The Future of the Court August 14, 2007
Posted by Sobek in Law.trackback
When the Supreme Court ended its latest term, we were treated (read: subjected to) numerous articles and talking heads decrying the Court’s shift to the right, and how none of us will have any rights within five years, and etc. etc. our nation is going down the crapper and the Constitution is getting shredded.
Whatever. Granted, I sure hope the Court turns hard-core conservative and rules us with the sweet iron fist of unabashed tyranny, but alas we’re not there yet.
I’m reading The Brethren, by Woodward and Armstrong, which is in insider look at the Warren Burger Supreme Court from 1969 to 1975. The book starts with the nomination of Warren Burger by recently-elected Richard Nixon, and liberal Abe Fortas’ resignation in disgrace. Nixon got a stellar four nominations for the Supremes, and he filled those slots with Burger, Harry Blackmun, Lewis Powell and William Rehnquist. Two years into the Burger era, I find the following:
“…[Thurgood Marshall] returned to his chambers that day a beaten man. For the first time, his clerks saw him truly depressed about the future of the Court. Powell and Rehnquist were going to make a big difference. It was not just a close vote in one case. It was the first wave of full-scale revisionism. The work of the Warren Court would be destroyed.” (P. 179).
Again, by this time, Nixon had picked four of the nine justices.
But Marshall was wrong, as we know. This passage describes events merely one year before Roe v. Wade was decided. Three of Nixon’s four justices voted to invent a right to an abortion.
Since 1972, Ford appointed John Paul Stevens, Reagan appointed Antonin Scalia, Sandra Day O’Connor and Anthony Kennedy, Bush I appointed David Souter and Clarence Thomas, and Clinton appointed Ruth Bader Ginsburg and Stephen Breyer. In all, six justices appointed by Republicans, compared to two justices appointed by a Democrat (Carter got no appointments — proof that there is a just and merciful God in heaven). Consider that between 1969, when Burger was appointed, ten justices were Republican appointees, and only two were Democrat appointees. And yet, contrary to Thurgood Marshall’s premonition in 1972, his prediction has never yet come true. We have not had a truly “conservative” court at any time in that thirty year period (thanks in no small part to the fact that Reagan, for all his greatness, truly sucked at picking judges, and Nixon was worse).
Bush II picked Roberts and Alito, who everyone is assuming are and will remain conservatives for the long haul. They replaced a Nixon-appointee and a Reagan appointee, respectively, both Republicans.
Long experience has me convinced that liberals panicking that the judicial sky is falling, and that our great republic is on the verge of utter destruction, are no more grounded in reality than their rampantly activist [obtuse] legal opinions.
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Innocent Bystanders 
the sweet iron fist of unabashed tyranny
That made me giggle. Best description I’ve heard so far of the strict constructionist approach.
Never mind that Constitutional literalism is what actually preserves our liberty.
I also read The Brethren, by the way. It was fascinating, but kinda depressing.
It is depressing. I’m taking it with a grain of a salt — the authors are clearly liberals, although they make a good effort of writing as neutrally as possible. They have a strong tendency to refer to what “the clerks” thought about the cases, and “the clerks” are monolithically liberal, always pushing even the most conservative justices to the most radically liberal positions.
But yes, it’s also fascinating. I can speak at some length about our current nine, but I know considerably less about the previous guys. I’m glad to get a better foundation in my legal history.
In all fairness, “the clerks” were the primary sources, so the book necessarily reflects their agenda. And probably “the clerks” give us a good idea of what was going on at the time. Most people don’t realize that law clerks one year out of school are running the Supreme Court.
True, and that comes out a lot in the text — much of it is highly anecdotal, and is clearly the recollection of a clerk’s interaction with the justice.
But which clerks? Did they all think in lockstep? Were Rehnquist’s clerks as liberal as Brennan’s clerks?
None of the clerks are named, and I assume there’s a very good reason for that — most likely none of them would have spoken to Woodward had it not been for a strict promise of anonymity — but I have trouble believing that the only diversity of opinion on the Supreme Court at the time was among the Justices themselves.
“Never mind that Constitutional literalism is what actually preserves our liberty.”
A point that shouldn’t be lost on liberals as often as it is. Justic Douglas was as liberal as they come, but in describing a death penalty case, the book says:
“Douglas rejected the evolving standards argument. Individual rights and protections of the Bill of Rights were absolute. They did not change over time. Douglas had spent his career arguing that point. To give in on it would open up the Bill of Rights to judicial reinterpretation. The Court could as easily cut back on freedoms as extend them.” P. 208.
There’s the flaw with judicial activism. Granting that the Constitution never expressly protects the life of a fetus, it also never expressly protects a right to abortion. If, in 1973, seven people are willing to stretch the Constitution to invent a right to an abortion, is there any reason that seven different people can’t stretch the same Constitution to invent a fetal right to life? If the Burger Court has the power to invent defendant rights in criminal cases, as a reaction to changing social norms, why doesn’t the Roberts Court have the power to curtail terrorists’ rights as a reaction to international, stateless terrorism?
great timing!!!!
Court dorks are putting me to sleep.
In many arcane areas of the law, the importance of a Presidential appointment to the Supreme Court really boils down to one thing: clerk selection.
These are the guys who play basketball together in the Court’s gym and decide how the tough cases should be decided.
do they shower together as well Michael?
do they shower together as well Michael?
Yes, WP, indeed they do. And when a Supreme Court clerk wants a back scrub, there is always another obliging clerk.
I’m sure you can guess how this works out.
When Bob Woodward published this book in 1979, he was already famous for his role in bringing down Nixon. It is entirely possible that the only clerks who would speak with him were liberals, giving Woodward a skewed data set.
Laura Ingraham was a clerk, so was Debbie Schlussel, I frankly vote for Laura, but Debbie has nice juggs.
My databanks have some scattered historical recollections, beyond the standard stuff you learn in history classes about Marbury v. Madison and Plessy v. Ferguson, that sort of thing. I’m fairly up on the Warren court, but it may be cause I’m a little older.
From a strictly layman’s perspective I find Korematsu v. United States as one of the most remarkable decisions the Supreme Court has ever made. I seem to recollect that many years later Korematsu’s conviction ended up being overturned based on the government supplying knowingly false information to the SC when it made its ruling. Is that right my fine feathered barristers?
This is all new to me, and fascinating.
But are you serious about first year clerks “running” the Court? Do you mean administratively or ideologically or how?
*braces self*
hookers and blow, mostly.
Michael is exaggerating, but only a little. The Justices generally don’t do their own research, and some don’t write their own drafts. They tell a clerk to do the research and writing, and then makes changes to the drafts as they come in.
But of course the Justice votes, not the clerks. If the clerk prefers an outcome that the Justice does not, then the best the clerk can do is try to soft-pedal the written language, or limit the scope. If the case isn’t something the Justice cares about, there will be very limited review, if any, so that a clerk literally controls the opinion.
A friend of mine who clerked at the Fifth Circuit tells me a friend of his managed to quote a Harry Potter book in an opinion. The judge didn’t catch it, so it stayed in. J.K. Rowling has made her mark on American jurisprudence. (No, Mrs. Peel, I have no idea what the quote was).
Just as important, the clerks perform a critical filtering function. SCOTUS gets a large number of cases, far more than 12 guys can deal with. The clerks do the initial screen to determine which cases might merit the court’s attention.
SCOTUS gets a large number of cases, far more than 12 guys can deal with.
12? Who are the other 3 besides the justices?
Sobek, I think the Billy Madison citation was better…
it’s the Shadow Court justices.
They’re probably Masons too.
Oops.
I wonder where the heck that came from.
/senility
The Billy Madison cite was so awesome because it quoted at length from a well-known movie, and expressly referred to it. The Harry Potter cite is a stealth cite.
As for the extra three Justices, well, let’s just say it’s no coincidence that the word J-E-W has three letters in it.
The first rule of Shadow Court is to not talk about Shadow Court.
Shouldn’t lawyers be required to know how many SC justices there are? Isn’t that on some test you take somewhere down the path to becoming an attorney?
It Oughta be a Law™ (thanks and a tip o’ the hat to Michael).
“Isn’t that on some test you take somewhere down the path to becoming an attorney?”
No. We get tested on people with improbable names buying and selling Blackacre.
Sobek speaks the truth. They never ask you how many Supremes there are. I guess they just *assume* you know that. 🙂
No one ever even taught us who the Justices were. You just kind of pick it up from reading the cases.
some of you pick it up… yeah.
I guess they just *assume* you know that.
Don’t forget, “Whenever you make an assumption, you make an ass out of you and umption”.
(Bonus points) What movie is that from?
It’s here
RG, I love that line. Samuel L. Jackson said that in a film where he was helping Geena Davis — The Long Kiss Goodnight. We own the DVD. Geena was an assassin with amnesia.
See, I can remember important stuff.
Yeah, that’s one of the most underrated movies I can think of. Mrs. G and I watch it about once a year. (not with the Grandkids).
I think we’ve actually talked about how underrated that movie is in the past. I think it’s a hoot.
Here’s another favorite quote from the movie:
NSFW, It’s a guy talking about his elderly sister’s Pomeranian
I know nothing of “law” which, well, basicaly proves the FLAWS in most of these decisions (you can’t be of by and for, if the people you are of by and for don’t know what the hell you are talking about) but I did see a biographer of blackmunn on bookTV, and I spent the entire time furious.
Basicaly Blackmunn spent his carreer DELIBERATELY and EAGERLY underming the powers of both the executive, and the legislature.
The biographer depicted it as a “great mind acting within his capacity” or something like that, but sometimes, that isn’t your friggen job. I can snap a 9 year olds neck, and thats “within my capacity” but I don’t do it, cuz it isn’t right.