Supreme Imbalance

We are now several weeks into the Supreme Court's 2007 Term. We should keep a watchful eye on the Court. With Chief Justice Roberts and Justice Alito now firmly ensconsed, we might be on the verge of a significant paradigm-shift within the Court. If their performance last Term is any indication of what is to come, we may be in for quite a ride.

In the media, we constantly read about how "closely divided" the Court is and about how many cases are decided by a vote of five-to-four. There are, according to the media, the "conservative" Justices - Scalia, Thomas, Roberts, and Alito; the "liberal" Justices - Stevens, Souter, Ginsburg, and Breyer; and Justice Kennedy -- the "man in the middle." The impression created by such accounts is that this is an "evenly balanced" Court. This is a fallacy, and a dangerous one at that. What do we mean by "balance"? Why don't the many five-to-four decisions prove that this is a "well-balanced" Court?

The Supreme Court has discretionary jurisdiction. It generally agrees to decide only the "hardest" cases. What are the "hardest" cases? Most often, they are the ones about which the Justices are divided. That, indeed, is largely what makes them "hard." Thus, one can reasonably expect that the Supreme Court is most likely to hear those cases that will most sharply divide the Justices, because those are the cases about which the law is most uncertain. Even a Court consisting of nine Scalias or nine Ginsburgs would eventually wind up dividing five-to-four in the cases it agrees to decide, because it is the division within the Court itself that defines the cases that most demand the Court's attention.

The important question, then, is not whether the Court often divides five-to-four, but where on the constitutional spectrum the decisive Justice sits. Depending on the makeup of the Court, that Justice might split the difference between Scalia and Thomas, on the one end, or she might split the difference between Brennan and Douglas, on the other.

Within any set of nine Justices, some will be relatively more "conservative" and some will be relatively more "liberal." That they often divide five-to-four tells us nothing about "balance" and nothing about whether the Court as a whole is "liberal," "conservative," moderate, or whatever. It tells us only that the Justices often divide five-to-four, which tells us nothing about the Court as a whole.

The current Supreme Court is not "balanced" in any meaningful sense of that term. It is, in fact, an extremely conservative Court - more conservative than any group of nine Justices who have sat together in living memory. Here are some ways of testing this proposition:

• Seven of the current nine Justices were appointed by Republican presidents.

• Twelve of the fourteen most recent Supreme Court appointments have been made by Republican presidents.

• Four of the current Justices are more conservative than any other Justice who has served on the Court in living memory.

• The so-called "swing vote" on the Court has moved to the right every single time it has shifted over the past forty years, from Stewart to Powell to O'Connor to Kennedy.

• As Justice Stevens recently observed, every Justice who has been appointed in the past forty years was more conservative that the Justice he or she replaced.

• If we regard Warren, Douglas, Brennan, and Marshall as the model of a "liberal" Justice, then there is no one within even hailing distance of a "liberal" Justice on the current Supreme Court.

In fact, the current Court consists of five conservative Justices, four of whom are very conservative, and four moderate Justices, one of whom, Ginsburg, is moderately liberal. As Justice Stevens recently observed, it is only the presence of so many very conservative Justices that makes the moderate Justices appear liberal. But this is merely an illusion.

Now, I know I have been tossing around the terms "conservative" and "liberal" as if they have clear, well-defined meanings, when of course they do not. In my next post, I will clarify what I mean by these terms.

This is the first in a series of six posts on the make-up and direction of the Supreme Court.

Comments

[littleblackcat]

FIRST ORDER OF BUSINESS; a new law must be added to our "rule of law" and that is an END to LIFETIME APPOINTMENTS. We are currently stuck in a quagmire of right-wing appointees who have loyalty to their appointers, NOT the full, honest, and solid interpretation of LAW. It was the right who decided that corporations have the same rights as citizens, the right-installed S.C. that upheld such a travesty, and life-long terms MUST be stopped!!! We are all going to be saddled with what the bushit toadies want for the rest of our lives or until the next revolutionary war, whichever comes first.

[splashy]

There are way too many MEN on the court. Women are not represented nearly as much in government as they should be, considering they are more than half the population. Don't know if they would make fewer mistakes, but at least they would be different mistakes instead of the same ol' good ol' boys club attitudes and actions.

Corporations really have the upper hand with all their money and influence.

Sad to see our democracy get crapped on so badly.

[LoriAnn]

thank you Mr. Stone and I agree Splashy...if this court has its way women will lose every hard earned right we have managed to attain. The "righties" complain about the covering of Islamic women and how their rights are being subverted meanwhile the majority the Supremacist Court would rather see "their" women safely in the kitchen, barefoot and pregnant....and in most cases not fulfilling a potential that would over shadow their hubby. Let it be said however that motherhood is the greatest and hardest job but it is the choice that makes it so.

[WireDolly]

I second those thanks to Geoffrey Stone, and props to both splashy and LoriAnn, who've hit it right on the head.

I've always thought that equal rights would be apparent when:

1) When women fuck up, it's not assumed to be because of their being women, and

2) When we all realise that women are the creators of human life, end of story. Every person on this planet has a generous woman to thank for their very existence.

I remember a charming older gentleman who lived next door to me, used to sing to himself, etc. One day, he saw me and said "hey girl, you half the world! That is god's own message of equality. And don't you stand for nothin' less!".

Right on..

[wrabbitt]

its not a male/female thing our legal system leans more to the rights of the criminal than the victim the supreme court should be renamed the appointees court how many appeals of a death sentence should we have? 100,200? there should be 100 judges that way they will get nothing done like congress....

[Kungfublood]

It seems that being "Conservative" in that one attempts to uphold the Constitution and the time honored rule of law and time tested courtroom procedures against the pressures of politics and photo ops would not necessarily be a bad thing.However what I see is upholding the will of the president, or circumventing the rule of law when it might take a little research to become informed on a topic and to mention the trashing of courtroom procedures complete with soviet style acceptance of secret evidence and limiting the ability to mount a well prepared and informed defence based on past precedence and acceptable rules of courtroom conduct. The new group is in a large way as contemptible as George Bush is when it comes to protecting established human rights and integrity of lawful action in all aspects of detention and court procedures. If it can be taken for granted that the State is automatically and axiomatically correct- don't just have a "trial" so you can collect a pay check and get your name in some more books,let's
just forget the whole thing and let the president shoot people down in cold blood like he wants to in the first place.

[deminmo]

In this Administation the law is defined not be
people who should know it, but by politicians
that use the justice system to protect mis-deeds.

None of these Justices will vote against what
the Bush administration says is just.

[CommanderWhitehead]

You flatter them when you define them as being"cons­ervative".

"Right-wing zealots" is closer to a true definition of this cold and creepy crew of phallicly challenged old men.

Duplicitous scoundrels and frauds...who wear plastic flag-pins over their tits as they wipe their bums with our Constitution.

[GregCLE]

There are not 2 wings of the Supreme Court, but 4:

Liberal: Stevens, Ginsberg
Moderate: Breyer, Souter
Conservative: Kennedy
Arch-conservative: Alito, Roberts, Thomas, Scalia

There's no arch-liberal wing because you'd have to be a socialist to be as liberal as the arch-conservatives are conservative.

So, right now, it takes unanimity among the liberals, moderates, and conservatives to overrule the arch-conservatives.

Stevens is 87. Ginsberg is 74. If either of them die or retire and King George is able to appoint another archie, they'll have a 5-4 majority without even Kennedy's vote.

[Overd0g]

How far we have fallen as a culture. "Liberal" used to mean being a champion of individual liberty as opposed to support state control. An "extreme liberal" would be Thomas Jefferson for example, in those days. Now, Karl Marx is an extreme liberal. Blech.

[RSOlive]

Having done no statistical survey I cannot factually dispute the allegation that the Court "...generally agrees to decide only the 'hardest' cases. What are the 'hardest' cases? Most often, they are the ones about which the Justices are divided."

However, a degree and 36 years' experience as an attorney lead me to expect that such a survey would show that most of the cases taken are a combination of those that resolve conflicting precedent in the Circuit Courts of Appeal, and those that have importance as precedent, which the judicial staff reviewing petitions for review views as having a reasonable possibility that an appellant should prevail.

Unfortunately for those of us who practice in the area of civil rights and employee discrimination litigation, the balance of this article is "right" on.

[Razor7]

A easy way to remember the 4 real right-wingers is with RATS- Roberts,Al­ito,Thomas­,Scalia.

[Levittown]

The refusal of Scalia to recuse himself from cases involving Cheney shows us that selective law enforcement is the code of the right and that supremet they iare not. The Congress can overturn the Courts decision if they go too far if the Congress reahlly gives a damn. Thelobbyist still prevail and have muco dinero to spread around.

[Razor7]

The supreme court is where so much of the direction we as a nation move is decided. It has become scary with the direction this new court has taken. We have 5 Catholics and 2 Jews
who make up 25% of the population, but control 78% of the Supreme Court.

[sbrownmiller]

Jeff Toobin's "The Nine" warns that a frontal challenge to Roe v. Wade heard by this court will overturn the decision.

[sbrownmiller]

Liz M. is right. Jeff Toobin's book "The Nine" is very instructive on the Court's most important law: 5-4. A frontal challenge to Roe v. Wade at this juncture would overturn it.

[PerryWhite]

The Supreme Court hasn't made up a new constitutional right since Lawrence v. Texas. "Progressives" want legalized drugs, constitutional rights for terrorists, voting rights for illegal aliens, more racial preferences for minorities, same sex marriage by judicial fiat, unionization without secret elections and and an end to free speech for conservatives. To them, that would be balance.

[Susanholmes]

Speaking as a progressive...

Legalized Drugs: see http://www.csdp.org/

Constitutional Rights for terrorists: Yes. Everyone held by our legal system should have the same rights as everybody else.

Voting rights for "illegal aliens:" I can only assume you mean non-citizens. I challenge you to show me one single person in this country anywhere who thinks non-citizens should be able to vote.

More racial preferences for minorities: The "racial preferences" we have now have still failed to narrow the gap and, in the case of african-americans, have failed to undo the damage done to our society as a whole by chattel slavery and then segregation. This is going to take a long time and it's going to be very difficult, yes, but if we don't do it we're going to be in the unenviable position of having a large segment in society that is unable to serve that society with their full potential. Look at what happened to the Ottoman Empire after centuries of keeping their women without rights and opportunities - let's not have that happen here.

"Same sex marriage by judicial fiat:" Yes. Civil marriage is a civil right. End of story.

Unionization without secret elections: The point of the labor legislation that's being pushed right now is to undo the damage done to our middle class and our economy started by Reagan. It's a fact that we had our strongest middle class in this country when our unions were at their strongest point. We need to get back there.

"An end to free speech for conservatives:" I challenge you to show me one progressive in this country that thinks the government should be controlling speech of any kind at all.

This post from "PerryWhite," is a classic example of neocon rhetoric of the Radio Talk variety. A few things that might be factual, if spun, combined with lies and nonsense. The grains of truth within are supposed to get people to think that the rest must be true as well. This kind of thing has to be deconstructed point by point wherever it's found.

[CouldBeYou]

Intelligent, CIVIL response. Thanks.

[PerryWhite]

That's confirmation on four.

As far as "illegal immigrant voting rights":

http://www.google.com/search?q=illegal+immigrant+voting+rights&sourceid=navclient-ff&ie=UTF-8&rlz=1B3GGGL_en__176__226

[splashy]

Well said!

[MsLiz]

Have you ever listened to a "Progressive"? I suspect you have listened to Hannity and Rush instead, and they don't know much.

[splashy]

Not only don't they know much, what they do know they twist and lie about.

[BinBaldwin]

Stevens has a mixed record but in the last 10 years he has sided more with the liberal justices. Who appointed who is meaningless since these people serve for life and opinions change.

[jazzman]

The Supreme Court is just another branch of our former democratic government that has moved far away from the people. The people on this court are right wing ideological oddballs that are neither in tune with or concerned with the people or their Constitution. Republican Presidents fronting corporate shills and free market ideologues with an anti-abortion message have managed to turn the court against the very people and Constitution that they are there to protect. What's worse is that these very people were instrumental in overturning our democracy in 2000. This is a shameful lot.

[Chris]

jazzman you state that these very people were instrumental in overturning our democracy in 2000. This is a shameful lot.

Two points you either do not realize or fail to acknowledge.

7-2 was the vote to overturn the Florida Court's ruling. Are you claiming their were 7 conservatives on the court?

2 of the current supremes were not invovled in the 2000 decision yet you seem to lump them into it with you last line "This is a shameful lot."

[MsLiz]

Here is Bush v. Gore:

http://www.law.cornell.edu/supct/html/00-949.ZPC.html

Dissenters were Souter, Ginsberg, Breyer and Stevens. So how do you figure it was 7-2?

[GregCLE]

It was 7-2 that the Florida process was improper. It was 5-4 to create King Bush.

Kennedy and O'Connor both joined the majority. They are conservatives. Just not arch-conservatives.

[NoOneSpecial]

Context please.

From Wikipedia:

Seven justices (Kennedy, O'Connor, Rehnquist, Scalia, Thomas, Stevens, and Ginsburg) initially agreed upon review that there might be Equal Protection issues in using different standards of counting in different counties.

Despite the above only FIVE justices (Kennedy, O'Connor, Rehnquist, Scalia and Thomas) sought the remedy of ceasing all recounts.

And finally, the view that the Florida Supreme Court acted contrary to the intent of the Florida legislature was only held by THREE of the nine justices (Rehnquist, Scalia and Thomas).

Clearly on the most important of the decisions, the justices split along political divisions with the conservative side of the court favoring Bush.

[bushlies]

The Supreme Court is just another "rubber-stamp" for the policies of George W. Bush and Richard Cheney. The unitary executive rules and will continue to do so until the rest of us get tired of this **** and throw them all out!

Is it 2008 yet? And can we expect any one of the current crop of Presidential candidates to change this?

[PerryLogan]

The current Supreme Court will serve as a reminder of the neocon nightmare we've just lived through--like a bit of dog shit on our shoes.

[janmB]

RoveV-Wade in danger?
There are so many dangers in store for us if republicans take the White House.
I sure don't want things to stay the SAME and the republicans will just continue on GWB's path.
We cannot let this happen.