I'm thinking of the cases that are coming up in my Constitutional Law classes this week, wondering which ones were decided 5-4, and imagining saying: But if Justice Scalia had died earlier and been replaced by an Obama nominee, this case would have gone the other way. So the case you have read and its inverted version, with the dissents as the majority, are essentially equally good law, distinguished not by reason and logic, but by the hardiness or fragility of the human body. Yes, you need to see that this is the precedent now, but you need also to know that it may be the other way around by the time you graduate. It's naive self-deception to learn the cases as a statement of the law. They are only temporary resting places. And yes, I've devoted my life to teaching people like you about these scurrilous writings, but they were somewhat satisfyingly anchored by this Justice whose time on the Court has spanned my teaching career, who wrote with engaging clarity and vigor. Now comes the deluge of muddled repositionings, couched in tedious verbiage and, bobbing woozily in the muddy water, you will spot a few bright-colored floaty toys, the overrulings.
But first come the articles, written by law professors, like: "How Scalia’s Death Could Shake Up Campaign Finance/It might be the opening reformers have been waiting for," by Richard L. Hasen. Maybe the new liberal majority — if it comes to be — will overturn Citizens United. And yet:
... Supreme Court justices of whatever stripe are reluctant to easily overturn precedent.... It does not look good for Supreme Court precedent to swing like a pendulum, or for lower court judges to ignore Supreme Court rulings, making the boundary between law and politics look ever more porous.I boldfaced the word "look." I expect the justices to to tend to appearances. It won't look like a pendulum swinging or an ever more porous boundary. It also won't look readably Scaliaesque. The coherence of the changes will be explained in long, complicated opinions that no one will want to read, but that law professors will have to continue to assign and explain.
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58 comments:
"Now comes the deluge of muddled repositionings, couched in tedious verbiage and, bobbing woozily in the muddy water, you will spot a few bright-colored floaty toys, the overrulings." Future "reasoning" may turn out muddled and muddy, but the decisions will be clear and unambiguous. I predict they will be utterly predictable. If nothing else, it's good for law students: everything they'll need to know about future con law can be summarized in a couple of weeks -- heck, a couple of pages.
Aw c'mon perfessor, just like Roe V. Wade, the previous rulings are settled law.
McConnell REALLY needs to call the Senate in session, prior agreements be damned. Situation has changed a lot.
Leftists don't give a crap what it looks like. Move the ball forward to utopia.
Republican primary - shit just got real
"Aw c'mon perfessor, just like Roe V. Wade, the previous rulings are settled law."
Funny you should mention Roe v. Wade. It was overruled in 1992. You didn't notice, did you? That's how it's done. They can make you not see it.
The idea that justices would be reluctant to overturn precedence because it looks bad would be worth entertaining if we had different justices. The idea that this bunch has any concern for the dignity of the institution or the rule of law is laughable.
If the written decisions are just for show, so it looks like rulings are based on something other than the Justices' personal support for a law, then what's to be gained by reading them? Do law professors assign them just to help keep up appearances?
AA said: "Funny you should mention Roe v. Wade. It was overruled in 1992." Really?
"The Court's plurality opinion upheld the constitutional right to have an abortion while altering the standard for analyzing restrictions on that right. Applying its new standard of review, the Court upheld four regulations and invalidated the requirement of spousal notification." (wiki)
My reading comprehension must be faulty. Let me read that again. "The Court's plurality opinion upheld the constitutional right to have an abortion..."
A law professor has a different view of the law from the layman. The layman wants to see the constitution upheld, limited powers and all that. The law professor wants to win cases, so variability doesn't matter so long as lawyers keep up.
The public willingness to stand for limited corruption is finite, and the design margin of democracy someday disappears. Then you don't have a law. Go into banking and bribe your favorite public official.
I love the way Hillary is prattling about Obama having the right to nominate a "justice" (What a fucking title, sort of like the Democrats calling themselves "democratic") as if anybody is taking away his right to nominate. The Senate is also duly elected, and can't be forced to confirm. Not to mention that Obama himself has voted to filibuster a SCOTUS nominee. This won't even require a filibuster.
That's where Epstein's procedure of looking at where the constitution came from matters. You get to say what's right and wrong based on how it fits those causes.
He likes English common law and Roman law. Showing how these led to a constitutional provision is part of the demonstration.
All of them.
If they can.
Liberalism. Let me clarify that. Modern liberalism is simply secular ISIS. They will brook no deviation from the path of the narrative.
"If a liberal Supreme Court Justice replaces Scalia, how many 5-4 conservative precedents will the new 5-person liberal majority overturn?"
As many as they can get in front of them with a reasonable question at issue.
The 9CA and the DCCA will be very busy, generating fodder.
What's more important is whether Scalia smoked in his chambers and whether they'll have to call in a remediation team before they're safe for the next occupant.
I've come to lose all respect for the Supreme Court. I see Justices like Scalia working to apply the Constitution but I see others, like today's liberal voting block, conniving to see what they can get away with.
The past is the past. Look towards the future.
Since both Sanders and Clinton are on record advocating a litmus test on Citizens United any hearings will be a good opportunity to highlight the left wing mythmaking about the case. The left holds and seems to believe it allowed corporations to donate mass amounts of money. But in fact it allowed a small group to produce a movie critical of a candidate which that candidate suppressed.
The left gets away with a lot because people aren't paying attention. Sunlight is a gift Reps need to take advantage of.
I suspect the notion of respecting precedence is about to be considered old fashioned in an attempt to move the pendulum to one side and nail it place.
If you think Obama or the party activists with bylines will quietly acquiesce to a Senate that won't confirm his nominee, then you haven't been paying attention. He'll just veto everything that comes his way until they confirm. The threat of or actual government shutdown will be blamed on Republican intransigence. Buy stock in barricade rental companies now.
I may be wrong, but we're seeing the siren song of socialism transfix many people who have been poorly educated. The same folks will only too willingly trample on the notion of laws as clearly definable things, as words now have so many different meanings that they mean nothing. The living constitution will be fertilized with premium horse shit and while it may look the same and have the same words, it will be unrecognizable.
1984 was intended as a cautionary tale, not an instruction manual.
I would love to see a list of endangered 5/4 decisions. Seriously what is a stake? Gun rights. Ok we'll go back to the old different rules for different areas. Abortion the same. Citizens United. Who cares except multi millionaires. Death penalty? Not too many of those now anyway.
If you're a social conservative you lose anyway. Presidential power? They'll limit that as soon as a Republican is elected.
If the conservatives ideology rested on one 80 year old man not to die, then the battle was lost years ago and it was just a matter of time.
Bill, R o Texas wrote: "If the conservatives ideology rested on one 80 year old man not to die, then the battle was lost years ago and it was just a matter of time."
You are right on the button here. The battles were waged and lost in the public schools some time ago. And the coup de gras was administered at the college level. It will take a cataclysmic event to turn things around. Maybe.
"If the conservatives ideology rested on one 80 year old man not to die, then the battle was lost years ago and it was just a matter of time."
It is sad. As I posted in another thread, I've lost the respect that I had in the Supreme Court in my youth.
Obama has not shown much regard for appearances so far and I do not expect him to start now.
"I would love to see a list of endangered 5/4 decisions."
Althouse could assign this as homework. Please post the results here! (Anonymized, of course.)
If a liberal Supreme Court Justice replaces Scalia, how many 5-4 conservative precedents will the new 5-person liberal majority overturn?
Ans: as many as they want, possibly all of them, and some other less divided rulings as well.
Clinton and Sanders both, it seems, have made clear that there are several political "litmus tests" they would have for Justice appointments - beginning with Citizens United.
IOW, a make-or-break qualification for Democrat appointments is disrespect of existing law.
Just another reminder of how Roe v. Wade has poisoned politics and diminished the prestige and authority of the Supreme Court. The Court is now just another political branch. Not that politics was never a factor before. It was, inevitably. But the Court in Roe v. Wade and progeny, by refusing to allow the political process decide or even temper the abortion issue, sent us down a path where the Court is a principal political battleground with winner take all stakes. And not just at the Supreme Court. The Federal Judiciary is infected by a scheming process that constantly has political result and decisional outcomes in mind. A aspiring judge dares not squat in the middle, for fear of having no proponents for nomination and confirmation. Doubtless there are young lawyers in the profession who are very mindful of positions they take in public, lest they make themselves unacceptable to one group or another.
Do I exaggerate? I don't think so. The first thing on the checklist for a judicial nomination nowadays is whether the person's point of view is discernible and reliable. That could change some day, but not with the current crop of politicians and the climate in which they grow.
It's all very discouraging to old dogs like me who continue to hope, against all evidence, that we will seek people who try to discern the truth of facts and the legitimacy of outcome based on precedent and the text of the constitution and statutes. Yes everyone has their predilections, but we old dogs were taught to try to be aware of them and set them aside. It's not an easy thing to do, but it's impossible if you don't try.
I propose that we start putting in term limits for Supreme Court justices. 5 people really have too much power. They are not legislators but they act like them, and according to Althouse, having one judge that is liberal can undo supreme court decisions that were set by a conservative judge (and I'd assume vice versa - though if THAT were to occur the libs would have shit fits).
Further congress, particularly democratic ones keep changing the rules to accommodate their choices to pack the courts.
Take the power away from the Supreme Court. They are not supposed to be this powerful
That the process of law is, at this level, simply a ritual, irrelevant to outcomes, which are determined ultimately by a general balance of power. The rituals can at best delay things.
This isn't a new idea.
"I've lost the respect that I had in the Supreme Court in my youth."
Scalia predicted this when they "became politicians."
""The Court's plurality opinion upheld the constitutional right to have an abortion while altering the standard for analyzing restrictions on that right. Applying its new standard of review, the Court upheld four regulations and invalidated the requirement of spousal notification." (wiki) My reading comprehension must be faulty. Let me read that again. "The Court's plurality opinion upheld the constitutional right to have an abortion...""
As I said, it was written by a clever Court keen on hiding what happened. Why you'd expect Wikipedia to help you see it, I don't know. Read the whole case very carefully until you see my point. If you don't bother, you are an object lesson, proving my point.
I blame myself a little for linking to the Wikipedia article. Here's the whole opinion.
The opinion goes into great detail about when a case should be overruled and postures about how it is not overruling what it has already overruled and replaced with something else, something it calls "the essential holding of Roe v. Wade." It swaps in different doctrine, then says that new doctrine must stay because it's stare decisis.
Althouse Haiku:
Bobbing woozily
muddled repositionings
the muddy water
I am Laslo.
All of them. Come on, now; when you read Justice Breyer waxing lyrical about stare decisis in Leegin, or him and his compatriots talking about it at argument in Friedrichs—I mean, we all know that's for show, right? When they said those things, they said them when it was a 4-1-4 court, but if they get a 5-4 court going their way? Really? Every "standard" 5-4 case that the liberals have lost for the last thirty years is now back on the docket. Baze, Kansas v. Marsh, Zelman, Van Orden, Heller (although probably not McDonald), Ricci, Parents Involved, Carhart, Morse, WRTL, Citizens United, Crawford, Medellin, I mean, the list goes on.
And by the way—I think this is incredibly important and under-appreciated: Apprendi and its progeny too. The entire line of sentencing-reform cases was built on a 5-4 alliance between the formalists Scalia and Thomas and Justices Souter, Stevens, Ginsburg, Sotomayor, and Kagan, over the dissents of the law-and-order conservatives (Rehnquist, Roberts, and Alito) and the pragmatists (Breyer and Kennedy). If a liberal president picks Scalia's replacement, he's not going to be thinking about the sentencing reform cases, he's just not going to think about it, it's not on the front of his mind, and the Senators won't think about it because, well, duh. And so it's very possible that a liberal replacement will side with Justice Breyer and flip the balance in THOSE cases too.
All is at an end.
And no one is more acutely aware of this, by the way, than Justice Kennedy. I am sure that it has occurred to him that if a Democratic President replaces Scalia, Kennedy's brief reign as a philosopher-king is also at an end.
AA said: ". If you don't bother, you are an object lesson, proving my point."
Allow me to respond and solidify my position as an object lesson.
Your initial response to my comment was as follows: "Funny you should mention Roe v. Wade. It was overruled in 1992."
I can assure you the Roe V. Wade decision put the US on a path to abort millions of babies. That was the essence of the Roe V. Wade decision. Abortions continue today, with the by-products being sold. Ask a pro-life person if Roe v. Wade was overturned. Heck, ask Hillary if it was overturned. I suspect you will get the same answer.
Tweaking around the edges is not overturning it.
Humperdink said...
'AA said: "Funny you should mention Roe v. Wade. It was overruled in 1992." Really?'
Yes, really. Funny old world, isn't it?
The "why" is as much a part of the case as the "what"; the fine print matters as much as the headline. You can't just say "the bottom-line's the same"—the rule announced by the case and its fine texture controls who can do what going forward. Honestly-applied, the Casey framework is very different to Roe's, as we saw in the Carhart case, for example.
Humperdink, the "v." isn't capitalized. It's not the case's middle name.
Humperdink, the "v." isn't capitalized. It's not the case's middle name.
Thanks for correction. I see I used it both ways.
Simon,
The case details are irrelevant to anyone but those obsessed with the machinery.
The null effect is exactly as Humperdink has it - null.
There is a real world out there independent of both large and small print, and that's the one people should care about.
Abortionists are still protected and no State is able to declare their activities illegal. They have even failed to regulate them.
What was the real world point of the 1992 case? Why should anyone care?
buwaya puti said...
"The case details are irrelevant to anyone but those obsessed with the machinery."
No. The result announced in the case matters only to the immediate parties to the litigation. What matters for the other 300-million-plus Americans is the rule of decision—why did Smith lose and Jones win, what is the rule of law that produced that result, and what does it portend for other people? Just saying "there is a right to abortion" is utterly abstract; it says nothing about how broadly it sweeps, what kinds of regulation of it are possible and by which units of government—all the myriad questions that might follow are controlled by the precise details of the case. The Casey framework is different from the Roe framework; it allows states to do things that they couldn't do under Roe and arguably forbids them from doing things that they could under Roe. To be dazzled by a blinding obsession with the headline result—"abortion is a constitutional right"—is not attractive.
If the decision prevented not one single abortion, and it hasn't, the decline in the rate being entirely due to cultural factors independent of any courtroom - what good is it?
It's like declaring the existence of food, without producing any. Saying so doesn't mean that there is something to eat.
I'm an engineer, I deal in measurable things, and if it can't be measured, it does not exist. I think the only thing measurable in this case is paperwork and megabytes, filed away.
Dead Justice - The newest alternate history novel by Harry Turtledove.
Funny you should mention Roe v. Wade. It was overruled in 1992. You didn't notice, did you? That's how it's done. They can make you not see it.
But was it actually? Casey seemed to loosen restrictions on abortion further.
I've come to lose all respect for the Supreme Court. I see Justices like Scalia working to apply the Constitution but I see others, like today's liberal voting block, conniving to see what they can get away with.
I largely blame the Republicans in the Senate. They are always unwilling to go to the mat against a bad nominee.
Dems oppose all Republican nominees, by default, since Bork. But the GOP is insisting that the President should be able to nominate who he wants.
Which is why "conservative" justices end up going Left but liberal justices never seem to go Right. Because they can get far more stringent personalities in the SCOTUS.
Has ANY conservative been as extreme in their views as Ginsberg?
Take the power away from the Supreme Court. They are not supposed to be this powerful
Indeed. I get strong Weimar vibes from what we're dealing with now. You can't be a free society when your rights are decided by 5 lawyers.
The Senate will block any nominee sent up this year. The question is will the candidate you vote for nominate? Trump has no idea. The rest are predictable. If a Dem wins, how would she get her marxist judges past the Senate?
"The coherence of the changes will be explained in long, complicated opinions that no one will want to read, but that law professors will have to continue to assign and explain."
One wonders who all of that is aimed at, and who is supposed to be taken in by it. The key players -- presidents, senators, and even most lawyers interested enough to pay attention -- know perfectly well what's going on. For them, the notion that the SCOTUS is a thoroughly political institution, and the justices predictably partisan, is self evidently true, at least with respect to the smallish class of cases that politicos care about. Absent intense voter interest, it's hard to imagine any circumstances that would get one side or the other in these partisan wars to surrender whatever advantage they have. As a result, we are now at the point where a senate controlled by one party will not approve a nominee chosen by a president of the other party. That was true at the end of Bush 43 as well, when Schumer gave a speech to the Am Constitutional Society saying that the Dem Senate would not approve another Bush nominee to the SCOTUS (as it turned out, a vacancy did not arise and thus Schumer was never put to the test). For now, the argument is that the senate won't approve a replacement because this is an election year, and the voters should have a say. But if the Dems take over the Senate, and a Rep wins the White House, it will all play out just the same at the beginning of the next administration. Same if Hillary! wins and the Reps keep the Senate. As long as we have divided gov't between president and senate, it's hard to see how anyone gets through. The SCOTUS as an institution hasn't been this threatened since the FDR court-packing plan of the '30s.
Thanks Simon that is a very helpful list. Only a couple on the list appear to be really important. I looked up each case on wiki and oyez.
Baze and kansas are irrelevant because the death penalty will be ended if the libs take over. Not so important to me.
Zelamn vouchers for religious schools. Maybe I'm OK with that. I don't want a bunch of kids going to Madrassahs in the US anyway.
Van Orden is a religious establishment case. The cases are all over the place anyway and that area of law is a disgrace. Maybe better to have one easy rule.
Ricci and Parents are affirmative action cases. Its already allowed anyway so this is just nibbling at the edges.
Carhart id a partial birth abortion ban. I'm hugely in favor of that. Research says it had little impact because providers just switched to a different method of killing the baby (chemical shot to the heart).
Morse 1st amend school case. Bad decision that allowed schools to regulate speech off school grounds. It should be overturned.
Citizen United Big deal. the mess we are in now is because of this case. Look how many unserious candidates are running because they found a few deep pockets. Money will always find a way as long as government is so big. Limit government size and the problem of money in politics goes away.
WRTL ?? I googled that and came up withCitizens United
Crawford narrow pro-defendant heresay decision. Research says not much real world impact (even on domestic violence cases where it was supposed to stop the abuses). In the futire there will be plenty more pro-defendant rulings. I think that is a good thing. the power of government has grown too much.
Medillin to me this is the most important. That would be a huge lose to allow "international justice" to be binding on the US. The international organizations are so corrupt their opinions should not be taken seriously.
But thanks again for the list. It was very helpful.
Bill, to be clear, I wasn't offering a considered, exhaustive list—those are just some of the 5-4 Scalia-majority cases from the last decade and a half that sprang immediately to mind. Another case that I think that I omitted would be Leegin—all the more ironic because Justice Breyer's dissent in that case is a paean to stare decisis, and significant, because if Sanders gets his grubby paws on power, he will have a Supreme Court that stands ready to roll back the clock on antitrust law to the dark ages of the 1960s on a string of 5-4 votes. Yes, yes, the liberals joined Trinko, for example, but their votes in Leegin demonstrate that they have never been sincere about the Bork revolution, and is that really a surprise?
buwaya puti said...
"If the decision prevented not one single abortion, and it hasn't"
That is something that cannot possibly be known. It's pure, empty speculation; we can't possibly have any idea how many abortions have been prevented by regulations that Casey permits but that Roe wouldn't have, had it remained in force.
It can be estimated quite well.
For instance by comparing declines of abortion rates by state.
One can expect the change in leeway, if there is one, that permit states to implement different policies that work at the margins, to have some effect on rates.
In this metric there is no trend at all, however, since 1991.
This only keeps you up at night because you haven't come to terms with the fact that the Supreme Court has become a Superlegislature, and legislatures change their minds.
It's sad that so many of Americans' rights have come to depend on who gets appointed to the Supreme Court. I thought that we had a Constitution and a Bill of Rights to protect us.
The Godfather said...
It's sad that so many of Americans' rights have come to depend on who gets appointed to the Supreme Court. I thought that we had a Constitution and a Bill of Rights to protect us.
Quaint.
You get the rights the government decides you should have. According to the ususal suspects your rights aren't inherent but are granted to you by the government.
Rusty said...
"You get the rights the government decides you should have. According to the ususal suspects your rights aren't inherent but are granted to you by the government."
You get the judicially-enforceable rights that the people adopt by law. Sometimes the people choose to protect the God-given rights mentioned by the Declaration of Independence; sometimes they choose to underprotect those rights or not protect them at all; and sometimes they invent new rights to protect.
Justice Scalia stands for a macro-level proposition about law antecedent to the originalist methodology, far antecedent to any particular doctrine, and it's this: The province of the judiciary is law, and that whether or not natural law controls legislators (as he and I believed it must), judges must be positivists. They have to deal with—they are limited by and bound to—the law that has been enacted, and so the only limitations that they can enforce against the state (i.e. "rights") are those in controlling, positive law: Those rights that are protected against the intrusion of the states by the Constitutions and statutes of the United States and of a particular state.
There's a more lyrical way to think of this: The difference between power and right. The domain of law is power; the domain of natural law (and to some extent that of tradition) is right. Think of eminent domain: Absent something like the APA, governments have the power to take personal property of great sentimental value to a person for a public purpose that is trivial or even capricious, so long as they pay just compensation. But they don't have the right to do so, and they will answer for that decision before a higher tribunal than any on Earth. Nevertheless, the province of the Constitution, and thus of the judge, is power, not right, and you can't overturn that taking just because it was wrong. The province of the judiciary is emphatically law, and it is to God's justice, not man's, that you must turn for redress of the moral wrong done to you by the government in that taking.
Our Hero's eloquent dissent in Troxel v. Granville is a pretty good articulation of this attitude. I am, and I think that Justice Scalia was, of the view that judges—but in our system, judges alone—must be postivists.
Sancte Antonius Scalia, ora pro nobis.
They have already discovered emanations and penumbras, so I am sure we will be introduced to some new and additional sleigh-of-hand tricks to arrive at the progressives' desired results.
I'm surprised no one has mentioned the elephant in the room - the 2nd Amendment. That's where push will come to shove. The Left intends to confiscate our weapons, as a prelude to confiscating everything else we have. We don't intend to allow that. The question mostly comes down to which side the police and the military will be on. Laws don't matter much when that becomes uncertain.
Wait a minute! Does this mean that with the change of a few Supreme Court Justices Gay marriage will no longer be a civil right? Or abortion? Or the right to bear firearms? Or the right to pay money to publish opinions on political issues?
I have come to the conclusion that as a practical matter - taking the broad view, not just of parochial American experience, which I think may lead to delusion - that "rights" are a fantasy, a misunderstanding of the underlying truth, sustainable only under certain conditions.
These conditions are changing rapidly. The state is getting much more powerful, turning the US into a much more "world class" sort of system.
The law and the entire legal process are, above the most personal and trivial level, just rituals, not really different from the Roman divination rituals that were required for state functions.
Power is everything.
There's a more lyrical way to think of this: The difference between power and right. The domain of law is power; the domain of natural law (and to some extent that of tradition) is right. Think of eminent domain: Absent something like the APA, governments have the power to take personal property of great sentimental value to a person for a public purpose that is trivial or even capricious, so long as they pay just compensation. But they don't have the right to do so, and they will answer for that decision before a higher tribunal than any on Earth. Nevertheless, the province of the Constitution, and thus of the judge, is power, not right, and you can't overturn that taking just because it was wrong. The province of the judiciary is emphatically law, and it is to God's justice, not man's, that you must turn for redress of the moral wrong done to you by the government in that taking.
Or, you know, revolution. There's always that. It worked once. When we had a king.
The Godfather said...
Wait a minute! Does this mean that with the change of a few Supreme Court Justices Gay marriage will no longer be a civil right? Or abortion? Or the right to bear firearms? Or the right to pay money to publish opinions on political issues?
That depends on whether our constitution is a living document or not.
And penumbras.
Rusty said...
"Or, you know, revolution. There's always that. It worked once. When we had a king."
I'm a conservative. We're against revolution.
It always puzzled me why Americans were willing to accept the left's characterization of 1776 as a "revolution." You had a tyrannical, usurping king who deprived Americans of the traditional rights of Englishmen to which they were entitled. To call their restoration of those rights a "revolution" is quite puzzling.
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