The Supreme Court and the 2008 Election:
Tom Goldstein has a very provocative post up at SCOTUSBlog on how the 2008 Presidential Election might change the direction of Supreme Court doctrine. Tom's bottom line: a Republican victory in 2008 could bring a fundamental and dramatic shift in the Court's direction, perhaps even undoing the work of the Warren Court and returning many areas of law to their pre-Warren Court status. The basic argument: Stevens and Souter may resign, and replacing them with conservatives could lead the Court on a radically different path.

  I look at things differently, and a thought experiment explains why. Imagine the year is 1969, the end of a decade of 5-4 constitutional blockbusters, and Chief Justice Warren has recently announced his retirement. A time-traveler from 2007 comes back and tells you the dramatic news about who would nominate the Justices of the next four decades. He explains to you that American politics would shift sharply to the right in the future, and that that in the next four decades 12 of the 14 new Justices — over 85% — would be nominated by Republicans.

  If you were told that in 1969, what would you guess about the status of the Warren Court's major decisions as of 2007? And fastforwarding to 2007, how closely would your guess of 1969 match the reality of 2007? My guess is that your guess would be pretty far off.

  Elections matter, of course. But on the whole, I think such a dramatic shift is significantly less likely than Tom's post suggests.
Christopher M (mail):
Well, I wasn't alive in 1969, but I sure have the sense that appointing a conservative judiciary is way, way more important to Republicans now than it was back then -- both because the Republican party has become more homogenously conservative in its view of the proper role of the judiciary, and because, after Stevens and Souter and so on, they realize that you can't appoint just any old Republican lawyer and get the results you want.
5.21.2007 7:12pm
Dave Hardy (mail) (www):
A most interesting thought experiment. Yes, with Nixon and then Ford appointing the new justices, they'd pick guys who would undo the Warren Court's work ... guys like Blackmun and Stevens, y'know... Add in Rehnquist and Burger, and the exclusionary rule is toast!
5.21.2007 7:29pm
Christopher M (mail):
It's by no means clear that the Warren Court's work will be undone -- many of those rulings are settled enough that a conservative Court may not undo them, even if it wouldn't have adopted them in the first place.

But surely no one would seriously claim that electing a Republican president in the present political climate is likely to lead to justices like Stevens, Souter, and Blackmun.
5.21.2007 7:39pm
Al Maviva (mail) (www):
If I was asked in 1968 what the 2007 Court and its jurisprudence would look like, I would have pooped my pants and cried, since I was still in diapers and had a very poor grasp on federalism, fundamental rights jurisprudence and antitrust law. My hypothetical reaction then, is not much different from the actual reaction of political activists of all stripes every four years, coincidentally aligning with presidential campaigns and fundraising boom years. This Is The Most Important Presidential Election Ever! Your Rights Are At Stake! YOU WILL BE FORCED TO HAVE / NOT HAVE AN ABORTION IF ____ IS ELECTED - AND YOU AREN'T EVEN A WOMAN!

I can't predict what the Court and it's jurisprudence will look like in 30 or 40 years, but one thing I'm certain of: if a time machine was sent back with a letter from the future, that letter would say, THE PRESIDENTIAL ELECTION OF 2047 IS THE MOST IMPORTANT ELECTION OF YOUR LIFETIME! YOUR VERY RIGHTS, AND OUR COUNTRY, ARE AT STAKE! SEND MONEY IMMEDIATELY!

John McCain, of course, would send a letter to the FEC demanding a blackout on such messages as falling within 60 years of an election, making them prohibited under McCain-Feingold.
5.21.2007 7:44pm
Robert Stefani:
Goldstein is either fear-mongering or stuck in a time-warp himself. Warren court precedent simply isn't the issue these days that it once was. i.e., Miranda is still regarded as bad law by some, but it is also ingrained in our culture now.

Who gets elected will shape the court, but I think the areas of uncertainty are in "campaign finance--free speech issues", the commerce clause, etc--not directly focused on Warren court precedent.
5.21.2007 7:59pm
Bill Dyer (mail) (www):
The explanation for your thought experiment is that it's based on a faulty, if unstated premise — that presidents of both political parties are equally adept at picking Justices who will turn out as they expect.

Democratic presidents have successfully picked "sure thing" Justices (e.g., Ginsburg). Past Republican presidents haven't (e.g., Kennedy and Souter).
5.21.2007 7:59pm
wt (www):
Supreme Conflict makes it clear just how important it is that the mistakes of the past, most recently Souter, not be repeated. The outcry over Harriet Miers is a good example.

So the thought experiment, while entertaining, is probably unhelpful for a post-2008 scenario. I think it's unlikely that even with a Democratic Senate, a Republican president would nominate someone so moderate that they might turn out to be another Souter. Better to just find a compromise candidate in a libertarian.
5.21.2007 8:41pm
Clayton E. Cramer (mail) (www):
I suspect what matters more than who picks the justice is how long that justice stays on the Court. What we thought were conservative Justices, like Sandra Day O'Connor, spend enough time in DC, and turn into liberals.
5.21.2007 8:54pm
It depends on your pet issues as to whether this the "MOST IMPORTANT ELECTION EVER."

The one thing I see being most readily reversed is Lawrence v. Texas. You've got Bowers v. Hardwick only a couple decades back which upheld anti-sodomy laws while still upholding a 'right of privacy', and even Romer v. Evans left open the possibility for a 'status versus behavior' distinction on gay rights laws.

Assuming Alito and Roberts echo Scalia and Thomas, one more like minded individual would have no problems eliminating any "federal right to sodomy" - freeing the states to act as they please in the matter.

So for gay rights activists, since the Lawrence ruling has basically zero "stare decisis - fabric of society" weight (unlike say, Roe or Miranda), this is seriously a monumental election.
5.21.2007 8:58pm

As a procedural matter, how does Lawrence get reversed?
5.21.2007 9:03pm
Peter Young (mail):
Well, I wasn't alive in 1969, but I sure have the sense that appointing a conservative judiciary is way, way more important to Republicans now than it was back then -- both because the Republican party has become more homogenously conservative in its view of the proper role of the judiciary, and because, after Stevens and Souter and so on, they realize that you can't appoint just any old Republican lawyer and get the results you want.

I was alive in 1969--in fact I became a lawyer in January of that year, the month President Nixon took office--and the fact is that both Nixon and his Attorney General, John Mitchell (who in 1970 said "This country is going so far right you are not even going to recognize it"), made a great deal of fuss about Supreme Court appointments, and they set about turning the Court around with a vengeance.

That they failed to gain large-scale overturning of Warren Court precedent was not for lack of interest or effort. Nor was it because any nominees fooled them. Rather, various political forces combined to thwart their efforts.

There was an all-out Republican attack on Justice Abe Fortas's ethics during election year 1968, which led to a Senate debate cloture vote ending President Johnson's effort to nominate him as Chief Justice in place of the resigning Earl Warren, and a second wave of attacks on his ethics in 1969 prompted his resignation from the Court. The first attack on Fortas allowed Nixon to appoint the next Chief Justice, and Warren Burger looked mighty conservative to everyone. If he failed to live up to expectations, it was largely because he did not exert leadership over the Court and did not command much intellectual respect there, not because his conservatism was lukewarm.

At the behest of the Nixon Administration, Gerald Ford, in the House, launched in 1969 and 1970 an attack on Justice Douglas with the intent of gaining his impeachment or forcing yet another resignation from the Court and another opening for a Republican appointment. That effort failed, of course, but it does demonstrate that the Republicans were then intently focused on the Court and bent on turning it around ideologically.

Blackmun, appointed to fill the Fortas seat in April, 1970 after Nixon's nominations of two Southerners, Clement Haynsworth and G. Harrold Carswell, failed, was very conservative for his first decade on the Court (with the exception of the abortion opinion, which owes a lot to his experience with the medical profession). One only has to look at Wyman v. James, which I believe was his first opinion, to see how very conservative he was; certainly he never would have written such an opinion in his later years on the Court. He voted for the death penalty in the decade's two great capital punishment opinions. He didn't turn around generally on criminal defendants' rights and civil liberties until many years later. I've read his papers and numerous relevant books, and as far as I can make out, his turnaround was a product of his efforts to become a justice attuned to what he viewed as the real world and his genuine concern for what he called "the little man" as well perhaps as his general alienation from the justices who attacked his opinion in Roe v. Wade. I think his rather dramatic turnaround is idiosyncratic and quite unique in the history of the Court (although, of course, there have been other justices who have changed their views). I don't think Nixon, Mitchell and their cronies can be faulted for failing to anticipate Blackmun's shift.

No one can deny the third Nixon appointment, Lewis Rehnquist, who filled Justice Harlan's seat, was a conservative, both in promise and in deed on the Court.

Because Nixon owed his 1968 election to a Southern strategy, on which he also counted for the 1972 election, he felt politically obliged to appoint a Southerner to the Court, all the more so on the death of Justice Black, a Southerner who had been on the Court for more than three decades. After the Haynsworth and Carswell appointments to the Fortas seat became debacles, Nixon could not risk another rejection of a Southerner. The fairly distinguished (and moderately conservative) Powell was the best bet Nixon had for getting a Southerner through the Senate.

The temper of the times also forced Gerald Ford's hand when it came to appointing Justice Stevens to fill the seat Justice Douglas had held for more than 30 years. He was desperately trying to end bitter political divisiveness in the wake of Watergate and to save the Republican Party from suffering the full brunt of Watergate's fallout. He did not come to the appointment in a position of political strength; he simply had to avoid a partisan fight. The moderate Stevens was the best he could do, given political reality.
5.21.2007 9:27pm
Peter Young (mail):
Lewis Rehnquist should, of course, be William Rehnquist.
5.21.2007 9:33pm
Daniel Chapman (mail):
Just curious... you alluded to an "all-out attack" on Fortas' ethics "during an election year"... is that meant to imply that it wasn't deserved?
5.21.2007 9:54pm
Anderson (mail) (www):
Well, I wasn't alive in 1969, but I sure have the sense that appointing a conservative judiciary is way, way more important to Republicans now than it was back then

Uh, YEAH ... I think the Repubs have learned from their mistakes (O'Connor, Souter, Kennedy).
5.21.2007 9:55pm
Dan Simon (mail) (www):
An alternative interpretation of your hypothetical, Orin, is that Supreme Court jurisprudence follows its own path (the path of the "legal culture", perhaps) irrespective of which party's in power. If so, then the noticeable rightward shift in the Supreme Court during the Bush administration may well be set to continue even if a Democrat is elected in 2008.

In fact, such a scenario isn't hard to imagine--all it would take would be for one of the aging liberals on the Court to be replaced with a more moderate (or perhaps even "stealth conservative") justice, joining the conservative cohort of Scalia, Thomas, Roberts and Alito on a number of opinions that would previously have been carried by the current non-conservative majority.
5.21.2007 10:01pm
Dave N (mail):
I would note that Kennedy has been fairly conservative as a justice, moderate on some issues but still fairly conservative on most. O'Connor fit that same bill.

No one has mentioned Byron White's tenure. I am sure JFK was not expecting a moderately conservative justice in that appointment.

The bottom line is that Presidents generally know what kind of justice they want and look for people who fit that mold. This, however, does not mean they necessarily get the kind of justice they want.
5.21.2007 10:34pm
Peter Young (mail):
Just curious... you alluded to an "all-out attack" on Fortas' ethics "during an election year"... is that meant to imply that it wasn't deserved?

No, I took no position at all on that. What I wrote
was this: "There was an all-out Republican attack on Justice Abe Fortas's ethics during election year 1968 ...." What I was indicating was that while Nixon was not yet in office, his presidential campaign was underway at the time. The observation was part of my effort to demonstrate that the Nixon Administration took the Court very seriously and was very intent on changing its ideological makeup. The attacks on Fortas were one way the Republicans, under Nixon's leadership, sought to change the makeup of the Court. They found a vulnerable target in Fortas.
5.21.2007 11:11pm
Daniel Chapman (mail):
"a vulnerable target." That's one way to put it.
5.21.2007 11:30pm
Peter Young (mail):
"a vulnerable target." That's one way to put it.

Apparently I'm just not going to put it the way you want it put. But, gee, Dan, you're entirely free to put it the way you want in your own messages.
5.22.2007 12:03am
Reg (mail):
"I am sure JFK was not expecting a moderately conservative justice in that appointment."

I think you could make the argument that JFK was moderately conservative.
5.22.2007 12:26am
Daniel Chapman (mail):
Nah... I just throught your first post was funny enough to poke at a bit. Fortas has my deepest sympathy from the republican attack machine he was subjected to. Really.
5.22.2007 12:31am
DiverDan (mail):
One poster suggested that the difference between what one might have expected and the actual outcome is that Republican Presidents have been poor at selecting conservative jurists. While that is certainly one possible explanation, I think a more detailed explanation is: (a) with respect to O'Connor, she was in fact a "conservative" justice, if one remembers that the Goldwater/Reagan brand of conservatism was much more libertarian, much less the "social conservatism" of today; and (b) with respect to both Kennedy and Souter, those appointments were more a result of reaction to the rabid Democratic attacks which derailed the Bork nomination during Senate confirmation hearings and made a circus out of the Thomas Confirmation. It's not so much that Republican presidents are not good at identifying conservative nominees, it's that (1) Republican Presidents are only rarely willing to expend political capital necessary to confirm a truly conservative nominee against what is sure to be the Democratic Senators' attacks, and (2) Republican Senators have so far refused to retaliate in kind, at least with respect to Supreme Court nominees (god only knows they could have with Ginsberg). Another factor to consider is that the liberal press and culture of the Beltway and the Northeast in general - both the Washington Post and the New York Times - seems particularly adept at turning former conservative jurists away from their principles; consider that Harry Blackmun was once considered on the conservative side, but the New York Times loved to crow about how much he "grew" as a Justice after Roe v. Wade, and Kennedy appears to be much the same story. Only Thomas and Scalia appear to be immune from the siren call of admiration from the liberal intellectual elite. It will be interesting to watch and see if Roberts and Alito can also be turned to the dark side.
5.22.2007 12:33am
Christopher Cooke (mail):

It will be interesting to watch and see if Roberts and Alito can also be turned to the dark side.

Yes, I certainly equate a concern with civil liberties of individuals to Darth Vader and Emperor Palpatine's evil philosophy. May the force be with you, young Master Roberts.
5.22.2007 1:41am
Respondent (mail):
A liberatarian candidate is only a compromise candidate in the sense that he/she is sure to be opposed by members of both parties. I can't believe Alex Kozinski would stand a chance in the Senate, although I do think that, if only for entertainment value, he's the one to go with when Scalia's seat becomes vacant. (Personally I also happen to think that Kozinski would make a wonderful justice, since he seems to meet my main criterion of strictly enforcing all constitutional rights.)
5.22.2007 2:07am
Bretzky (mail):
It of course would depend on the Republican who would get elected and on the make up of the Senate. Assuming the president nominates candidates like himself, then one would expect McCain and Giuliani nominees to be more order- and less liberty-minded ones; one would expect Thompson nominees to be more pragmatically conservative; and one would expect Romney nominees to change their minds every three years or so (sorry, had to be done).

Of course, the Senate is very unlikely to switch back to the Republicans during the 2008 elections regardless of who wins the presidency. IMHO, it is almost assured that Colorado will go Dem and very likely that New Mexico will; I also give almost even odds for South Carolina to go Dem as Lindsey Graham is very unpopular with South Carolina Reps. The only iffy seat I see on the Dem side is Mary Landrieu in Louisiana. I think the best the Reps can hope for is to come out of the 2008 election with a net zero change in the Senate.
5.22.2007 9:37am
Peter Young (mail):
Nah... I just throught your first post was funny enough to poke at a bit. Fortas has my deepest sympathy from the republican attack machine he was subjected to. Really.

Your view that these things happen by way of immaculate conception rather than as a result of political motivation is rather amusing if not naive.
5.22.2007 1:46pm
Justin (mail):
This line of argument reminds me of the line liberterians use when they claim that judges should rule the administrative state unconstitutional. They think the result would be that there is no administrative state, rather than that such a result would lead a backlash that would either a) lead the public to push for judges and justices who would overturn that jurisprudenec or b) require that the constitution be rewritten.

If the Constitutional model became concretely like the Scalia-Rehquist model (and yes, I know those are two different models), there would be a substantial question as to whether Republicans would continue to win presidential elections, and even if so, whether they could rely on public pressure to keep their nominees from being filibustered.

Many of the decisions that Scalia and Rehnquist would prefer, of course, would not lead to a backlash (although it would defeat some of the "backlash effect" that keeps many social and "judicial" conservatives voting for Republicans despite serious policy differences). But the key ones - overturning Griswald, defeating all forms of campaign finance reform, defeating all forms of affirmative action, virtually eliminating any Bivens recourse, etc. - would. And it would be unclear what the political landscape would be in that situation, and whether Reagan could have even gotten elected in 1980 if the South already won its "federalism."

Although this argument says nothing about Goldstein's post - that this country has dodged some bullets (rightly or wrongly) in the past is irrelevant, and eventually if the public keeps electing Presidents who will nominate a certain type of judge to the bench, they will have to live with the predictable results - it does sort of limit the usefulness of your "preferred" view. Your "preferred" view seems to imply that the Court should have already overturned the Warren court, so its no big deal that it might do so now. But that has a certain circular reasoning to it - it presumes that overturning the Warren court is no big deal. If it *is* a big deal, then people would only realize it *after* the core decisions got overturned, which has not happened yet.

That's not to say that the Warren Court decisions *shouldn't* be overturned. But that's a substantive dispute that must happen based on the decisions themselves. Given the Republicans nominations of Souter, Stevens, Kennedy, and O'Connor, there's no reason to believe that the presidential elections of 1980, 84, 88, 00, and 04 say anything useful about whether the public likes or dislikes those decisions.
5.22.2007 1:47pm
Justin (mail):
Oops. I actually misunderstood your argument.

A better counterargument would be to look back at all the 5-4 and 6-3 decisions during the Kennedy and O'Connor era, and imagine what would happen if a substantial majority of them was overturned. Assuming that Ginsburg and Stevens are replaced by, say, Emilio Garza and Edith Jones Clement, what happens?

As mentioned, the days of picking a Souter are over for Republicans. Look what happened when Miers was picked. And if you think that debate had anything to do with her competency (at least on the right), then you're being too hopeful and unrealistic.
5.22.2007 1:56pm
Re: As mentioned, the days of picking a Souter are over for Republicans.

Maybe, but it's entirely possible that a GOP president elected in 2008 will not owe his election to the Social Conservative base (e.g., Giuliani) or may not care (McCain, because he's unlikely to run again in 2012, and is not particularly find of that wing of the GOP anyway). Plus, the president may very well need to focus on national unity in the aftermath of the highly divisive Bush presidency. And of course the President will need to get his nomination through the (Democratic) Senate. The result would be nominations of moderate conservative who would not vote for any groundbreaking liberal precedents but who also will follow a stare decisis rule and leave most the Court's current major rulings in place (or at most, nibble around their edges a bit, seems to be the fate most likely in store for Roe vs Wade).

Re: Look what happened when Miers was picked.

The issue was not so much her ideology as her qualifications apart from being a Bush sycophant. Moreover that was in 2005. It's a different world now, and not just in the Senate, because of the 2006 election.
5.22.2007 5:19pm
As a procedural matter, how does Lawrence get reversed?


I was using shorthand there. Of course, technically it does not seem likely that some state will pass a new law banning sodomy, and then that law is upheld all the way up through the Supreme Court. I'm thinking of something along the lines of a law against sex toys working its way up, with one side saying Lawrence should mean that the anti-toy law is unconstitutional. Then, SCOTUS could say that:
"to the extent that Lawrence endorsed the view that the federal Constitution contains a right to private sexual activity which outweighs the state interest in narrowly tailored laws of general applicability (or whatever test they are using at the time) promoting sexual morality, Lawrence is hereby overruled."

Essentially, I think the court could very easily go back to saying that laws targeting an "activity" are less suspect than those targeting a person's "status." At the time, I read Romer v. Evans as allowing that sort of distinction. Under my reading, a law banning gay marriage would be allowed because it targets an overt activity, not status. Similarly, a law against sodomy would target an activity rather than status. Essentially, the court could allow a state to adopt the stance that "being homosexual is fine (as required by the 14th), but doing gay stuff is not." Regulating the "doing stuff" is within the state's sovereign police power (with SCOTUS adopting in the sexual realm the more lenient religious test of "laws should be neutral and of general applicability.") Right now, it seems legally easier to discriminate against someone based on his religion than his sexual habits.
5.22.2007 5:36pm
Re: Lawrence is hereby overruled."

I don't think the court has ever said one of its precedents is explicitly "overruled". Even Brown overruled Plessey by pointing out the "Separate is inherently unequal" leaving open the possibility that if separate could be equal segregation might still pass muster. In Lawrence too there was a dodge abound Bowers by claiming new understanding of homosexuality and also the fact that the public as a whole was no longer supportive of such laws. One could hardly claim the reverse of that after a mere few years. Moreover overturning Lawrence would throw the whole regime of privacy rights into question all the way back Griswold (as overturning Roe would not), not a popular or wise thing to do. I also do not see Lawrence as a major target of the Right given that sodomy laws were unpopular and rarely enforced beforehand. No, the one true target is and remains Roe.
5.22.2007 6:45pm