The court of public opinion
The New York Times has a cool interactive feature where you can compare your views on certain issues with the Roberts court and the general public. However, comparisons can be slightly misleading since the questions are framed as policy questions not constitutional questions. While readers are asked whether they would support a ban on partial birth abortion, the justices are not supposed to be considering whether or not the law is smart policy but whether it is constitutional.
-Luke
Graham’s vote for Kagan
When should senators confirm judges whose judicial philosophy differs from their own?
On Tuesday the Senate Judiciary Committee approved Elena Kagan’s nomination to the Supreme Court. The vote split along party lines, with the exception of South Carolina Republican Lindsey Graham, who broke rank to support Kagan’s nomination.
Graham defended his choice by saying that while he disagreed with Kagan on many issues, he felt it was his duty to support President Obama’s nomination provided she was fair and competent. The conflict raises an interesting ethical and constitutional question, should, and if so when, may Senators vote against judicial nominees on ideological grounds? Read more
The challenge of social science in constitutional interpretation and public policy
Or: how I learned to stop worrying and love the gun
On Monday, the Supreme Court’s majority decision in McDonald v. Chicago affirmed, with some qualifications, that the individual right to bear arms may not be infringed by state or local governments. Was the Court’s decision appropriate? Does the right to bear arms deserve the same special consideration as other civil liberties, such as free speech, assembly, religion, and due process?
Two possible approaches to this constitutional question are the originalist and consequentialist ones. Originalists probe the texts of the Framers of the constitution and their contemporaries for textual evidence favoring or opposing giving such equal standing to the Second Amendment, while consequentialists are more representative of “living” constitutionalism and examine the empirical impact of gun policy on crime, domestic violence, and accidents.
Both approaches face problems. Read more
The (supreme) court of public opinion
The value and content of confirmation hearings
What’s the value of transparency in a democracy? Does it serve a function, or is it simply a right of the people to hear from elected and appointed officials, holding them to account through public opinion and in the ballot box?
These and other questions loom in the distant background when Elena Kagan’s confirmation hearing to join the Supreme Court kicks off this afternoon. While widely regarded as an empty formality that can do more to derail a confirmation (see: Robert Bork) than propel one, Supreme Court confirmation hearings are one of the few opportunities most Americans have to see and hear from the only unelected, lifetime-appointed branch of our federal government.
Many legal scholars and practitioners dislike confirmation hearings, treating them merely as superfluous opportunities for political bluster or the unending debate on abortion. But a fascinating new study – the first comprehensive analysis of what has been said at confirmation hearings – suggests otherwise: Read more
Too smart for the supreme court?
Last Friday, our own Sam Gill had an op-ed in USAToday challenging the notion that a player could be too smart for the NFL. The same day (coincidence?) in a Daily Beast column, Peter Beinart challenged the notion that the Supreme Court should not be made up entirely of Ivy Leaguers. Beinart claims, “the Supreme Court is not supposed to comprise a cross-section of the American public, or of the American legal profession. It is supposed to constitute an intellectual elite…. There’s nothing wrong with wanting the judge reading the brief—like the radiologist reading the X-ray—to have graduated at the top of her class, not in the middle.” Beinart goes on to respond to the claim that Ivy League graduates will have a monotonous, elite worldview by showing that the Supreme Court justices, though all Ivy League grads, come largely from working-class backgrounds. So, what do you think? Are there too many Ivy Leaguers on the Supreme Court? Would someone from the top of his or her law class at the University of Michigan or the Berkeley really be that different?
-Marc
Yes, but is she persuasive?
President Obama’s nomination of Elana Kagan to the Supreme Court has sparked a debate on the Left, not so much over her lack of experience, but over the perception that she is more conservative than retiring Justice John Paul Stevens. Salon’s Glenn Greenwald is the leading agitator in this movement. A number of liberals have argued in response that the remedy to a 5-4 conservative Court is not a more liberal counterbalance, as Greenwald claims, but someone who can move Justice Anthony Kennedy’s swing vote to the liberal side. The New Republic’s Jeffrey Rosen claims that Kagan has “demonstrated success winning over skeptical conservatives at every stage of her career.” Thus, she is “just what the doctor ordered.” The American Prospect has its own take on whether Kennedy is persuadable, but the more important question here is not whether the tactic will work, but whether the President should be nominating judges for this reason, as opposed to, say, his belief that she be an “impartial guardian of the law.”
-Marc
Rookie rules
Is Elena Kagan ready for the high court?
President Obama is expected today to nominate current Solicitor General Elena Kagan to the Supreme Court. Among the now routine ideological controversies that surround all Supreme Court nominations, Kagan adds one unusual particularity to the mix. She would be the first nominee since longtime Chief Justice William Rehnquist to ascend to the high court without having previously served on the bench.
Expect Kagan’s lack of adjudicating experience to become one of several criticisms forwarded by Republicans on the Senate Judiciary Committee. Kagan has an impressive resume, but do the detractors who point to her lack of judicial experience have an argument? Read more
Democracy & judicial review
The dangers of an overly partisian Supreme Court
Daniel had a really good post yesterday on the Supreme Court and the tension between the need for judicial review and a respect for democratically enacted laws. While I agree with almost everything he said I would take issue with the notion that purely partisan nominations would necessarily “infuse a measure of legitimacy into an otherwise undemocratic institution.” Daniel explains: Read more
Guest post: Picking the next Supreme Court Justice
What characteristics should Obama be looking for?
On April 9th 2010, John Paul Stevens, Associate Justice of the Supreme Court of the United States, penned a letter addressed to President Barack Obama. In it, the oldest member of America’s highest judicial body announced his imminent retirement, paving the way for the current White House resident’s second SCOTUS nomination in as many years.
The question of who Obama should choose to present before the Senate to take up the vacant position has already generated a hot debate, and it seems that two key tensions underscore much of what has been said on the matter.
The first tension is between partisanship and the principle of wisdom. It is common for presidents to nominate candidates that broadly share their values. Indeed, the current ‘conservative’ composition of the Supreme Court owes much to the fact that six of its nine members were recommended by Republican presidents (although it’s worth noting that Stevens himself –regarded as a liberal voice– is one of them, nominated by President Gerald Ford). On the face of it, one might contend that so long as both Democrats and Republicans partake in this ongoing tug-of-war, there appears to be some degree of fairness involved. Read more
Is it ever ok to discriminate?
The Supreme Court today heard arguments in the case of Christian Legal Society v. Martinez. In the case, the University of California refused to recognize or provide funding or meeting space to the Christian group because it restricted membership to those who signed a “statement of faith.” The University argued that it had the right to insist that any student group it officially recognized admit any student. The Christian Legal Society challenged this, appealing the case all the way up to the Supreme Court.
Constitutional law aside, should an organization be allowed to restrict membership — that is discriminate — on the basis of an individual’s belief?
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