Sunday, January 20, 2008

Politics and the Court

Will populist sounding winds of change steamroll the Conservative Court or will the Court steamroll the Populist? The thesis is explored here: (HT, How Appealing)

In keeping with the general rule that political change at the Court comes slowly indeed, the current rightward tilt of the Court is likely to last for the foreseeable future. Even if a Democrat wins election in 2008, it is unlikely that he or she will get to replace any of the conservative justices, thus tipping the Court in a more liberal direction. The two justices most likely to retire in the next four years are Stevens and Ginsburg, both members of the Court's more liberal wing. Thus, if a liberal appoints their successor, it will only preserve the status quo.

At the same time, however, the country's politics may well be on the verge of a sea-change. On the Democratic side, both Barack Obama and John Edwards are running on platforms centrally focused on the idea of bringing dramatic reform to our political system and to greater accountability for both government and business. Although perhaps less committed to these issues, Hillary Clinton, too, is likely to adopt these themes if she becomes the Democratic nominee.

All told, it would not be surprising if 2008 saw the election of a Democratic president ushered in on a somewhat populist reform platform, who will also enter office with substantial Democratic majorities in both houses of Congress. And if this happens, then the resulting reform coalition will run smack into an increasingly conservative Supreme Court whose decisions already betray deep hostility to the very kinds of reform such a reform coalition would favor.

The current Supreme Court, for example, is extremely hostile to campaign finance reform and has made it much tougher to hold businesses accountable for their wrongdoing in court. Yet campaign finance reform and greater regulation of business (including through lawsuits) are high on the reform agenda.

It is too soon, of course, to make any predictions about a titanic clash between the Court and the elected branches. But a few years ago, such a clash seemed unimaginable. It is not so now.


During arguments last week on the nation's strictest voter ID law, liberal-leaning Justice David Souter abandoned his usual Yankee reticence and became downright angry when more conservative justices suggested they might choke off a whole class of voter lawsuits. The question is whether groups � here the Indiana Democratic Party and American Civil Liberties Union � can broadly attack an allegedly discriminatory law before it takes effect, without waiting until individuals have been affected.

If the majority adopts such a restriction, Souter declared, "there can never be a (broad-based) challenge to a registration requirement, a voter ID requirement."

"The horse is going to be out of the barn," Justice Ruth Bader Ginsburg added. "They will have the election, and … the result will be skewed in favor of the opposite party."

AND REMEMBER how the previous term ended:

The heated rhetoric on the bench last term carried over to opinions at the end of the 2006-07 session when the conservative majority dominated and the liberals were relegated to angry dissents. The court curtailed abortion rights, limited schools' racial integration plans and carved out another exception for student speech rights.

"It is not often in the law that so few have so quickly changed so much," Breyer said, delivering a dissenting opinion.

BUT this is what may be coming around the curve:

After arguments in December in that case, a majority including Kennedy appeared ready to rule that the detainees can protest their confinement in U.S. courts.

In other recent oral arguments, Kennedy appeared more likely to go to the right. In the voter ID dispute, he characterized the law's burden on potential voters as "a minor inconvenience."

"This case demonstrated again how deeply divided the court is," says Steven Shapiro, the ACLU's legal director, after attending arguments in the Indiana case. "The court was obviously quite aggressive in its questioning."

When justices accepted the voting rights and lethal-injection cases for review, it looked like a positive development for civil rights groups and death penalty foes. In the former, the justices agreed to review Indiana's law requiring people to present a government-issue photo ID before voting. Challengers said the law particularly hurts poor and minority voters. In the latter case, when the justices took appeals from two Kentucky death row prisoners, they prompted a temporary halt on executions.

The oral arguments in the cases, however, indicated that eventual rulings might be more to conservatives' liking. A majority did not seem ready to re-evaluate lethal injections. Instead, some justices seemed poised to reject the claim that the lethal-injection mix is "cruel and unusual punishment," and some seemed eager to end the moratorium on executions.

"I'm very reluctant to send (the case) back to the trial court so we can have a nationwide cessation of all executions," Scalia said.

In an Internet child pornography case heard in October, the justices appeared amenable to upholding an Internet anti-porn law for the first time in a decade.

And then, of course, there is this:

the initial wave of reaction to the suit treated Padilla not as the little guy, but as the strong-arming giant. Or if not Padilla himself, then the human rights clinic at Yale Law School—which filed suit on his behalf. Law professor and blogger Jonathan Turley called the filing "highly questionable." Law professor and blogger Orin Kerr, finding Yale's involvement in the suit "particularly interesting" and noting that Yoo is a Yale alumnus, wrote, "I don't think Yale Law School ends up looking very good on either side of this one." And then the Wall Street Journal really piled on, calling the suit a "political stunt," "nasty business," and snidely speculating that Yale Law School Dean Harold Koh must be "proud of suing an alumnus [Yoo] on behalf of a terrorist."

Update: And this on same topic:

The past week has included a lot of blog action about the lawsuit Jose Padilla (and his mother) filed against John Yoo – for example here and here and here and here and here and here.

And this:

Jan. 18 (Bloomberg) -- The U.S. Supreme Court gave us more evidence earlier this week of what people in the stock market already knew: This is no time to be an investor.

People who buy shares in companies that defraud them can't sue those who may have helped in an illegal deed, the court said. Money lost because Smith Co. and Jones Co. lent a hand while Acme Co. cooked the books? The court says tough luck unless Smith and Jones somehow led you to buy Acme's stock.

This judicial gift came via the Jan. 15 decision in Stoneridge Investment Partners LLC versus Scientific-Atlanta Inc. and Motorola Inc. Stoneridge, a Malvern, Pennsylvania, money manager, alleged that the two cable-television box-makers helped pull off an accounting fraud that let Charter Communications Inc. show more revenue than it really had. The court ruled on whether Stoneridge could sue so-called abettors, not on whether the allegations were true.

Thanks Howard, for collecting these articles in one place.

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