First Monday, First Tuesday

The first Monday in October -- today -- is opening day for the Supreme Court's year and the date most associated with Court. When it comes to the future of the Court, though, the day that matters far more is the first Tuesday in November, Election Day.

In the Senate debates over President Bush's nominees to the Court, John G. Roberts, Jr., and Samuel A. Alito, Jr., Republicans were fond of reminding Democrats, "Elections have consequences." They sure do -- as the last year on the Court proved. Roberts and Alito joined a conservative bloc that included Clarence Thomas, Antonin Scalia and (usually) Anthony Kennedy to rewrite the law in some of the Court's most crucial areas -- like abortion, school integration, and church-state relations. This year, there may be more of the same, as the Court is poised to take on such combustible topics as the constitutionality of gun control, the trials of the detainees at Guantanamo Bay, the new photo ID requirements for voters, and the permissibility of lethal injections for executions.

All of these changes, however, may look modest and preliminary if a Republican wins the next election. The next three likely departures on the Court all come from its embattled liberal wing. John Paul Stevens, David Souter, and Ruth Bader Ginsburg are all expected to leave the Court in the next few years. Conservative replacements will unite the Court in a way the nation has not seen since the mid-1960s, when Chief Justice Earl Warren led a phalanx of liberals. Of course, the Roberts Court would present an ideological mirror image of that increasingly distant epoch.

This is as it should be. The Constitution allows presidents to shape the Court in their images. All presidents try, and most succeed. Informed voters will recognize that they'll not only be choosing a president in 2008, but shaping the Supreme Court for decades to come.

Jeffrey Toobin is the author of The Nine: Inside the Secret World of the Supreme Court, which has just been published.

Comments

[Richard729]

Mr. Toobin states, "The Constitution allows presidents to shape the Court in their images. All presidents try, and most succeed. Informed voters will recognize that they'll not only be choosing a president in 2008, but shaping the Supreme Court for decades to come."

So, what do I find puzzling in this statement? If both Bush' #41 and Bush #43 have shaped the courts in their image then we are for sure in trouble for decades to come.

Underscoring the deep hostility towards civil liberties and freedoms is the stunning childish and immature behavior of Clarence Thomas, a Bush #41 appointee, whose paranoid schizophrenia has been seething for over 16 years since his confirmation by a Democrat-controlled committee.

Now, thanks to the Bush deep partisanship we have at least four equally partisan, activist right wing ideologues on the bench, Roberts, Alito, Thomas and Scalia (RATS) whose agenda is to shred in little pieces our U.S. Constitutional rights and individual freedoms. One by one we read their fractured logic in rulings with ever-increasing 5-4 decisions which have diluted and even overturned many of the hard-fought-for advances in civil rights legislation.

The Bush/Republican ideologues have nothing but contempt and loathing for the U.S. Constitution which they treat as a liberal document to be destroyed through their like-minded anti-U.S. Constitution RATS court. They are succeeding beyond the right wing extremists' wildest dreams.

Americans must turn out in overwhelming numbers in November 2008 if they want to curtail the totalitarian bent which has come to define the entire Republican Party and their RATS Star Chamber court which has masqueraded as the Judiciary branch of government.

Instead of judges who represent corporate interests, personal ideology and images of vainglory-seeking presidents, why not have judges who in truth represent the images of the people and the democracy to which these judges should be held accountable? I refuse to believe our country would want less.

[Steamboater]

Then I'll hold my nose and vote for Hillary if she's the nominee. I hate doing it but the supreme court is at stake. I only hope she doesn't put a "moderate" on the court who swings towards the right to please republicans. I just don't trust her.

[gcee]

You don't have to hold your nose. There is, right now, a candidate, Senator Barack Obama, who was a professor that TAUGHT constitutional law, who, by definition, understands the very weighty implications spoken of in this post.

[Dansden]

Just think of it!

Our President invaded Iraq to show them just how corrupt a democracy can be- and they are taking his advice!

See, George knew what he was doing- why just shred one Constitution in America when you can start a new 'democracy' and teach them how to shred their own and kill their own citizens with religious diatribes and lies as george has done with his religious ideas...

[Dansden]

Tahnks, Jeffrey!

Americans,if you like the President this 'SUCKA' COURT gave us in 2000, you'll just luv what they are about to do with your citizen rights through their corporate fascist mentality.

If 50,000,000 people VOTE to elect a new democratic president, then 50,000.000 people can also SIGN THE NATIONAL INITIATIVE which would change the LAW and PLACE A TERM LIMIT ON SUPREME COURT JUSTICES FROM NOW ON....

unless, of course, you like this 'SUCKA' COURT!

[siwanoy]

Election day is NOT always the first Tuesday in November. Clause 4 of the Constitution: Election day
The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
The Congress sets a national Election Day. Currently, Electors are chosen on the Tuesday following the first Monday in November, in the year before the President's term is to expire. The Electors cast their votes on the Monday following the second Wednesday in December of that same year. Thereafter, the votes are opened and counted by the Vice President, as President of the Senate, in a joint session of Congress.

[Not Blind]

Being conservative isn't necessarily bad. In fact, a true conservative would interpret the acts of the Bush administration as illegal: condoning torture (Abu Ghraib), rape and murder (Haditha), indefinate detention without any charges or access to legal counsel (Guantanimo) and illegal surveillance upon citizens without warrants (even under FISA, which gave lower standards than the original constitution). Then there is NCLB, which overrides the rights of states to set their own standards of quality and proficiency in education, allows the military to access student records (violating FERPA - right to privacy for minors enrolled in educational institutions). Add on the contempt of Congress (Gonzalez and others in the Justice Dept. and administration) who refused to turn over evidence under subpoena or to testify.
Then there are those signing statements and recess appointments, to avoid the system of checks and balances, oversight, inquiry and to circumvent laws with which the administration does not agree it should abide by.
I'd like to see this court, conservative or otherwise, adhere to constitutional principles, the rule of law, and address these grievous attacks on personal liberties, violations of both American and international laws.

[bobh]

In your excellent "The Nine", you describe how Kennedy tacked left after Bush v. Gore. Why has he now tacked back to the right?

[Purple Girl]

They have also been bastardized by the corruption of this admin and it's supporters (esp. corporate). It has been effectively nullified by thes appointments. There are no more gov't checks and balances and therefore WE have been silenced. We ahve already lost the Democracy- now we need to try not to loss the country ( china 'owns' a good portion of US an dour future already). It seems Bushco started waging war on US as soon as he took office- Dicks been at it for decades now.

[Janelynne]

As it should be? I don't think the founders could have imagined so self-serving a President that he would have wanted the law shaped to pay back his base.

[larryfishkorn]

Roberts was put on the court as a reward for his role as a lawyer representing Bush in Florida after the 2000 elections hadn't gone in favor of Bush. He's also there in case any politician in this country ever grew a pair and went after anyone in this fear-mongering, war-profiting administration. People this greedy and paranoid do everything they can to cover their asses for those rare times when "the people" have their moments of lucidity.

[NoblesseOblige]

Hi Jeffrey,

I always enjoy your legal explanations and opinions on CNN. As you know well, many of us are not lawyers, we're lay people. And, we appreciate your style along with your honest and clear presentation and analysis of the facts--as pertinent to the law.

I will buy your latest book--even though I already have a pile of history books waiting to be read. But, yours is special to me because it's about the Supreme Court. I used to have a lot of respect for that institution. But, I lost all respect for the justices when they gave the 2000 election to George Bush.

Keep up the great work and please continue blogging at Huffingtonpost! Also, I like to read the posts your blogs engender.

Peace

NoblesseOblige

[larryfishkorn]

Roberts was appointed as a thank-you for going down to Florida in 2000 to secure a Bush win. He's also there as insurance for Bush, just in case this country were to elect a sane and rational government that might want to persecute Bush, Cheney, or any of the other war-profiting hawks, who have done things we don't even KNOW about yet.

[BARRISTER]

Blame the soft shelled Democrats for not stopping his Alito's appointments

[nancytheragingliberal]

Barrister: You are totally correct re: Alito The Dem's sat there, were unprepaired, babbled nonsense, and allowed Sammy the Fish Alito on the bench. The Roberts/Alito combo should put fear in all Americans. Wake up and vote out repub's. If you don't, then the highest court will be taken over by more crazy corporitists, and folks, they do NOT represent the American people.You can't get to the polls? Get an absentte ballot. How easy it that? It is mailed to you, you mail it back. Preso. You have done your job as good Americans. Don't continue to be "Sheeple," (ba ba) , Go back to being people and vote all of these incompentents OUT.

[hark]

This reads like a bland, seventh grade civics lesson, when the country is falling apart, and needs somebody from the establishment to recognize that. Because it's just not enough for liberal blogs to call attention to this crisis.

[PaHairO]

I completely agree with the 1st sentence here.

Jeff, you're WAY better than this middling post. We got fire in our belly here, dude - definitely not the people you need to remind that voting is important.

This corrupt system is sick & dying. I see (over on the right there) that you are selling books.

Any fire in those ?

[AmericanInsurgent]

When I was in law school, my professors ridiculed Rehnquist's intellectual dishonesty in his many dissenting opinions on constitutional law issues. Now, after Rehnquist's painful tenure as chief justice, the supreme court is a pitiful joke. I've watched them appoint Junior president. I've watched them change long-standing precedent immunizing sitting presidents from having to testify under oath so that Paula Jones' frivilous law suit could proceed and so Ken Starr could get the Cintons. The law and the constitution are history under these bunch of rightard politicians controlling the supreme court. Rehnquist was a moderate compared to these morons. It's sickening but most people don't realize how bad it is. 4 more years of Repug appointments and the public might finally wake up. But maybe not. America has allowed this to happen. Only Americans can swing the pendulum back to reality and the rule of law.

[nunzia]

I'm wondering: if the dems get a solid majority in the house and senate, and also a prez in the wh, can they expand the number of scotus members? There's slim thread of hope there, but the reichwing will fight tooth and nail this election, as in the last 2, and they will indeed cheat - again.

[Lance734]

Yes, they can. It is up to Congress to set the number of justices on the SCOTUS as well as to establish the federal circuits and all lower federal judges. In fact, the Sup Ct is the only federal court that does not exist on Congress' prerogative (the Constitution mandates the Court's existence as the 3rd branch of gov't). Congress can also set the jurisdictional limits on the federal courts (except that the judiciary remains the sole arbiter of the Constitution, see Marbury v. Madison). So, yeah, Congress has a lot of power when it comes to this issue.

That being said, even with a Democratically-controlled Congress, unless Dems win the presidency too, they can't reshape the court through expansion of the number of justices or even approving of appointments. They won't even be able to block distasteful appointments unless they can muster a super-majority of 60 votes within the Senate to overcome a minority filibuster, which the Repubs have used exceedingly well this year to block all sort of Dem bills (like habeas corpus restoration). Remember too, that with so-called "Independents" like Lieberman voting with the Repus on issues of Presidential power, the Dems need even more of a solid majority from real Independents & other social progessives/liberals so as to check the President in case the Repus cheat their way to another Presidential win.

Even with a Democratic President, in order to reshape the court so as to undo the damage of the W & HW Bushes' SCOTUS appointments (read Thomas, Roberts, & Alito), unless the Dems get an overwhelming majority in both houses of Congress, they will still need the cooperation of the more moderate Repubs, like those from states like Maine, Minnesota, New Hampshire & the like. That may be only wishful thinking, though.

[mommadona]

WHY do they all attend a CATHOLIC MASS on that first day?

Pretty weird to me....what's up with THAT?

[nunzia]

Most of them are Catholic. You know, the "church" that is a luxurious social club for gay men, one of the richest organizations in the world with wealth beyond our dreams, the foremost anti-choice institution in this country, a sanctuary for all kinds of ill gotten gainers. The Catholic church has always allied itself with power. Those WASPS, a few generations ago, who predicted and feared this eventuality in America, had some good instincts, huh?

[mommadona]

Never have so few done so much to so many in such
a short amount of time.
~me~

[Lance734]

"Most of them are Catholic. You know, the "church" that is a luxurious social club for gay men"

I'm not sure this response was a very accurate nor a very responsible one. I've never heard of the Catholic church being particularly associated with gay men (its dogma certainly isn't welcoming to the LGBT community), except as a not-so-subtle prejudiced implication that the perpetrators in the clergy sex scandals are closeted gay men. I would hope you're not trying to paint such a narrow-minded and bigoted view, especially not on this site, and especially since its so off-topic. I hope that I'm wrong & that I'm misinterpreting what you're trying to say.