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

[FogBelter]

Mr Stone ...

If you factor in Scalia, Thomas and Roberts isn't the statement that best describes the Supreme Court "unbalanced" as opposed to "Imbalanced"?

[splashy]

Absolutely right, fog! It's very unbalanced.

[LizM]

Why is this not a more prominent issue on the 2008 campaign trail?

[rixhex56]

This is not much of a campaign issue because these judges are appointed for life. That means the incoming president will have little effect here unless one of the judges retires.

[LizM]

Thanks for your response but the exact opposite is true. The direction that the Supreme Court will take over the course of the next generation will be dependent almost exclusively upon who will be the next President.

That is why this election is so very crucial.

[WorkingClass]

George Bush is the law. The constitution therefore, and by extension the supreme court, are irrelevant.

[CouldBeYou]

I believe it will be in the general election. At this point candidates assume voters know the Dems will appoint liberal judges and Reps will appoint conservative judges.

[LizM]

That's a good point.

[Herr Oberinspektor]

The court needs to have a "fair and balanced" spectrum of judicial opinion. If Bush gets another chance to select a judge, Democrats and fair minded Americans should demand a "fair and balanced court" by appointing a liberal.

[triestina]

Is it permissible to point out that all the five
righwings are Roman Catholic and ready to impose a theocracy as handed down by a person the Italians call Papanazi?

[GregCLE]

Permissible but incorrect. If the Vatican ruled America there would be no death penalty and there would be universal health care. Further, Senators Kennedy and Kerry are both Roman Catholic.

[MsLiz]

Doctors wear white lab coats so that we can see how clean they are. Judges wear black robes to hide the dirt.

[outnow]

"It has long been my opinion...­that the germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless stop like a thief over the field of jurisprudence, until all shall be usurped from the States, and the government consolidated into one. To this I am opposed; because when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.­"

"I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already challenge our government to a trial of strength, and bid defiance to the laws of our country." -Thomas Jefferson, President of the United States of America

The principal bedeviling force has been the unlimited power of a Supreme Court peopled by judges who represent not the powerless many but the powerful few. Corporations with no loyalty to the United States, with no soul, corporations that could not be imprisoned by their crimes or executed for their murders, corporations who were to become the owners of presidents and Congress itself, were given rights of citizens under the Constitution.

Words by Gerry Spence, "Give Me Liberty"

The handwriting is on the wall, folks. Now what are you going to do about it?

[StupideAmericans]

I wish they'd hurry up and find another inhabitable planet so we can do like the original Americans did -- flee an oppressive government run by tyrants and form a truly representative society in a new land.

[sdskelton03]

One factual correction: Whether or not the court takes a case is not dependent upon how divided the justices are. The primary reason they take a case is division in the lower court.

A point of disagreement: Ruth Bader Ginsburg is certainly as liberal as anyone who ever sat on the court.

An explanation for the rightward shift of the court: By defining the timespan only as "living memory," the author is throwing out about 180 years of court history. It has only been during that "living memory" that the court has decided to expand it's role from arbitrator to legislature. I for one am glad the court is reigning itself in.

For example I offer the lady who worked for the tire company and was discriminated against. Her case was tossed out because she didn't file within the time frame laid out by the law. (Not sure of the exact law, but it was a Johnson era civil rights law.)

We can all agree that she got hosed. Her treatment was unfair and her redress was unfairly narrow. However, the court isn't supposed to decide fair. It is there to judge constitutional adherance of the law, and in this case the law was clearly on the side of the tire company.

Liberals point to this unfairness as proof of an evil, conservative court. I see it as a victory for the rule of law and the role of the court.

To these liberals, I say your redress is with the legislature. Let's look there when we need our laws changed.

[outnow]

You have some very good points. What do make of an executive who adds "signing statements" to what the legislature passes? Or a Supreme Court that "appoints" a president?

The reality is that the court is now activist in the direction of the right-wingers. True, the court fashioned remedies to implement civil rights in the past, Brown v. Board of Education and Miranda v. Arizona, but the power of the corporations now has a permanent strangle hold on the People. I feel that the court, as presently constituted, is more about money and ideology than about legal principles.

Filing a claim within the requisite period is a procedural issue but a "continuing wrong" has traditionally overcome this harsh effect. Such a ruling gave a multi-billion dollar gift to the corporate wrong-doers. Furthermore, if a corporation is a "person" within the concept of due process in the 14th Amendment, then the corporations end up having more rights and fewer disabilities and liabilities than a "person." Nowhere is this more true than in corporate political contributions that increasingly control the selection of the entire judiciary.

The rights and privileges of persons should not be reserved to artificial entities. The East India Company caused the colonists to rebel and the railroads owned the court. Let's admit that money talks with the court. Law is an art, not a science. "A good lawyer knows the law but a great lawyer knows the judge."

The litmus test for judicial appointments and for the operation of the Department of Justice is being a loyal Bushie. I have never been so disgusted with the blatant attempt to politicize the entire operation of justice by this corrupt administration of justice as I have been with this one. Torture, unified executive theory, death penalty deficiencies, not following precedent, Gitmo. I will never bother reading their opinions - they sold out to get appointed.

[lokywoky]

Be careful when quoting this case since it was a lot more complicated than you imply here. The Law of the State where she worked would have required her to file a "new case for every single instance of discrimination" in this case, she would have had to file a case for every single paycheck she ever recieved. Her attorney argued that the continued delivery of an unequal paycheck constituted an "ongoing discrimination". The SCOTUS was asked to decide this issue of "ongoing discrimination" and while the case was decided on the side of the company - the affected State Legislature has now (thankfully) passed legislation to redress this.

While you may view it as a "victory" for the rule of law - it is merely an example of how a poorly written law results in bad outcomes - and this case happily resulted in the stupidly drawn law being immediately changed - and therein lies the victory.

[sdskelton03]

First, I didn't quote the case. I even admitted to not knowing exactly what law was in question.

That said, we agree on the points of consquence. The legislature wrote a shitty law, she got screwed and the court was correct. Further, the system worked. The legislature changed the law.

[desertdweller]

For all the conservatives' complaints against an "activist judiciary," isn't that exactly what we have now? Doesn't the conservative majority on this court essentially legislate? Above all, is not this the most partisan court in American history?

[RogerHWerner]

You misunderstand the concept of an activist judiciary as defined by conservatives! When the court exceeds the Constitution in a conservative way it isn't activist but merely being "construct­ionist." By definition then, Scalia and Thomas are strict constructionists so they can't possibly be activists even if they act like activists.­..see what I mean: Just ask them. Conservatives have been making up rules as they go along for years and the MSM lets them get away with it in the name of "fair treatment" (the MSM wouldn't want to seem too liberal). And yes, this court is also partisan and we have Rehnquist to thank for that but Scalia, Thomas, and Alito promise to continue the tradition. Perhaps I'm just an optimist but I have hope for Roberts. I think he may grow into the roll because he isn't anything like Scalia, Thomas, or Alito. We shall see.

[WillistonElkoAlum2002]

This current Supreme Court is about as far right as the radical Islam we always talk about.

Here is a fact that Geoffrey omitted: 53 years of hard-fought rights was lost in a 70-day span in the Supreme Court's most recent term. That should say something.

[sdskelton03]

You are right Williston. Now if you will excuse me I have to go stone my sister to death because she was raped.

[Galvestonians for Dr. Ron Paul]

Spain has two courts. Is now considered to be the most progressive country in the world...Mo­re progressive than Canada or South Africa.
Spain also has a two court system.
A supreme court for laws and a constitutional court for constitutional decisions.
This is what we should have.
To give these justices' the last say in our lives is wrong.
We need a court to protect our constitutional rights.
Something that is above all else and not connected to any branch of government, only the people.

[Truthorelse]

AMEN!

[Galvestonians for Dr. Ron Paul]

You are absolutely correct. People think justice Stevens is a "liberal" judge...He finds this amusing.
He was appointed by Gerald Ford and is a moderate conservati­ve...
I think we are in for a world of trouble in the next three or four years..

[rwoodsathome]

Nowhere in the article does it describe "WHAT" the justices are to decide. They are not there to 'make things right', 'to overrule legislation', or 'to push the country forward'. Their constitutional (for you progressives that's the document which lays out the duties, responsibilities and limitations of the branches of government - read it someday, you'll like it) responsibility is to judge whether the issue before them passes constitutional muster. That's it. No more, no less.

We, as a nation, put too much emphasis on the winners and losers of these opinions and not enough on the legal basis of the decision.

If you are going to criticize the court, then do it on the basis of their legal opinions of the law.

[MsLiz]

I believed that, until Bush vs. Gore.

[adamwho]

I heard Justice Stevens speak on NPR. He was appointed by Nixon and considers himself to be conservative.
It doesn't make sense to talk about liberal and conservative when liberal is defined as left of Scalia!

[keemia]

It would also be interesting to see how the court decides to reject cases. I understand a lot of cases that may lean liberally are rejected by specific conservative judges so we don't even get to hear about them.

[MsLiz]

http://seattletimes.nwsource.com/html/nationworld/2003916961_websextoyban01.html

The Alabama ban on sex toys was appealed from the 11th circuit but SCROTUM I mean SCOTUS denied certiorari.

I loved the quote from the appellant, which I am too modest to repeat here.

[splashy]

That sex-toy ban is actually targeted toward women, who often need them to be healthy. Typical right wingers, who often want to punish women if they can get away with it. That is what the pro-forced birthers are all about.

[connorin]

God yes...this facist nazi supreme court has taken away every single right we hold dear...I can remember when we could...um­mm wiat...huh­?...other than the fact that its not the marxist utopia that the majority of the federal judgships in this country want (hello ninth circuit and friends)..­.they haven't overturned any major decisions or pieces of legislation

[roald]

Connorin - please consider not using extreme exageration - "taken away every single right that we hold dear" for example - to make your points. When I see this, I discount your entire statement, which certainly has some valid points, which I will now miss.

For the SC, slow, steady change will allow large changes to be made with fewer people noticing. I read a random few decisions yesterday and, while not a proper sample, found a strong bias toward business and conservative positions.