Justice Ginsburg: "This Term May Be Very Revealing":
These days it feels like news when Supreme Court Justices aren't giving on-the-record interviews to reporters. Still, this story from Joan Biskupic has a potentially noteworthy tidbit from Justice Ginsburg. The story is a bit unclear as to the context of Ginsburg's statement, so perhaps it is nothing. But if I'm reading the story correctly, Biskupic asked Justice Ginsburg to explain how Justice O'Connor's departure had changed the Court. Justice Ruth Bader Ginsburg declined to offer any details, but she did respond by saying that "this Term may be very revealing." Any thoughts on what if anything that might mean?
Justice Kennedy will decide to flip on partial-birth abortion and race-conscious school admissions. 2007 could become another 1992.
That seems less likely than Mr. Lederman's hypothesis, however.
After all, siding with Scalia now - when it actually counts - would result in a marked shift in SCOTUS jurisprudence. This would in turn cost Kennedy many dinner invitations. Perish the thought!
Why would a Justice join a dissent that he didn't agree with? That makes no sense. If the Justice is making a purely tactical move, presumbably he would join *majority* opinions when he doesn't agree with them. But joining a dissent "just for kicks" only means that he can't influence the majority. Why would a Justice ever do that?
Of course, "revealing" could mean absolutely nothing, but it's fun to prognosticate.
Does anyone actually believe this? Is it just fun to write this stuff?
I just thought this meant Justice Ginsburg was considering wearing shorter robes this coming term...
(Hence the point she's now the sole female justice...it all ties together, I tell you...)
http://www.theonion.com/content/node/34038
Sen. Specter intimated as much on the Senate floor today as he once again called for gavel-to-gavel coverage of SCOTUS proceedings. He contended that the old argument that exposure of the Justices on television will threaten their safety, independence, or what have you, is no longer valid when you have justices on prime time television or hitting the debate circuit.
On an unrelated note, Specter also (once again) questioned the efficacy of the cert. pool by quoting the Chief Justice in his private practice days asserting that it makes law clerks too powerful and important.
However, I believe there is a kernel of truth to the notion that the ego of a justice sometimes leads his mind. O'Connor relished her 'moderate' role, and I see cases like Lee v. Weisman, his willingness to rely on foreign law, and generally poorer skills at crafting O'Connor like "balancing tests" (and O'Connor certainly had her own flaws at it) , all as examples of a jurist who puts his own ego and grandstanding above the letter of the law. If the law doesn't say what "HE" (double caps) thinks it should, he'll just pronounce on high what the law should be. And O'Connor's absence will only feed Kennedy's desire to be seen as the craftsman of the law. Nevermind that such role is supposed to be for Congress...
So Kennedy is my least favorite justice. Any chance I can take a dig at him, I will. That's my bias.
The speculation on Justice Kennedy is interesting and likely the most accurate, particularly if he now sees himself as the Court's "Middle."
Of course, for those of us practicing criminal law, it might mean that Justice Scalia is willing to make Confrontation Clause law retroactive in Whorton v. Bockting. (He wrote the Court's opinion in Crawford v. Washington but was part of a 5-4 majority deciding against "retroactivity" in Schriro v. Summerlin). For criminal law practioners, that would be more than "revealing." "Frightening" better describes its effect on prosecutors, while "Full Employment" describes its effect on the criminal defense bar.
I foresee a strengthening of the second amendment. More tolerance for religion and government interaction, but also a more narrow definition of what is protected free speech. The 14th amendment will probably now be properly read as opposing racial preferences rather than mandating them. A lot more attention paid to the 10th Amendment, but more decisions under the 4th, 5th, and 8th amendments that favor government rather than defendants or the public. Oh, and copies of the Bill of Rights that don't have a 9th Amendment at all (a view shared by most liberal Justices as well). Overall, we'll win some freedoms and lose some others.
Why can't we get justices who protect all of the rights in the Constitution instead of just some of them?
Me, I'd be happy with justices who recognized that the federal Constitution is neither all powerful nor the fount of our rights, but rather a document (1) enumerating the few specific areas where states have surrendered sovereignty to the federal government, and (2) recording certain rights which are given by God.
Perhaps (although I think it unlikely) it's quite the other way around: perhaps Kennedy realized when Stenberg was decided that he'd been led up the garden path in Casey and is now willing to reconsider his mistake.
No 2nd amendment friendly justice in Alito. He told the Senate that he'd have had no problem upholding the federal machine gun ban if it just had a slightly stronger interstate commerce nexus. The tone of his insistence strongly implied that Alito doesn't take a very pro-2nd amendment view at all. (Unlike Roberts, who told Senator Feingold that he believes in an individual right to bear arms.)
DaveN,
I assume your kidding about the Crawford retroactivity question. There's not a snowball's chance in hell that that's what Justice Ginsburg had in mind when she expressed her feeling that this term would be "very revealing." In the long scheme of things, that question is as minor as any by Supreme Court standards, and it certainly wouldn't qualify for marking this term in particular as "very revealing"
The more interesting question is what did Ginsberg mean when she said she would like another woman on the court, but only if she were the right kind of woman.
I don't think Justice Ginsberg was referring to Whorton v. Bockting either. However, if Crawford is retroactive, then the analysis in Whorton will be HUGE in habeas corpus jurisprudence and the holding will be HUGE in terms of criminal justice in this country.
Is there something on the docket this term that would allow them to rule on it, or are you just fapping yourself?
"cause without a case to rule on (or or a case to deny cert to) , I don't see how they're going to do much with it.
This means nothing. I could tell you this. There are some high profile cases, which are from subject areas where O'Connor was the swing vote. If Alito votes like O'C, it will be very revealing. If Alito doesn't, but Kennedy flips, it will be very revealing. If Alito doesn't, and Kennedy doesn't flip, it will be very revealing. Or, there could be a WRTL-type punting, in which case it won't be revealing.
But, admittedly, entrail-reading can be fun.
Maybe I am fapping myself too often and going blind. Blame Jessica Simpson for that. But my comment was not in reference to this particular set of cases, but rather that this term would finally mark the long-awaited rightward shift of SCOTUS. The rest of my post was about some longer terms effects of the rightward shift.
Smile, you are on SCOTUS-TV.