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Author Topic: Have we witnessed a major ideological shift on the Supreme Court?  (Read 4605 times)

Miss P

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From SCOTUSblog yesterday:

Wednesday, June 13, 2007
Analysis: A Clean Sweep for Conservatives?
Posted by Tom Goldstein at 07:28 PM

As we enter the last few decision days of the Term – with 17 cases remaining – I want to raise the prospect that the Term will ultimately reveal that the Court’s ideological shift has been far more profound than almost anyone outside the building has realized so far.

Here are the numbers to this point. Eleven cases have been decided by a five-to-four vote on classic ideological lines. Justice Kennedy has cast the deciding vote in each – six times with the right and five with the left. Those results suggest a balanced outcome.

But the numbers are very misleading. In almost all of the meaningful cases decided thus far – measured by their effect going forward – the conservatives prevailed. In particular, three of the five decisions in which Kennedy joined the left (Smith, Brewer, and Abdul-Kabir) were essentially fact-bound rebukes of the Texas courts and Fifth Circuit for their application of the Penry II mitigating evidence rule. Those decisions are similar in their importance to the Court’s various summary reversals of the Ninth Circuit. A fourth (Marrama) decides a pipsqueak of a bankruptcy question.

The only arguably significant decision with that voting alignment is the global warming case (Massachusetts v. EPA), which got a lot of press but may not amount to much. The Court merely told the EPA to consider regulating carbon. And its standing holding is quite fact-bound.

By contrast, the five-to-four decisions in which the conservatives have prevailed have tended to be genuinely significant. Most notable, of course, is the Carhart abortion case, more so for its doctrinal and public significance than the significance of that particular procedure. In Ledbetter, the Court broadly applied the Title VII statute of limitations in the context of a frequently recurring fact pattern.

To the same effect, the three Texas death penalty decisions discussed above pale in comparison to three other capital cases in which the Court adopted structural rules that will limit challenges to capital sentences: Ayers on mitigating evidence; Schriro on the right to an evidentiary hearing; and Uttecht on excluding jurors who have doubts about the death penalty.

But we are not done. The consensus is that the Chief Justice is writing an opinion invalidating the school assignment programs. The federal campaign finance law at issue in Wisconsin Right to Life is likely to be struck down on the same voting alignment.

That would truly be an extraordinary Term, but I get the sense that there may still be more. The fact that Justices Ginsburg and Stevens dissented from the bench in three cases – twice in late May and early June after all the votes had been cast – strongly suggests an exceptionally high level of frustration on the left. (Neither does such a thing lightly.) It seems entirely possible that the remaining cases involving, for example, challenges to public funding of programs with religious components (Hein), search and seizure (Brendlin), and the environment (Defenders of Wildlife) all will be decided five to four, with Justice Kennedy siding with the conservatives.

If that happens -- and I think it is likely that it (or something close to it) will -- the President will have gotten with his appointments precisely the Court he sought and that liberals feared. We can already count on conservative rulings on race, abortion, campaign finance, and the death penalty, and may be able to add to that religion, the Fourth Amendment, and the environment. It would be a memorable Term indeed.

***

Your thoughts?  Does Goldstein overplay the differences between Sandra Day and Alito?  Is the CJ just more persuasive and powerful than his predecessor?
That's cool how you referenced a case.

Quote from: archival
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Hank Rearden

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Re: Have we witnessed a major ideological shift on the Supreme Court?
« Reply #1 on: June 14, 2007, 10:53:45 AM »
Is there not a substantial "ideological" difference between Alito and O'Connor? 

And what does it mean to "dissent from the bench"?

I'm not sure there is a big shift--a minor shift perhaps.  You could almost call it a correction though for more liberal rulings from the last ten years (wrt partial birth and AA). 
CLS '10

The appropriateness of Perpetua would probably depend on the tone of the writing.  When I used it, I (half playfully) thought the extra space made the words sort of resonate.

Alamo

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Re: Have we witnessed a major ideological shift on the Supreme Court?
« Reply #2 on: June 14, 2007, 10:58:18 AM »
Tag.

At least some of the rulings seem to push back on the BS of treating "enemy combatants" as less than people.

But both Roberts and Alito are relatively young--I'm interested to see how they develop as justices over the next couple of decades.  I don't know enough about Alito to compare him to O'Connor, but I certainly think Roberts seems more moderate than Rehnquist did.

And dissenting from the bench simply means that the Justice reads her/his opinion from the bench as opposed to simply having it printed in the court reporters.  Not sure if it's ideological frustration or senility.
I must admit that I may have been infected with society's prejudices and predilections and attributed them to God . . . and that in years hence I may be seen as someone who was on the wrong side of history.  I don't believe such doubts make me a bad Christian.  I believe they make me human . . .

Jolie Was Here

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Re: Have we witnessed a major ideological shift on the Supreme Court?
« Reply #3 on: June 14, 2007, 01:05:06 PM »
I think that replacing O'Connor with Alito is major indeed; I'd love for someone to prove me wrong. 

(for a bit of AK that's not at all gratuitous: I was going to pass this thread by until I saw that it was penned by Miss P and that the last response was from archival.  That brought me in right quickly!)
I was referring to your intellectual penis. Which is quite robust.

Jolie is creeping up on me. 

Miss P

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Re: Have we witnessed a major ideological shift on the Supreme Court?
« Reply #4 on: June 14, 2007, 03:37:22 PM »
I think people just didn't realize how conservative Kennedy is on some issues. 

And I think that people tend to think of O'Connor as much more "moderate" than she was.  She looked moderate only in comparison to the extremist right wing of the Court.

If* I were being snippy, I would say that neither SA nor SDO has a coherent ideology so it would be hard to judge if they're ideologically so different.  But I'm not being snippy.  I will say that I imagine the major differences between them will end up being about abortion rights and related issues and probably not on race, crime & punishment, labor, economic regulation, etc.

I surely don't buy the notion that anything the Roberts Court does could be merely a "correction" for the liberal extremism of the Rehnquist and Burger Courts.

*ETA: I could have sworn Gengis was in here and said that, but she didn't!
That's cool how you referenced a case.

Quote from: archival
I'm so far from the end of my tether right now that I reckon I could knit myself some socks with the slack.

Hank Rearden

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Re: Have we witnessed a major ideological shift on the Supreme Court?
« Reply #5 on: June 14, 2007, 06:23:06 PM »
I think people just didn't realize how conservative Kennedy is on some issues. 

And I think that people tend to think of O'Connor as much more "moderate" than she was.  She looked moderate only in comparison to the extremist right wing of the Court.

Gengis, if I were being snippy, I would say that neither SA nor SDO has a coherent ideology so it would be hard to judge if they're ideologically so different.  But I'm not being snippy.  I will say that I imagine the major differences between them will end up being about abortion rights and related issues and probably not on race, crime & punishment, labor, economic regulation, etc.

I surely don't buy the notion that anything the Roberts Court does could be merely a "correction" for the liberal extremism of the Rehnquist and Burger Courts.

Maybe Alito will hang out with Scalia enough that Alito will develop a coherent ideology.   ;)

I was only saying that the 2002 partial birth case and the Michigan AA case were leftward shifts.  While the Seattle (?) case with the racial assignments, along with the latest partial birth case, may be shifts to the right, you could also think of them as shifts back to the center. 
CLS '10

The appropriateness of Perpetua would probably depend on the tone of the writing.  When I used it, I (half playfully) thought the extra space made the words sort of resonate.

Miss P

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Re: Have we witnessed a major ideological shift on the Supreme Court?
« Reply #6 on: June 14, 2007, 06:42:34 PM »
Maybe Alito will hang out with Scalia enough that Alito will develop a coherent ideology.   ;)

I was only saying that the 2002 partial birth case and the Michigan AA case were leftward shifts.  While the Seattle (?) case with the racial assignments, along with the latest partial birth case, may be shifts to the right, you could also think of them as shifts back to the center. 

No, neither of those cases were leftward shifts.  Lawrence was a leftward shift, as were Ring and Simmons.  I'll give you those.  I don't see them being "corrected" anytime soon.

The voluntary school desegregation cases haven't been decided yet, btw, though it appears Roberts is writing at least one of them (if they are not consolidated) and I imagine you're right about the outcome or outcomes.  There's nothing "centrist" about outlawing school desegregation, however.
That's cool how you referenced a case.

Quote from: archival
I'm so far from the end of my tether right now that I reckon I could knit myself some socks with the slack.

Hank Rearden

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Re: Have we witnessed a major ideological shift on the Supreme Court?
« Reply #7 on: June 14, 2007, 06:57:52 PM »
Maybe Alito will hang out with Scalia enough that Alito will develop a coherent ideology.   ;)

I was only saying that the 2002 partial birth case and the Michigan AA case were leftward shifts.  While the Seattle (?) case with the racial assignments, along with the latest partial birth case, may be shifts to the right, you could also think of them as shifts back to the center. 

No, neither of those cases were leftward shifts.  Lawrence was a leftward shift, as were Ring and Simmons.  I'll give you those.  I don't see them being "corrected" anytime soon.

The voluntary school desegregation cases haven't been decided yet, btw, though it appears Roberts is writing at least one of them (if they are not consolidated) and I imagine you're right about the outcome or outcomes.  There's nothing "centrist" about outlawing school desegregation, however.

What was the Michigan case's relation to Hopwood?  And didn't Carhart expand upon Casey? 

I won't even touch that desegregation comment.  Too argumentative for me on this pleasant Thursday evening.   :)

I'll look forward to reading the opinion though, whichever way it turns out. 
CLS '10

The appropriateness of Perpetua would probably depend on the tone of the writing.  When I used it, I (half playfully) thought the extra space made the words sort of resonate.

Miss P

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Re: Have we witnessed a major ideological shift on the Supreme Court?
« Reply #8 on: June 14, 2007, 07:26:46 PM »
What was the Michigan case's relation to Hopwood?  And didn't Carhart expand upon Casey? 

I won't even touch that desegregation comment.  Too argumentative for me on this pleasant Thursday evening.   :)

I'll look forward to reading the opinion though, whichever way it turns out. 

Hopwood was a 5th Cir. decision, so it was never the law of the land.  IIRC, the Court denied cert. because of a jurisdictional problem (Texas disagreed with the circuit court's reasoning but not its judgment so there was no case in controversy).

I'm not quite sure how you think [Stenberg v.] Carhart expanded upon Casey since it clearly applies the "undue burden" standard, but I'll hear you out.  Still, Casey has no majority opinion and did not have a whole lot of precedential weight.  It also wasn't particularly radical.   

That's cool how you referenced a case.

Quote from: archival
I'm so far from the end of my tether right now that I reckon I could knit myself some socks with the slack.

Miss P

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Re: Have we witnessed a major ideological shift on the Supreme Court?
« Reply #9 on: June 14, 2007, 07:27:40 PM »
You don't believe in school desegregation, Hank?
That's cool how you referenced a case.

Quote from: archival
I'm so far from the end of my tether right now that I reckon I could knit myself some socks with the slack.