Tom Goldstein has a nice post on SCOTUSBlog explaining why almost everythign you read about the Supreme Court is wrong. I say “almost” because many of his points have been made on this blog repeatedly (see, e.g., here and here). Among other things, he notes that ideological partisans overstate the degree to which the Court veers to one direction or another, and explains why claims that the Roberts Court is particularly right-wing or “pro-business” are vastly overstated. I have some quibbles with his analysis here and there, but his post remains a useful reality check on much of the rhetoric we heard surrounding the Kagan confirmation hearings are misleading if not plain wrong.
I have a slightly different take than Goldstein on the extent to which the Roberts Court remains, by and large, a “minimalist” court, and how Citizens United fits in to that formulation. As a general rule, this remains a court that tends to rule narrowly, and this is largely because the Chief Justice, Justice Alito, and sometimes Justice Kennedy have a preference for narrower rulings and smaller steps. But narrow rulings are not always possible. Sometimes the legal questions cannot be neatly divided. In such cases I think the Chief Justice has shown a willingness to stretch the law in order to decide a case narrowly, as occurred in the NAMUDNO voting rights case, so long as such a holding will unify the Court. Where a strained, narrow ruling will not unify the Court, however, he will opt for what he sees as the more correct holding instead of adopting a narrower holding for a narrower holding’s sake. Citizens United is a case in point, for while there were ways in which the case could have been decided on narrower grounds, the dissent made quite clear the decision would have remained 5-4.
Another point I would make, that I have made before, is that a greater proportion of the Court’s right-leaning decisions have been the sort that are correctable by Congress. So, for instance, controversial cases like Exxon v. Baker (punitive damages), Ledbetter (statute of limitations for equal pay claims), and the recent arbitration cases that Senator Franken is concerned about, are all reversible by legislative action. Indeed, Ledbetter has already been reversed. The larger left-leaning decisions, on the other hand, have been constitutional decisions that Congress cannot reverse. See, for example, Boumediene, Kennedy v. Louisiana, and Graham v. Florida, just to name a few. Obviously there are exceptions — Congress can’t overturn Citizens United or Heller, but it can reverse Massachusetts v. EPA (other than it’s standing holdings) — but I think this is a fair generalization of how the Roberts Court has behaved thus far.
Of course all of this is subject to revision. The Roberts Court is a work in progress, and the change in Court personnel will introduce new dynamics, as will a different combination of cases and issues that come before the Court. But I think, at present, we can characterize the Roberts Court as a moderately conservative minimalist Court (except when its not).
false seriousness says:
I think your theory is startling weak. There are so many exceptions, it doesn’t work – including Kelo.
July 2, 2010, 10:02 amSteven Lubet says:
Can you please explain how that approach squares with the Chief’s claim that he is only an umpire? I don’t think there is any theory of umpiring that allows “less correct” holdings for the sake of “unifying” the crew.
July 2, 2010, 10:17 amwolfefan says:
In real life when there is a call that could go either way, umpires and referees tend to give the benefit of the doubt to the bigger name, the richer player, the better team, etc. Some sportswriters like Michael Wilbon argue that this is exactly as it should be. What this says about Roberts’ analogy probably depends on your viewpoint. It may respond to Stephen Lubet’s question as well.
July 2, 2010, 10:20 amruuffles says:
Ugh the Doe v Reed (and disclosure in CU) case this term further reinforces the fact that the umpire analogy was just a soundbite and meme. If Scalia and Thomas are umpires, how did they reach diametrically opposite conclusions? The same for Hamdi v Rumsfeld.
July 2, 2010, 10:24 amBama 1L says:
They called ‘em like they seen ‘em.
July 2, 2010, 10:56 amyankee says:
I’ve never really understood the idea that neutral or objective judging is like umpiring. The definition of the strike zone in the rules of baseball is quite precise: there’s not that much room for subjectivity. In practice, the actual location of the strike zone is wherever the umpire feels like it is, and varies wildly from umpire to umpire and day to day. MLB has displayed no interest in getting umpires to enforce the strike zone as defined in the rules, and there isn’t any fan demand for them to do so.
July 2, 2010, 11:11 amB.D. says:
Kelo was decided by the Rehnquist Court.
July 2, 2010, 11:14 amB.D. says:
The umpire analogy is imperfect, but I understand it.
An umpire might be a fan of one of the teams involved. But he must call the game impartially, even if it means he doesn’t like the outcome. A strike is a strike, and a ball is a ball.
Just the same, the law is the law. It must be interpreted honestly, without concern for preferred results.
July 2, 2010, 11:21 amJD says:
Or Parents Involved, or Carhart II (although that’s slightly different, as it upheld legislative action). It’s an interesting theory, but I’m not sure it’s quite borne out.
July 2, 2010, 11:33 amOnewonders says:
Jim Joyce = Roger Taney?
July 2, 2010, 11:42 amSmooth, like a Rhapsody says:
The analogy to umpires is reasonable, I think. Sure umps have different strike zones, but the point of the anology is that you don’t change your strike zone based on who is batting.
Thus, e.g., Scalia, the strict Jesuit boy, votes to strike down a law against flag burning, even though you know he would vehemently object to that behavior as a citizen.
Stevens, (though T. Marshall was, of course, the most egregious example) whose strike zone changes with the litigants, rules with his heart and votes to uphold the law.
Also, you have occasionally have extremely tight–even sui generis–cases, like Bush vs. Gore. No analogy is perfect–that is why it is only an analogy.
July 2, 2010, 11:47 amNunzio says:
“Can you please explain how that approach squares with the Chief’s claim that he is only an umpire? I don’t think there is any theory of umpiring that allows “less correct” holdings for the sake of “unifying” the crew.”
When the crew has to travel across country for the next day’s game following a day game, often the “unifying” calls are to get the game over with as quickly as possible.
You’ve got to give it to Roberts, the umpire analogy was terrific politics because it played well with the public. The guy deserves to be Chief Justice for that reason alone.
July 2, 2010, 11:48 amJonathan H. Adler says:
That’s an interesting question. If I were wedded to the umpire analogy, I’d note that umpires often conference on close calls and sometimes reach a consensus on how to rule. Certainly that happens in football, and it sometimes results in overturning the call that was made during the play. So sometimes an umpire or referee goes along with what he believes is an incorrect call out of deference to colleagues. I suspect the dynamic is quite similar — stay with the initial, presumptively “correct” call unless there is a broader consensus/super-majority that it is wrong.
I am not wedded to the umpire analogy, however, so let me make two additional points. In trying to describe the Chief Justice’s behavior, I think that he places a higher value on unanimity than do some other judges (say, Thomas and, to a lesser extent, Scalia). So I believe that, as a descriptive matter, the Chief is more willing to go along with a narrower opinion that is, in his view, less correct than some others. Similarly, I believe he and Alito are, on the margin, more deferential to precedent than Scalia and Thomas. These characteristics are part of what make him a minimalist. I’m not trying to justify his behavior, but to explain it.
Second, umpires — or at least the home plate umpire — is a unilateral decision maker. The Supreme Court, on the other hand, operates as a committee. This inevitably results in a different decision-making dynamic in which getting a case absolutely right is pitted against other values, including collegiality and majority-building, that must be considered in any collective decision-making enterprise. As I explain to my students, this explains why dissents or solo opinions are often more intellectually satisfying than majority opinions. Majority opinions are the product of negotiation and compromise, whereas so opinions are not, so the latter are able to be more coherent and consistent by comparison. If a justice has a preference for unanimity, which I believe the Chief does, this will tend to encourage narrower rulings, and (I suspect) vice-versa. This is not an ironclad rule or axiom, but I do think it is an observable tendency in his behavior as a justice to date.
JHA
July 2, 2010, 11:53 amJay says:
I agree there are flaws in the umpire analogy, but this is kind of a silly criticism of it — akin to a lot of people who seem to believe that Roberts said “computer” or “robot” rather than “umpire.” In umpiring, or officiating any other sport, there are going to be some things that are clearly right and wrong, and other calls involving discretion about which good faith officials could disagree.
July 2, 2010, 11:53 amruuffles says:
That’s why I said diametrically opposite. Unlike the other six or seven justices in Hamdi or Doe, neither Scalia nor Thomas made any suggestion that it was a close call. A close call might be Scalia’s concurrence in Raich.
July 2, 2010, 12:04 pmruuffles says:
Then how do you explain Alito’s dissent in US v Stevens?
July 2, 2010, 12:07 pmJonathan H. Adler says:
Diametrically opposite, unlike umpiring in which the choices are so nuanced? (safe/out, ball/strike, etc.) There are good reasons to criticize the umpire analogy, but this is not one of them.
JHA
July 2, 2010, 12:12 pmfalse seriousness says:
That’s true.
I was reacting to Adler’s assertion that left leaning decisions are not correctable, as opposed to the right leaning decisions that are. I read that more broadly than just Roberts’ court, because it’s one of those shibboleths that’s been floated about.
July 2, 2010, 12:19 pmDavid Welker says:
Adler:
When we used to be able to pass legislation with simple majorities in the Senate, noting that statutory decisions are reversible by the political branches might actually make more sense in saying that maybe getting such decisions wrong does not matter that much. In a world where an extraordinary supermajority is required to pass ordinary legislation and it is therefore increasingly difficult to reverse Supreme Court interpretations, that argument doesn’t really deserve very much weight.
Note that one could make the argument that Constitutional decisions don’t matter that much either. After all, if we disagree with a Supreme Court decision, we can always pass a Constitutional Amendment as was done in response to Chisholm v. Georgia. But even though there is precedent in amending the Constitution to reverse such decisions, we recognize that this remedy is more powerful in theory than in fact. The massive difficulty of passing Constitutional amendments counsels for restraint in Constitutional interpretation. Now, the massive difficulty of passing ordinary legislation counsels for more restraint in statutory interpretation.
So, the Court’s needs to show restraint in both Constitutional interpretation and statutory interpretations. In statutory interpretation, the Court should lean away from interpretations that upsets the status quo and especially those that would tend to render the underlying law useless in many cases. We cannot depend on the political branches to correct such errors given the massive dysfunction that has been introduced by modern uses of the filibuster in the Senate. Also, this counsels for more examination of legislative intent in statutory interpretation; one cannot assume that statutory interpretations contrary to the intent of Congress will be fixed.
A final point. I hope you are right about the Roberts court. I hope that it is inclined to show restraint in the future despite what it has done in this past term. But unfortunately, I think given Citizen’s United which was an extremely broad decision where no restraint was exercised, I think you are probably wrong about its inclinations going forward.
July 2, 2010, 12:24 pmA.W. says:
i have said for years that news coverage of our courts is absolutely abysmal. They often literally don’t understand what even happened in a given case.
maybe all those young law students now facing a crushing legal market, should consider going into journalism instead? then they could bring some actual expertise into it. sure that’s the expertise of people who have barely graduated law school, but compared to the usual idiots that is a big improvement.
Of course there are alot of law blogs that do understand this stuff and get it right. and then there are people like Dahlia Lithwick who is so ideologically blinkered she actually harms people’s ability to understand the facts. i mean her silly coverage of the oral argument in heller didn’t even try to understand the points the justices were making. Agree or disagree, they were having a fairly serious discussion and she was just playing a clown horn.
another oaisis of sophistication is law.com. Can’t recommend it enough. they rarely make the kinds of amateur errors that the mainstream press makes.
July 2, 2010, 12:43 pmruuffles says:
An umpire would say “well yes it’s very close, right on the line, but I would have to say it’s a ball/strike.” This is not what Scalia and Thomas say. They assert that it’s not a close call at all and it should be obvious what the answer is.
July 2, 2010, 12:49 pmDavid M. Nieporent says:
Of course, what Adler actually asserted was that a “greater proportion of the Court’s right-leaning decisions have been the sort that are correctable by Congress… Obviously there are exceptions … but I think this is a fair generalization of how the Roberts Court has behaved thus far.” So finding an exception doesn’t exactly refute a claim that explicitly says “there are exceptions.” (And the entire post was about the Roberts Court, so I don’t know why you’d read it more broadly than that.)
July 2, 2010, 12:55 pmDavid Welker says:
Actually, any “wrong” decision by the Supreme Court is “correctable.” The only question is how difficult it is to do the correcting.
July 2, 2010, 1:03 pmfalse seriousness says:
You are right that Adler slathers his post with qualifiers, but he’s using a shibboleth which floated around pre-Roberts.
July 2, 2010, 1:08 pmBRM says:
There is a big difference between deciding a case narrowly because you believe in judicial minimalism, and deciding a case narrowly to keep a majority or build consensus. The latter is not minimalism at all. And to decide that “we might as well go for broke and rule extremely broadly because we won’t get any more than five votes for narrower rulings” is nowhere close to minimalism.
July 2, 2010, 1:17 pmJonathan H. Adler says:
I was not making a claim about left and right-leaning decisions in general. Rather, I was describing the general tendency among the left- and right-leaning decisions of the Roberts Court thus far. The same would not be true about the Rehnquist Court, for instance, due to the large number of federalism cases in which conservative majorities limited the scope of legislative power. To say that the right-leaning Roberts Court’s decisions are more restrained in this fashion is also not necessarily to praise them. See, e.g., my co-bloggers comments on the Comstock decision. I think that case was wrongly decided, but it was also more restrained than a “correct” opinion would have been. My aim in the post above was to be descriptive, not normative.
Welker —
How difficult it is to overturn an erroneous Supreme Court decision is a matter of degree. It may never be easier, but as the quick Congressional action to overturn Ledbetter shows, it is much, much easier to overturn an erroneous statutory decision than an erroneous constitutional decision.
JHA
July 2, 2010, 1:24 pmSteven Lubet says:
I understand that you are not wedded to the umpire analogy, Jonathan — not thoughtful person would be. But some conservatives continue to use it to beat up liberals, even though it should be obvious that even its originator does not really believe in it.
But I still have to question one of your other points. You note that the Supreme Court, unlike a home plate umpire, operates by committee and that compromises are sometimes necessary to hold a majority. True enough, but the subject at hand is the difference between ruling by a majority or by unanimity — so holding the majority doesn’t really come into play.
What, then, could be the virtue of getting the law wrong (or less right) in order to attract a super-majority? Isn’t that just a version of writing one’s non-originalist preferences into the law?
Or could it be instead that there is a range of correct answers to most legal (and constitutional) questions, and that a justice’s preferences necessarily play a part in every opinion — not matter how much certain justices proclaim the contrary?
Just asking.
July 2, 2010, 1:50 pmDavid Welker says:
But this argument has much less weight than it used to.
So, when my law school professor John Manning said to me in an argument (and I paraphrase) that one should generally not resort to Congressional intent in statutory interpretation because it is difficult and anyway if the Court gets Congressional intent wrong Congress can just correct it anyway, I bought into this argument at the time. Now, however, I do not agree with this argument at all.
Recall that the Ledbetter reversal only got a few votes from Republicans in the Senate. One cannot expect either party to have both the majority they need in the Senate and control of the Presidency to reverse Supreme Court decisions that go against the Congressional intent of the original statute very often anymore. Indeed, your point that Ledbetter was reversed is majorly weakened by your failure to recognize that Democrats had an extraordinary majority that one would not expect to be the normal situation for either party.
Sure, the argument that constitutional amendments are harder than changing statutes is still true. But passing ordinary legislation is so difficult nowadays that the difficulty of doing so is much closer to the difficulty of passing a constitutional amendment than it used to be. Therefore the Court needs to be more careful in statutory interpretation in light of this. Maybe there is still some justification in treating statutory interpretation as a less solemn occasion than constitutional interpretation, but only a little bit. And, at this point, I would reject the idea that the Court should not delve into legislative intent when interpreting statutes; deviations from Congressional intent in interpreting statutes are not going to be easily corrected.
Also, this has implications for constitutional interpretation as well. Courts should be ever more cautious in interpreting statutes in a way that renders them unconstitutional based on the assumption that the problem can be corrected by the political branches simply by the passage of a new statute. Also, courts need to show more restraint in declaring statutes passed by the political branches unconstitutional in general.
July 2, 2010, 2:01 pmporterhouse says:
The SCOTUS is clearly divided along partisan lines. That said, I agree with this statement,
Here is a great column from David Paul Kuhn from RCP,
http://www.realclearpolitics.com/articles/2010/07/02/the_polarization_of_the_supreme_court_john_roberts_elana_kagan_106176.html
July 2, 2010, 2:07 pmSmooth, like a Rhapsody says:
Mr. Welker seems to believe that there is some Pareto-optimal degree of difficulty to pass legislation. Maybe the “market” is signalling that we have enough legislation.
July 2, 2010, 2:10 pmHis is not an argument in support of the judiciary picking up some imaginary amount of slack.
David Welker says:
I don’t even know what you are trying to say.
July 2, 2010, 2:34 pmepluribus says:
I would be surprised if even he knows what he is trying to say.
July 2, 2010, 3:12 pmDavid M. Nieporent says:
But he didn’t address the issue of whether it was correctable. He said — as I quoted once already — “correctable by Congress.” Congress cannot amend the Constitution.
July 2, 2010, 3:18 pminterested says:
Roberts’s “umpire” analogy has been debunked to death. It’s a moderately useful depiction of a trial judge making evidentiary decisions, or of judges or justices applying clear rules, such as statutes of limitation, to unambiguous fact patterns.
But even in trial courts, there’s an incredible variety of ways you can decide almost any case and still be upheld on appeal- other than the most obvious and easiest cases.
The higher you go up the chain- to appellate courts, and then to the more or less political Supreme Court- the fewer “clear” answers there are. I happen to agree with the outcome in Citizens United, and disagree with Roe v. Wade. But people who see these cases differently do not have the tools to persuade me, via “legal reasoning,” that they are correct and I wrong. The converse is also true- pile on the blog posts and law review articles and supporting documentation all you like, Dave Welker isn’t coming out of this thread with his mind changed.
To suggest that the outcomes in these controversial cases owes nearly anything to an “umpire” –like figure, carefully weighing facts against clear rules, is fatuous. Maybe the closest the Justices come to that, is in reviewing cert applications to figure out which conform to the rules, which really reflect a circuit split, etc.
But what else could a Roberts or Kagan say at these hearings? Let a nominee say “look, most of these cases are ambiguous, there are few definitive answers, I’ll keep an open mind but quite often I’m just going to have to rely on my intuitions and sense of what the best policy will be” and see what happens. (E.g., Sotomayor, who took a lot of grief for saying what everyone knows- higher courts are where “policy is made”).
July 2, 2010, 3:39 pmepluribus says:
You’re right about the controversial cases. And youre’re right about the umpire analogy. It is useful, but only when you are trying to be confirmed. Beyond that, it’s doesn’t accurately describe a Supreme Court Justice’s function. It’s worthwhile noting, however, that something close to one-third of the Supreme Court’s cases are decided by unanimous vote. Those cases aren’t controversial. The justices all see them alike, and their function does come close to umpiring–though not close enough to sustain the analogy.
July 2, 2010, 3:47 pmDavid Welker says:
What is the point of this? For purposes of how cautious a court should be in interpretation, the issue is not who corrects an undesirable or wrong interpretation, but rather how difficult it is to make the correction.
To give you a hypothetical, if a possible problem with an interpretation could easily be corrected by the executive branch acting alone with a trivial change in procedure (but couldn’t be corrected by Congress except by a change in the law agreed to by a 60-vote majority in the Senate), this would be a less serious issue than if the only way to correct the problem would be for Congress to pass a new law with a 60-vote majority in the Senate. Now, maybe in particular contexts, the “who” question would matter more, but in general I think the more important issue is “how hard.”
In any case, I of course agree that passing a Constitutional amendment is harder than passing a statute. That is pretty obviously still true. But nowadays, the degree of difficulty has narrowed considerably due to the Senate’s decision to adopt an unconstitutional supermajority requirement for passing ordinary legislation. So, arguments that the Court should approach interpreting statutes in a less solemn manner because Congress can correct the Court’s mistakes have a much higher barrier to leap nowadays.
July 2, 2010, 5:00 pmJonathan H. Adler says:
A few things.
First, I think the umpire analogy does have some (limited) value, particularly when one remembers that in many sports, the umpire does have to exercise some degree of discretion and that the umpire’s primary job, like the judge, is to try to apply the law as it is. This works for most of what most judges do most of the time, just not for most of what Supreme Court justices do that are of particular interest, e.g. the ten percent or so of cases that are 5-4. When I clerked on the D.C. Circuit I was actually surprised at how often there was, in fact, a clearly correct result, even in close cases. Resolving most of those cases was remarkably like calling balls and strikes (save for the 20 page explanation that would follow).
Second, I think that Roberts also likes the umpire analogy because he likes the idea of the judiciary having a less prominent role in policy disputes. He would prefer that major policy battles occur somewhere else. As a consequence, the umpire analogy fits better with his idealized conception of the judicial role than it does with what judges and justices actually do. So I don’t think he’s being as disingenuous as some claim.
Third, I would agree with you that in many cases there may be a range of plausibly correct answers, as well as a range of reasonably permissible ways to decide the case (e.g. broadly vs. narrowly, based on text or precedent or whatever, etc.), and that this is often true even if one is committed to a particular interpretive methodology, e.g. originalism or whatever. A commitment to originalism doesn’t commit a judge to ruling more or less broadly, nor does it commit a judge to a particular approach to precedent, or to how interpret somewhat vague statutes that test constitutional boundaries. Further, I think that there are legitimate reasons why a judge could believe that achieving unanimity on the court serves the rule of law, much as does stare decisis, deference to legislative enactments, etc., and that these are reasonable considerations when deciding how to resolve a case.
In the two cases I used as examples, CU and NAMUDNO, the issue at hand was how aggressively to interpret a statute so as to preserve its constitutionality. In one case, Roberts joined most of the justices in a strained interpretation to save the statute, and preserve a degree of unanimity, in the other he did not. Even were Roberts an originalist — and he’s never professed to be one — I don’t see how either option results in “writing one’s non-originalist preferences into the law.” Further, in neither case were any of the justices in the majority required to embrace an incorrect constitutional holding.
Does that respond to (if not necessarily answer) your questions?
JHA
July 2, 2010, 5:53 pmpireader says:
About the umpire analogy …
If MLB’s rules conained as many broad and vague provisions as the US constitution does, then umpiring would be a very different task from what it is.
About David Welker’s comments above …
You seem to attach extraordinary weight to the Senate filibuster rule. But a majority of the Senate could lift that rule at the start of any Congress (or even in the midst of one). But they don’t, presumably because the majority party’s centrist senators like the rule just fine.
I’d suggest that’s because the rule gives majority centrist Senators a strong hand in negotiating with their more ideologically-extreme colleagues; and a convenient way to fend off their party’s more ideologically-extreme activists … regardless whether their party is Democratic or Republican.
About Smooth like a Rhapsody’s comments above …
I don’t see much vidence that Scalia rules with his head whilst Stevens ruled from his heart. More that both men did both … and have very-different heads and hearts.
July 2, 2010, 10:29 pmMark Field says:
Roberts would have been much more accurate if he had used the example of a soccer referee. Perhaps discretion was the better part of valor.
July 2, 2010, 10:41 pmORID says:
Analogies for the Supreme Court don’t fit well. There are numerous types of cases and controversies that they will see, and the fact that a case makes it to the Supreme Court must mean it is unique and doesn’t fit within the confines of current law, or there is some other controversy. So maybe there was some case like baseball, another case like football, another case like soccer, another case like some type of monkeyfight, another case like BASEketball, another case like aussie rules, another case like “mother-may-I”, another case like red-rover, another case like judging gymastics, another case like judging diving… on and on and on. We can even permeate away from sports.
Any type of argument needed someone to step in and act like a judge and apply the applicable law.
July 2, 2010, 11:39 pmleo marvin says:
If Scalia had a whistle and a red card nothing would ever get done.
July 3, 2010, 12:52 amSteven Lubet says:
Thanks, Jonathan, for responding at such length. You wrote:
Assuming the descriptive accuracy, I have trouble understanding the asserted principle behind “straining” to uphold some statutes but not others, unless of course the chief’s decision is based on, well, policy.
No need to respond — but please know that I appreciate your considered analysis.
July 3, 2010, 10:14 amMark Field says:
Thomas would insist that the game be played the same way it was in 1870.
July 3, 2010, 10:20 amJoe says:
When we used to be able to pass legislation with simple majorities in the Senate
When was this? 1964?
Thomas would insist that the game be played the same way it was in 1870.
Doe v. Reed left Scalia in that role
July 3, 2010, 11:14 amIndpendent Observer says:
I’m sorry to say, Adler and Goldsmith have missed the problem. The problem is that the courts have become as powerful a direct influence on American life as the legislature and so have become instruments of politics as well as law.
Consequently selection of judges is now an issue of extreme political importance, determining the future of both political parties as well as the future of American society. The left and right thus have no choice but to engage the battle which has shifted substantially from the ballot box to the courts.
Admittedly, I have no solution to propose.
July 3, 2010, 4:07 pmMark Field says:
The silly thing about your comment is that a lot of the rules are unchanged, but the game itself, like all games, has changed dramatically. To use an example from baseball (cuz it’s American, you know), pitchers before 1870 all threw underhanded (like softball pitchers do now). There was no rule requiring that, they just did. Now they throw overhand. It would be absurd to say that MLB had to follow the “original expected application” of the rules regarding pitchers and force them all to throw underhanded today.
July 3, 2010, 4:45 pmDavid M. Nieporent says:
That’s not really a very good example, because – to use a technical term – it’s wrong. The original rules did require underhand pitching; they were explicitly changed in the 1880s to allow overhand pitching.
July 3, 2010, 5:09 pmJonathan H. Adler says:
I’m happy to respond further. If you want to define “policy” to include various sorts of prudential judgments, including many of those which are involved in statutory interpretation, then I’d agree. I think there are good reasons to construe statutes so as to avoid constitutional difficulties, such as the presumption that Congress has enacted a constitutional statute and the desire to avoid deciding constitutional questions unnecessarily (in part because such decisions are so hard to undo). But even if one accepts these arguments, there is still a degree of judgment involved in determining how far one pushes the statutory language to avoid the constitutional problem, and how to weigh this concern against others, such as the value of unanimity and clarity in the legal judgments. Are these “policy” determinations? I suppose one could call them that. I prefer to think of them as prudential judgments because they are different in character than the sorts of things we usually characterize as “policy” decisions and don’t (or at least don’t necessarily) involve consideration of the policy implications of a given decision (e.g. whether Congress should or shouldn’t constrain changes in voting procedures in states with a history of racial discrimination in voting, or whether Congress should limit certain types of campaign expenditures).
Enjoy the holiday.
July 3, 2010, 5:47 pmMark Field says:
You’re right — I stand corrected. Fine, here’s another example: catcher’s shinguards. No rule change, just a change in behavior. They should be disallowed under “original expected application”.
July 3, 2010, 7:05 pmReaderY says:
Although Kagan may well be to the left of Souter, fundamentally a liberal justice is being replaced with a liberal justice, so there should be little observable movement on many of the key hot-button issues dividing liberals and conservatives.
Doubtless there will be issues that will swing from 5-4 one way to 5-4 the other, but these will be more minor ones.
July 4, 2010, 1:05 ammarkm says:
Under the Senate rules of 1964 (and for many years before and after), it took up to 68 votes (2/3 of those present) to override a filibuster, but filibusters were quite rare. Senators had to actually keep talking 24 hours a day, shutting down all Senate business, making themselves look like fools in full view of the world, by reading from the phone book, etc. And their supporters had to stay close, ready to rush into the chamber at any time and vote against cloture. (The other side could leave and go on about their business, merely leaving a way that the leadership could send out the secret time for them to come back and see if they could manage to get the 2/3 vote before all the antis showed up.)
Filibusters did not occur merely because a bill was controversial, but because a minority – but not such a small minority as to be unable to get 33 Senators on board – viewed the bill as a direct attack by the majority on them. The Civil Rights Act was such an attack, although IMO the southern white establishment had certainly earned it, and finally made it worth the pain of waiting the filibusterers out and wearing them down. That’s something that didn’t and shouldn’t happen very often.
Now, filibusterers just make an appointment. The Majority Leader schedules in a couple hours of filibustering in between other business. No one has to demonstrate their windbagginess and physical endurance by talking continuously for days. They probably don’t even run short on speech material and have to resort to reading the phone book, live on CNN. The rest of the antis don’t have to stay on call to counter surprise cloture votes.
They made filibustering easy, and now it’s regularly threatened for every controversial bill, and even for judicial appointments. Return to the old system, and just two days into the first filibuster, the antis will be exhausted, bored, and realize they’re looking like idiots on CNN.
Conflict of interest revelation: I’m a libertarian, so to me, it’s often a good thing when filibusters, failure to pass a budget, snowstorms, or any other factor temporarily shuts down one branch of government!
July 4, 2010, 2:16 pmDoc Merlin says:
Kelo was a left decision (note the left leaning judges voted in the majority). Congress also wouldn’t be able to overturn it, as they cannot restrict the states in these actions because of the 10th.
July 4, 2010, 2:18 pmDoc Merlin says:
“Justice Sandra Day O’Connor wrote the principal dissent, joined by Chief Justice William Rehnquist, Justice Antonin Scalia and Justice Clarence Thomas.”
Other than O’Connor, the dissent was entirely conservative.
July 4, 2010, 2:22 pmFat Man says:
What and ignore Al Franken?
July 4, 2010, 4:18 pmWintoon says:
Enough balls and strikes baseball. What does one call it when the officials rewrite the rule book? Roe v Wade. To paraphrase an old New Jersey friend of mine, “Here’s your rule book. I’ve got your rule book right here!” Let me know when the Roberts court dives into penumbras.
July 5, 2010, 7:56 pmDon Meaker says:
Court errors are correctable by Congress, (but subject to Presidential veto) either by amending a statute, or by removal of jurisidiction, or even by initiating a constitutional amendment. Amending the statute can of course take the form of increasing or decreasing the coverage of the law over particular acts, or in tightening or loosening the evidence required by statute to gain a conviction. For example, the spate of convictions based on incorrect statements to police, when there was no underlying wrongdoing could be corrected by only permitting conviction if there was another crime.
Some bad results in criminal proceedings can be repaired by the Executive, using the pardon. Political variation can strongly influence justice by formally or informally providing prosecution/sentencing guidelines to District Attorneys. That appears to be what happened in the recent civil rights case against the Black Panthers.
July 6, 2010, 7:20 amDon Meaker says:
As a practical matter, the current Congress will not correct any left-leaning court ruling, but will move heaven and earth to “correct” rulings in the other direction.
July 6, 2010, 7:22 amTom Goldstein on Supreme Court misconceptions says:
[...] The publisher of SCOTUSBlog on why most of the quick ideological readings of the current Supreme Court are at best caricatures, and in particular why “it is inaccurate to describe the Court as methodically on the march to the right.” (via Adler/Volokh). [...]
July 7, 2010, 10:00 amRoberts Court is the Most Restrained in Modern History, Not Most Conservative « Our Robed Masters says:
[...] to comment at the time. Yet as this question is a recurring interest of mine (see, e.g., here, here, here, and here), I thought I would now. The post is long, so I’ve hidden it below the [...]
August 1, 2010, 9:42 pm