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.
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
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 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
Professor David Rose says that asking Kagan her moral framework is a relevant question in considering her fitness for the bench (particularly, is she or isn’t she a consequentialist?):
This is a timely issue. If confirmed, Ms. Kagan may hear a constitutional challenge to the mandatory insurance requirement of the new health-care law.
A nonconsequentialist judge would examine whether the Constitution empowers the federal government to require citizens to purchase a private good (health insurance) and make a ruling on that basis alone.
But a consequentialist judge would look beyond the law and consider the insurance mandate’s impact on society. Using this criterion, the consequentialist judge might see the mandate as a “benefit to public health” and a “compelling state interest.” Such thinking would lead to a loose interpretation of the Commerce Clause and an affirmation of an unprecedented loss of personal liberty in America.
What’s odd to me is not the questions Rose raised, but the fact that he is a professor of economics. Are there no moral philosophers or legal philosophers interested in this question?
When is it appropriate for American courts to reference foreign law?
The other day Jake posted on the Supreme Court ruling that teenagers cannot be sentenced to life in prison for non-homicide crimes. In his majority opinion, Justice Anthony Kennedy referenced the consensus in the international community against such punishments:
There is support for our conclusion in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over.
In other recent decisions outlawing the death penalty for juveniles and overturning laws prohibiting sodomy the court has also referenced international law. These cases raise an interesting question, what role, if any, should the opinions of foreign nations play in our constitutional interpretation? Read more
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?
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.”
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
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