Hey, There, Pay Attention -- The Supreme Court May Be Up For Grabs
The winner of the next election will pick the next members of the Supreme Court. If Barack Obama is elected with a powerful Senate majority, we may see a political slicing of the now dominant five-man conservative majority. Absent an untimely death, it is unlikely that Obama and a powerful Democratic Senate will, within the next four years, reverse the course set in motion nearly thirty years ago when, after the Ronald Reagan election, the conservative put their stranglehold on the Court.
It will take at least another four years with a Democratic president and a strong Senate majority to deflect the Court.
Roberts, Alito, Scalia and Thomas, all young men who have many decades to sit, together with Justice Kennedy, will dominate the Court for years to come.
Why this is so is explained in greater detail in the new edition of my book, The Next 25 Years, coming out in September.
Obama cannot do it alone. He needs a strong Democratic Senate majority to appoint more than moderate-liberals like Stephen Breyer and Ruth Bader Ginsburg, the appointees of a triangulating, accommodationist, battered President Bill Clinton. The next four years may see the appointment of Justices who evoke Chief Justice Earl Warren and his majority.
Also, for the first time in decades, the makeup on the Court is direct and center in the election. John McCain and Barack Obama have staked out totally different positions.
When the Supreme Court on June 12, 2008 delivered a near death blow to Bush's awful, inhumane detention policies and rejected Bush, Alberto Gonzales and John Yoo's attempt to deny the centuries-old right of habeas corpus, McCain first said, "It's a decision the Supreme Court has made. Now we need to move forward. As you know I always favored closing of Guantanamo Bay and I still think we ought to do that."
Obama applauded the 5-4 Boumedienne v. Bush decision that found Roberts, Scalia, Alito and Thomas in dissent.
McCain reversed his position after he heard from those he needs on the far right, saying "The decision," he said, "is one of the worst decisions in the history of this Court."
Chief Justice Roberts, when testifying at his nomination hearing, likened himself to an umpire in a ball game, who non-partisanly calls balls and strikes, dissenting in Boumedienne preposterously said the courts would now be "flooded" with lawsuits.
McCain quoted Roberts, and Justice Scalia who called the decision "disastrous," "devastating" and tragic, and again resurrected the Supreme Court as an enemy.
But one thing should be clear. The three decisions of the present Court attacking the legal foundation of Bush's war on terror do not show that the Court is now a liberal institution as conservatives now claim. The legal structure created by Bush and his Department of Justice for Guantanamo detainees do not get close to passing the "smell test." That four Justices agreed with Bush is what is remarkable -- not that the five struck it down. And, of course, the laws were too much even for Kennedy but had he gone the other way, it would have been a 5-4 Bush victory.
The last time the Supreme Court was an important issue in an election was when President Richard Nixon, in 1968, spent a great deal of time and energy blaming the Warren Court for lowering the country's morality and for the increase in crime and violence.
This debate is all to the good.
I was wrong. When I wrote my previous book, Courting Disaster (published by Times Books in 2002),I predicted a conservative rollback. What happened was worse. It was a conservative tidal wave. The Supreme Court swung even more strongly to the right than I had envisioned. Perhaps the Supreme Court's greatest case, Brown v. Bd. of Education, one that I and others thought was totally safe, has been eviscerated. My most critical conservative reviewer said that if I was right about the overturning of Warren Court decisions, not only would he eat his hat, he would also eat the Constitution. Well, he should eat both. And the Declaration of Independence.
In 1955, in Brown v. Board of Education, Chief Justice Earl Warren, speaking for a unanimous Supreme Court, said courts could be used to stop state-sanctioned segregation; that the Supreme Court rejected the sixty-year-old "separate but equal" doctrine; and that the courts would approve integration plans for state-segregated southern and northern schools. The law and logic of Brown, the promise made to America by the nine Justices of the Supreme Court, was that the Constitution required an integrated country, and that the courts would support all efforts to bring about racially integrated education.
The state and school boards throughout the country were required, the Supreme Court and lower courts said, to maintain a desired racial balance. After Brown, we saw courts approve and enforce busing plans and pairings of white and black students to try to integrate America. Some of the most powerful images of the Civil Rights movement, pictures of local police and the National Guard trying to maintain what busing and pairing had achieved, were shown on television and in newspapers. But in the summer of 2007, the United States Supreme Court broke the promise Brown made. When parents from school boards in Seattle, Washington, and Louisville, Kentucky, submitted voluntary plans to integrate schools, five of the Justices said they could not. Justices Roberts, Alito, Scalia, Thomas and Kennedy turned Brown on its head.
During the Brown era, the government was at the school doorstep opening the school to all students; now it was at the doorstep locking the door. Brown, they said, only applied when the state had segregated schools -- when that happened, the courts and armed National Guard could step in. But when parents -- black, white, Hispanic -- voluntarily sought to integrate schools that were segregated by economic circumstances or housing or job patterns, the armed National Guard could stop them. As Linda Greenhouse of the New York Times put it, "It was the Supreme Court that the Conservatives had long yearned for and that the liberals feared." Justice Breyer's one sentence courtroom statement summed it all up: "It is not often in the law that so few have so quickly changed so much."
During the election year, we saw a growing awareness of the impact of presidential elections on the make-up of the Court. At the Republican political debates, the then four nominees for the presidency (John McCain, Mitt Romney, Mike Huckabee, and Ron Paul) were asked to name the Justices who modeled the type of Justices they would like to nominate. On this issue they all agreed. Three names were repeated like a mantra: Roberts, Alito, and Scalia. Thomas, whom they also prized, was not mentioned; they figured Republicans wouldn't get black votes anyway. Nor was Kennedy, because they claim that but for him, Roe v. Wade would long ago have been rejected.
But Kennedy became the swing judge in place of O'Connor. His votes became the dominant fifth vote in the bundle of 5-4 votes that saw the hard conservative takeover, knocking over not only Warren Court decisions, but even earlier decisions of the Roosevelt Court. Alito, O'Connor's actual replacement, is far to O'Connor's right, and far to Kennedy's right, as well. Alito joined Kennedy to uphold the federal Partial-Birth Abortion Ban Act and to treat campaign advertising by corporations and unions as core political speech, despite the restrictions imposed by the McCain-Feingold campaign finance law. Justice O'Connor would have voted to uphold Brown v. Board of Education and the Seattle and Louisville, KY, school integration plans. She was the author of the court's opinion in 2003 to uphold the affirmative action admissions plan at the University of Michigan law school. Alito and Kennedy rejected both Brown and those plans. Furthermore, the prosecution won in nearly every criminal case, upheld a federal anti-abortion law, and made it more difficult for citizens and shareholders to bring and appeal cases.
When the Court voted 5-to-4 to overturn a ninety-six-year-old precedent under which it was always illegal for a manufacturer and retailer to agree on minimum resale prices, the business community was overjoyed. It was the "Gang of Five": Roberts, Kennedy, Scalia, Thomas, and Alito against Breyer, Stevens, Souter, and Ginsburg. The legality of price maintenance will now be judged case by case for its impact on competition. Punitive damage verdicts were severely cut back. Robin S. Conrad of the United States Chamber of Commerce, a leader in the business community, said: "It's our best Supreme Court term ever."
The presidential debates this year saw McCain, the Republican candidate, come down against activist judges -- the code name for liberal justices -- the code name for justices who believe in Roe v. Wade. Conservatives like to divide judges into liberal "activists" and conservative nonactivists who interpret the law rather than making it. Anyone who follows the court knows that conservative judges are as activist as liberal judges -- just for different causes. The conservative Justices Antonin Scalia and Clarence Thomas are actually more activist than their liberal colleagues.
Lori Ringhand, a professor at the University of Kentucky College of Law, examined the voting records of the Supreme Court justices from 1994 to date. In the study, justices were considered to have voted in an activist way when they voted to overturn a federal statute, or one of the court's own precedents. The conservative justices were far more willing than the liberals to strike down federal laws -- clearly an activist stance, since they were substituting their own judgment for that of the people's elected representatives in Congress. Justice Thomas voted to overturn federal laws in thirty-four cases, and Justice Scalia in thirty-one, compared with just fifteen for Justice Stephen Breyer.
And by overturning the court's own precedents, the conservatives were far more activist. Justice Thomas voted to overturn precedent twenty-three times, and Justice Scalia nineteen times, while the court's four liberals each did so in ten cases or fewer.
Activism is neither good nor bad, neither right nor wrong. The Supreme Court is supposed to strike down laws that are unconstitutional or otherwise flawed. It is hypocritical for Republican presidential candidates to pretend that Roberts, Scalia, Thomas, and Alito are not activist, and turn to judicial activism into a partisan talking point, when the numbers show a very different story.
The entire dialogue, which tens of millions of voters and television commentators believe, is a lie.
Given the ages of the present members of the Court, it is reasonable to expect that the next president will have two nominations.
That's one of the reasons why who controls the Presidency and the Congress is so important.
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As speaker of the house we need a political firebrand what we have is a self serving milquetoast.
As for the faceless four on the bench They have already done enough to be impeached and tried for treason in a real America. That is the America that exist inside my heart. The America that chased the British down the road to Liberty from Lexington to Boston in 1775 all the way to Yorktown in 1781.
Yeah, I'm one of those idealist who still believe in the original American dream. The faceless four make a mockery out of that dream and if that were not enough they do with a smirk and a snide remark.
I pray I live long enough to see 1775 once more.
II think you have missed the mark entirely beginning with you definition of “activist” judges. Activism is not right or wrong left or right it is deciding cases without constitutional basis. The fact that this current court overturned precedent does not make them “activist” deciding cases based on emotion or the laws of other countries for instance does.
The majority opinion in Boumedienne v. Bush is not in accordance with the Constitution or precident. I read a lot about English common law and the Magna Charta, where are all of the references to the U.S. Constitution? You know the document they are supposed to reference. I had a law professor tell me once that if I had to argue a case based on common law that I had no case at all. This case had been decided by a unanamous court filled with FDR appointees in Eisenstrager. What does that make Justice Jackson a conservative?
You write, “The Supreme Court is supposed to strike down laws that are unconstitutional or otherwise flawed.” What does “otherwise flawed” mean? That the Court can decide based on whatever bias they have what is or is not a law? I thought that it was the Legislature that decides what is or is not a law. I think maybe you need to go back to law school and take US Constitution I again maybe this time you’ll read it.
Forget the idea of a Senate Democratic majority doing anything. It is the Democrats who helped put the right wing nuts in control in the first place. Just look up how most of the cowards voted.
The Democrats are afraid of their own shadows. Expecting "profiles in courage" politicians is delusional thinking.
"Roberts, Alito, Scalia and Thomas, all young men who have many decades to sit"
huh? Scalia is 72, the same age as McCain. Hardly anywhere close to being a "young" man. And he's not exactly the picture of physical fitness.
A term for McCain will mean another ultra right conservative in there. We'll be living in the dark ages if the Supreme Court gets much 'righter'. They are a bunch of right wing windbags as it is.
It is not that these elevated lawyers are such great or honorable men. It is that they have spent their lives appeasing the right people. That's right in politics they call it kissing butt. These guys have watched their Ps and Qs their whole careers with an eye on advancement in Washington Politics and how does a republican advance in Washington? By being sympathetic with corporations and their greedy policies.
Government
America has it's hands tied because we have no recourse were these guy are concerned that is why corporate owned politicians like Bush are so determined to get their guys in there.
"moderate-liberals like Stephen Breyer and Ruth Bader Ginsburg"
Aren't those the folks that thought is was just swell for the local government to take a citizen's home, and give it to a private developer because it would generate more taxes? We really need more justices like that.
Rumplestiltskin,
Not only that but the area that was to be developed as a result of that loss of "rights" still has not been developed it is sitting there empty.
For some reason, commentators--even progressive ones--seem to believe that we are "stuck" with the protofascist Roberts-Al
Let's start talking this up, shall we? IMPEACH KENNEDY, SCALIA AND THOMAS. 3 more vacancies for President Obama to fill. That would protect the Court for a generation. And it is WAY PAST TIME to do it, or the Constitution will go completely in the toilet.
Now the left wants to impeach supreme court justices to? Sounds like something Hugo Chavez would do. Why not just do away with the constitution and make Obama king?
Wow. Incredibly clever retort. What else ya got?
Heh ... so now the Constitution is important again and not "just a damned piece of paper?"
Here's a suggestion: At least be consistent. When teh Right is opportunistic in its stance on principles and laws, it comes off as a self-serving political machine.
Removing officials for incompetence is not, despite your perceptions, a "Hugo Chavez" option. If anything, blind allegiance to a person/party despiote principles would be more what you should be looking at in contempt.
Or does your Loyalty Oath forbid that?
At least it is constitutional. What would you call firing district attorneys that refuse to go after your political opponents in an election year? To me that sounds like something Saddam Hussein would have done.
Do you mean the Constitution, or the Leftist extrapolations off it?
HUH!!!!!!!
The "Scalito" members of the court have violated their oath of allegiance to the constitution. If we win big, we should pressurise the fascist members by pointing out this fact and threatening to begin impeachment proceedings if they continue to violate this oath. A vote in favor of the absolute power of government to detain people without process is a blatant violation of the rule of law.
you stated that scalia and thomas have been more activist
that should be fleshed out a little, there is no end of detail that we should go into there. that deserves to be explicitly spelled out ...
The SCOTUS has become the political enforcement arm of the ideological biases of the president. The court's size has not changed since 1869, and the slack rules governing appointments are too easily subject to gamesmanship and youth-packing. The appointment of one or more young judges of ideological bedfellows can even allow dead presidents to exert their will and influence across generations - from a far in their place in heaven or hell. Witness Reagan with his appointment of O'Connor, who held onto her job until a republican were again president.
Several prescriptions to fix this mess are needed, or this nation will continue to become more servile to the will and desires of a handful of ideological zealots.
1. Term limits for members of the SCOTUS.
2. Increase the number of judges of SCOTUS.
The above two items should be linked or associated to provide for orderly succession of judges.
For example, 11 judges, with 22 year limits. 13 judges with 26 year limits.
3. Each presidential term will require the nomination a fixed number of judges, either 1 or 2, now more. The longest serving judge is the one to be replaced. Link this with 1 & 2.
4. The total number of judges in the SCOTUS should be at least one more than twice the number of judges that can be appointed during any 3 successive terms of the presidency. This is to diminish the influence of one party's run in power upon the SCOTUS.
FDR tried your #2 idea in the 1930's. He got shot down. Your proposal is also a bit complex, cafemocha. People in the USA avoid thinking. They will become more confused if your proposal(s) become law. The Congress would create an even weaker & more complex plan too. If at 1st you don't succeed, forget it; it was a lousy idea in the 1st place?
larry lynch
There is an additional possibility, however slim....
The Supreme Court need not be limited to nine Justices.
FDR tried that and the money people said not only no but are you are of your fracking mind.
And they really need to be nonpermane
This out-of-step quality is only exacerbated by the sad truth that our so-called conservative judges are entirely unaware of or disrespecting the spirit and even the letter of so many laws, interpreting meanings that could be better upheld by even a first-year law student--or someone nominally familiar with American History and the Constitution and its evolution and expansion and the social environment in which these occured.
"Who watches the Watcher?" Somebody needs to. The so-called conservative judges take such liberal interpretation of the Constitution--and so obviously divergent, blatantly contradictory, that a middle school student can tell--that they should have been kicked out as self-serving, partisan, and/or senile, and they should be required to keep abreast of how the "new-fangled" real world works.
There needs to be a means to kick out those who put personal beliefs ahead of the Constitution's spirit and letter, who denigrate it to advance partisan, tunnel-visioned, and contrary opinions.
Shout it to the post menopausal white women who blinded by racism will vote for a man who will take away their rights.Say it loud to poor white men who wont be able to unionize for better benefits.P
Bingo. Exactly.
This is a good column. My only problem is that the "liberal vs. conservative divided court" rhetoric is so powerful that even as Mr. Garbus acknowledges that the current SCOTUS is conservative, he still refers to Ginsburg, Breyer, Stevens and Souter as "the liberals." They're not, except by comparison to their radical conservative colleagues. Stevens, who has the most liberal record on the current court, was nominated by Pres. Ford, and was a solid moderate to moderate conservative when appointed. His positions have not changed. Ginsburg was nominated only after Orrin Hatch told Pres. Clinton that she was acceptable to Senate conservatives. Why? Because of her moderate to conservative voting record on the D.C. Circuit. Garbus is absolutely right that the Court could use a true liberal voice; there hasn't been one since the early 1990s, when Brennan and Marshall retired. And it's a tremendous disservice that the right has so dominated the debate that moderates are described as liberal, and Kennedy the conservative is viewed as a moderate.
Right, the Supreme Court is liberal now just like the news media.
I would challenge the probable number, Assuming the next prez has the normal eight years two would be the minimum and least likely number. Eight years would put all the liberal wing into very likely retirement, and Scalia into an age that may compel him to retire. Thomas has muttered about the job and Kennedy may want to galavant with his Euro-pals. I venture to guess four justices, but the random "event" could make six possible.
There is an ironic possibility as well. Suppose Obama is elected, he could have four appointments and have no effect whatsoever on the Roberts GOP agenda.
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