The Karl Rovification of the Supreme Court
As I noted last week (here), Tom Goldstein is projecting the current Supreme Court Term as VERY conservative (here). Jeff Toobin makes the same point in The New Yorker (available here, and while you're over at The New Yorker, check out Seymour Hersh's utterly frightening account of what happened to General Taguba for uncovering the truth about Abu Ghraib, but then come back to Dorf on Law). Here I'll tentatively observe something about the character of the 5-4 decisions we're seeing. Perhaps a close reading of all of this Term's cases wouldn't bear this out, but my subjective and informal impression is that when the Court splits 5 (Roberts/Scalia/Kennedy/Thomas/Alito) - 4 (Stevens/Souter/Ginsburg/Breyer), the 5 are basically ignoring or dismissing objections raised by the 4.
Gonzales v. Carhart is a nice example. The dissenters were practically running around with their hair on fire saying that there was no way to reconcile the decision with the 2000 decision in Nebraska v. Carhart; yet Justice Kennedy's opinion, while drawing a plausible distinction with respect to the notice issue, basically punted on distinguishing the Nebraska case with respect to the health exception. The majority could have said it was overruling the Nebraska case, but for their own reasons they didn't want to, so their response to the dissenters was the jurisprudential equivalent of a shrug.
Likewise in last week's ruling in Bowles v. Russell, in which the Court held that the 14 day maximum extension for filing a notice of appeal is jurisdictional, thus throwing out the appeal of a man who filed two days late, after being told by the district judge that the deadline was still a day away. Justice Souter just can't seem to get the majority to focus any attention on the fact that recent unanimous decisions reject the definition of "jurisdictional" deadlines that Justice Thomas's opinion adopts. The closest Justice Thomas comes to addressing Souter's objections is to dismiss them as dicta. (My FindLaw column for tomorrow addresses the merits of Bowles. Hint as to my take: I call the majority decision "Kafkaesque.")
What seems to be happening on the Court has some similarity to Karl Rove's political strategy of solidifying the base and ignoring anybody to the left of the exact median vote. Like President Bush, Chief Justice Roberts is happy to have bipartisan support for his decisions, where bipartisan means that he rules as he wants and is happy to have the liberals join him sometimes. The nine Justices are not the entire American electorate, of course, and so the strategy is more predictable at the Court. As long as Roberts et al can get Kennedy's vote, they don't really care what Stevens, Souter, Breyer or Ginsburg think.
Sure, one occasionally sees an unusual lineup, and contrary to Toobin's suggestion otherwise, none of this appears to be personal. Justice Ginsburg may be expressing professional annoyance when she reads her dissents from the bench, but she can still socialize with the Scalias. And Justice Breyer's standard stump speech continues to include the assurance that the Justices play nicely with one another. But the continued observance of inter-personal niceties should not obscure the fact that at a jurisprudential level an important shift may be underway.
Gonzales v. Carhart is a nice example. The dissenters were practically running around with their hair on fire saying that there was no way to reconcile the decision with the 2000 decision in Nebraska v. Carhart; yet Justice Kennedy's opinion, while drawing a plausible distinction with respect to the notice issue, basically punted on distinguishing the Nebraska case with respect to the health exception. The majority could have said it was overruling the Nebraska case, but for their own reasons they didn't want to, so their response to the dissenters was the jurisprudential equivalent of a shrug.
Likewise in last week's ruling in Bowles v. Russell, in which the Court held that the 14 day maximum extension for filing a notice of appeal is jurisdictional, thus throwing out the appeal of a man who filed two days late, after being told by the district judge that the deadline was still a day away. Justice Souter just can't seem to get the majority to focus any attention on the fact that recent unanimous decisions reject the definition of "jurisdictional" deadlines that Justice Thomas's opinion adopts. The closest Justice Thomas comes to addressing Souter's objections is to dismiss them as dicta. (My FindLaw column for tomorrow addresses the merits of Bowles. Hint as to my take: I call the majority decision "Kafkaesque.")
What seems to be happening on the Court has some similarity to Karl Rove's political strategy of solidifying the base and ignoring anybody to the left of the exact median vote. Like President Bush, Chief Justice Roberts is happy to have bipartisan support for his decisions, where bipartisan means that he rules as he wants and is happy to have the liberals join him sometimes. The nine Justices are not the entire American electorate, of course, and so the strategy is more predictable at the Court. As long as Roberts et al can get Kennedy's vote, they don't really care what Stevens, Souter, Breyer or Ginsburg think.
Sure, one occasionally sees an unusual lineup, and contrary to Toobin's suggestion otherwise, none of this appears to be personal. Justice Ginsburg may be expressing professional annoyance when she reads her dissents from the bench, but she can still socialize with the Scalias. And Justice Breyer's standard stump speech continues to include the assurance that the Justices play nicely with one another. But the continued observance of inter-personal niceties should not obscure the fact that at a jurisprudential level an important shift may be underway.
posted by Michael C. Dorf @ 12:17 AM
6 Comments:
At 8:44 AM,
egarber said…
This post has been removed by the author.
At 8:45 AM,
egarber said…
I wonder if this majority will hold if new executive power cases reach the high court, particularly in the area of "war on terror" detainees.
Somebody correct me where I blow this, but I recall Scalia partnering with Stevens in the Hamdi case (2004?) to say the Court didn't go far enough in protecting civil liberties for Americans during "war".
As I recall, the majority basically said that an American *could* be held as a combatant provided a competent tribunal made such a finding. But Scalia / Stevens wrote that absent a formal suspension of habeas corpus, Hamdi should either be charged or released. Scalia criticized others on the court for trying to create an ad-hoc process.
I wonder -- or maybe I'm just hoping -- if that means we could see some strange bedfellows in future executive power cases dealing with the "war on terror".
At 2:32 PM,
PG said…
mdorf,
What do you think about the theory that the Court, particularly the conservative end, is trying to push Congress to write statutes better by interpreting them in an almost absurdly strict manner? I think this is a reasonable explanation of a unanimous decision such as Long Island Care at Home, and you get a flavor of it in Ginsburg's Ledbetter dissent when she calls for legislative change to clarify the tolling period even as she rips on the majority's interpretation.
egarber,
I hear you with Scalia on Hamdi, but I think inasmuch as the Republican Congress enabled some of the executive powers, as in Boumedienne, Scalia would say that it's all A-ok. His concern was kind of what I've described above, that neither the executive nor the judiciary short-cut the legislature's responsibility to write competent legislation that covers what must be done for the nation. If Congress specifically suspended habeas for persons determined to be "(unlawful) enemy combatants," then Scalia probably will say they did their job and there's no further objection to make.
At 3:44 PM,
Michael C. Dorf said…
pg: There is an old argument for formalism in statutory interpretation as a means of disciplining Congress, but it's open to at least two very powerful criticisms:
1) What gives the Court the power to tell Congress how to do its job (absent an unconstitutional statute), as opposed to figuring out what Congress has actually done?
2) The argument for formalism assumes that Congress is closely attentive to what the Court does, when in fact there are institutional reasons internal to Congress that may sometimes preclude statutory clarity, regardless of the court-imposed incentives.
At 7:35 PM,
Sobek said…
"What gives the Court the power to tell Congress how to do its job (absent an unconstitutional statute), as opposed to figuring out what Congress has actually done?"
Why is that worse than the Court simply doing Congress' job for it? That would have been the effect of Ginsburg's opinion in Ledbetter had she carried the day. Her view of gender discrimination essentially writes the statute of limitations out of the statute entirely (how could the limit ever run under her reading?), and yet she doesn't seem to have any qualms about simply assuming Congress' duties and legislating something closer to her preference.
"The argument for formalism assumes that Congress is closely attentive to what the Court does..."
Heh. That's an obviously flawed assumption.
At 9:30 PM,
Howard Wasserman said…
A third criticism of the absurd- formalism-leads-to-better-statutes argument, at least as it pertains to Bowles:
Congress could not have been any clearer that the statute was not jurisdictional because it never mentioned the word "jurisdiction." How could Congress write the statute any more clearly? Must it specifically state "This statute is not jurisdictional"? *That* seems an absurd burden.
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