nominees

If you are referring to the two former nominees of President Obama who were appointed to the Supreme Court, then you may wish to consider a source such as judgepedia.

Of course, neither the Hispanic heritage of Justice Sonia Sotomayor nor her gender are factors in determining whether she tends to be more liberal or more conservative.

"A study of her 226 majority opinions since 2001 finds that [ONLY] 38% of her opinions could be clearly defined as liberal in nature with 49% of them falling clearly on the conservative end of the spectrum. She tends to be more conservative in criminal cases ..."
http://judgepedia.org/index.php/Sonia_Sotomayor

Although Justice Sotomayor tends to be more liberal with respect to her dissenting opinions, this does not negate the fact that she has written more conservative than liberal opinions and that she tends to be more conservative in criminal cases.

With respect to Justice Elena Kagan, likewise neither her religion nor her gender are factors in determining whether she tends to be more liberal or more conservative. (She, however, identifies with Conservative Judaism. http://en.wikipedia.org/wiki/Elena_Kagan )

While some of us have high hopes for Justice Kagan, she does not have a sufficient track record for anyone to objectively say that she will turn out to be more liberal or more conservative. She came to the court without any judicial experience at either the state or federal levels. She has not written court opinions and the number of briefs that she has written are limited in number.

During her confirmation hearing, she already indicated that she does not favor judicial activism by saying:

"I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so."
http://judgepedia.org/index.php/Elena_Kagan

That is not to say that she will ultimately be shown to be more conservative. She, in fact, may turn out to be more liberal. We just don't have a sufficient track record to make a fair judgment.

[BzaDem]

24. Have you actually read many of their Supreme Court opinions?

I have (though obviously not all of them).

In the vast majority of contentious cases, they both side with the other liberals. The study you quote is primarily based on her majority opinions on the second circuit court of appeals -- not her Supreme Court opinions.

Looking at appeals court opinions is folly. Appeals court judges are bound by Supreme Court precedent. That precedent is often conservative, given the make-up of the Supreme Court over the past two decades. One cannot possibly be considered "conservative" because they merely follow conservative higher-court precedent, as they are bound by law to do.

Of course a liberal jurist is going to be more liberal in their dissenting opinions. When the majority of the court is conservative (as with the Supreme Court), or the higher-court precedent is conservative (as is the case for lower court judges), of course majority opinions are going to be more conservative than dissenting opinons. Otherwise they wouldn't be majority opinions. (Though as far as Supreme Court majority opinions are concerned, I am curious which divided opinions you consider conservative.)

With that standard, on a hypothetical court divided 8-1 (8 conservatives and 1 liberal), the liberal wouldn't actually be liberal, because all their liberal opinions would (of course) be dissents.

Speaking of dissents, Sotomayor wrote a ferocious dissent in the Miranda warning case (joined by the other 3 liberals), and wrote a solo dissent in a case involving a prisoner with AIDS protesting by refusing to take his medication (among other liberal solo dissents).

[AnotherMcIntosh]

29. Interesting that you read case law.

Yes, I've read one or two court opinions myself.

[Pab Sungenis]

11. Sotomayor and Kagan

Sonia Sotomayor? Elena Kagan? These are the "rightward shift" that Obama has given us so far, I suppose?

Yes. Both were more conservative than the people they replaced. Kagan, for one, is hostile to gay marriage. And both were picked over much more qualified liberal candidates.

Either way the election goes, as far as the Court goes, we're screwed. It's not a good argument for Obama's reelection.

[jsmirman]

16. Who are the more qualified candidates you refer to?

I'm asking this sincerely. Because I know what both Sotomayor and Kagan's qualifications are and they are both, imo, extremely qualified and I'm very impressed with both of them, so far.

I'm asking this as someone who is more on the "very angry about a fair bit of stuff this administration has or hasn't done," but two of the things I've been pleased with are these two nominations. My biggest worry is that they may be hiding in the minority (if you know you're going to be in the four, you can just tuck in with the other three non-precedent setters) and that even if we could somehow turn the fifth justice, that will be the point at which they change colors.

I don't know, though. I've approved of most of the sides they've chosen, and at least wrt the cases I've listened to (I've listened to a bunch - I like listening to SC argument mp3's), they both ask probing, insightful questions.

[Pab Sungenis]

35. Just two I can name right now

are Diane Wood and Carlos Moreno.

Moreno, in fact, was apparently passed over (for Sotomayor) simply because he dared to dissent in the ruling that upheld Prop 8. What a difference with Kagan who says that there is no right to marry.

[jsmirman]

39. Take Moreno

I'm all in favor of someone sticking to his guns, and good for him.

But it's a hard argument to say he's more qualified than Sotomayor - it's speculation to say he was ahead of her in line as opposed to sharing space with her on a short list - but even if he *was* "ahead" of her in any line, that does not translate to him being more qualified than her.

I can understand your frustration at not getting who you wanted, but I think you are unfairly disparaging two very solid justices through your claim that these alternatives were "much more qualified" (your words) than them.

It seems like Wood and Moreno would also have been perfectly well-qualified to sit on the Court. But it's not like Kagan doesn't have overwhelmingly impressive credentials, as well.

[BzaDem]

18. That is patently absurd.

To the extent I could afford one, I would bet a nice steak dinner that Kagan would vote with the other liberals in upholding gay marriage.

Either way the election goes, as far as the Court goes, we're screwed.

It is really hard to come up with a statement more factually inaccurate than that. Kagan and Sotomayor are going to vote with the other liberals in the vast majority of consequential cases.

They said the court wasn't a sufficient reason to vote for Gore over Nader. What was the direct result of that? Citizens United (reversing Sandra Day O'Connor's decisive vote to uphold the Constitutionality of campaign finance).

If we continue to allow inaccurate statements like yours to go unchallenged, there won't be anything left in this country that will be protected by the courts. A fifth conservative will be the fifth vote to rule progressive economic policy unconstitutional. (See pre-1937.) All the dreams of progressives in this country will be destroyed for decades, because even if they end up winning in 20 years and passing the most progressive bills possible (say, starting with single payer), much of it will be thrown out by the justices Republicans appoint in 2013.

[jsmirman]

21. We are pretty close to being unprotected by the courts already

but you are probably right that Kennedy lacks the utter conviction in things that are wrong to sign on to such a radical change.

But this Court (and the last few similar versions of it) have systematically stripped a citizen's ability to have a voice, to protect himself from corporate malfeasance, to defend himself from government-sponsored abuse, and to hold those who harm him accountable.

Between Citizen's United, the raising of impossibly high hurdles to prevent suits against environmental destruction and financial chicanery, upholding the Patriot Act, and AT&T v. Concepcion, you know, these folks have done a lot of damage already.

It's appalling. They are this close to convincing me to give up on a career fighting for what is right in the law and just going all in on business so that I can have enough money to support my viewpoints. That's messed up. I'm not so radical that my viewpoints aren't absolutely things that deserve their day in court under this Constitution.

[BzaDem]

25. No argument there.

Between Citizen's United, the raising of impossibly high hurdles to prevent suits against environmental destruction and financial chicanery, upholding the Patriot Act, and AT&T v. Concepcion, you know, these folks have done a lot of damage already.

Absolutely true.

But as the pre-1937 court showed, it could be far, far worse. At least the current court is not throwing out economic legislation because it isn't sufficiently libertarian. (Though we will see as far as the healthcare bill goes. Maybe that will change things.)

[jsmirman]

27. I know

How about the Lochner Court...

But the present state of things is really, really depressing.

[DonCoquixote]

22. why is Sotomayor so hated?

This is a woman that has stood up to biog companies like Major League Baseball, and has a long resume. I do not understand why she is treated like some sort of failure.

Why was Sotomayor not considered qualifed enough, after she had a long, long record of ruling.

and last, but far from least, how do you intend to get judges on there that would suit your liking?

I will be polite, but I will say, these are not rhetorical questions. If you have answers, I am all ears.

[BzaDem]

26. The funny thing is that I would not be surprised if Sotomayor ended up being known to history as the

most liberal justice since Thurgood Marshall. Only time will tell.

[jsmirman]

28. Ha

I hope I'm not wrong, but my inclination is to really like her.

I know someone who clerked on the circuit, and she certainly had a reputation for being wicked smart when she was on the 2nd Circuit.

[spanone]

33. i can promise a true shit stain from president newt romney

[Pab Sungenis]

10. And if Obama wins?

More nominees like Elena Kagan. No thanks.

There are lots of reasons to vote for Obama over the Republicans but the usual fearmongering over the Supreme Court won't hold water this time.

Stick to the economic issues; that's where the difference is the most striking and what will resonate most with people this year.

[donheld]

15. what is your issue with Elena Kagan?

[Pab Sungenis]

31. Here.

Senator Cornyn: "Do you believe that there is a federal constitutional right to same-sex marriage?"

Elena Kagan: 'There is no federal constitutional right to same-sex marriage.''

http://documents.nytimes.com/elena-kagan-documents#document/p329

[BzaDem]

19. Sotomayor and Kagan may turn out to be more liberal than any liberal justice in decades.

So far, they have voted with the liberals in almost every consequential case. Kagan wrote the masterful dissent in the major campaign finance case of the term -- a stark reminder of what we could have had if certain progressives made a different choice in 2000 about the importance of the courts.

To you, the prospect of a 5th hard-line conservative tossing out all progressive economic policy is little to worry about. We should "stick to the economic issues," and ignore the prospect of progressive solutions to those issues being unconstitutional the next time a Supreme Court justice retires.

Wow.

[Pab Sungenis]

32. I say stick to the economic issues

because that's how we can win. Obama is better for the little guy than Romney, and that is the message we need to hammer home.

The man who moved the Court further to the right in his first term is not someone you want to point to when telling people to vote to protect the Court.

[BzaDem]

38. "The man who moved the Court further to the right in his first term"

My only point is that to the extent you are referring to Obama in that statement, the statement is utterly false. Fortunately, very few people would believe such a false statement, but I am nonetheless going to point out such inaccurate statements whenever I see them.

[pinto]

12. Ms. Lithwick makes a really good point re: federal appellate courts

Most federal cases are resolved at that level. SCOTUS chooses to rule on only a small # of cases brought before appellate courts.

[highplainsdem]

20. K&R. Thanks for posting this, Will!

[MFrohike]

30. Interesting

It would be very interesting to see how things would be if the court were very right-wing and if the political branches were more to the left. I have to wonder how that would play out in the context of the 14th amendment. Like I said, interesting.

I'm not speaking to the premise of the article, so please don't respond to this if you think I am. I'm just wondering how such a scenario would play out in a variety of contexts regarding the constitution. I suspect we'd see a resurgence of the old coordinate construction theory and a drive by Congress to reclaim its power to create federal rights via section 5.

[woo me with science]

34. This is the advantage of purchasing both parties.

You can put forth two candidates, one of whom will move rightward and the other of whom will speed rightward, and the people will still vote to move rightward.

Being put in a position of having to vote for someone out of fear should enrage all of us.

Occupy, because the game is rigged.

[AnotherMcIntosh]

37. Too true. And how strange that some are not only not enraged, they are cheerleaders.

[SomethingFishy]

40. Slow and painful or quick and painful

Those are the choices.

However, you may feel better if you go into the "Let's start a Super Pac and buy our own politician thread".

Or the "Hey I fucking hate Ron Paul so here is a thread bashing anyone who hates my 70000th I hate Ron Paul thread". Also amusing.

Then there is always the wonderful "I got mine so fuck you" threads that I have been seeing lately. Nothing like bragging about what a great job Obama is doing to a family on food stamps who can't get health insurance or a job.