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
First principles and the court
Sam linked to E.J. Dionne’s Washington Post piece which, as Sam writes, tends to “justify our existence.” I’d first like to thank Mr. Dionne for this affirmation.
Dionne’s argument is something many liberals/progressives have been thinking for quite a while. The Supreme Court has moved substantially to the right in the past 20 years. The court’s most liberal current members would be unrecognizable as such to the Warren court. Dionne argues that this is due to a shift in first principles; the idea that the court must avoid “judicial activism” is now the guiding principle.
Dionne’s arguement is a familiar one, and one to which I won’t disagree. “Above all,” Dionne writes, “it should become clear that the danger of judicial activism now comes from the right, not the left.” Dionne calls for liberals to start making this case more publicly.
I wonder, however, if the more sage advice might be for liberals to abandon the rhetoric of judicial activism entirely. That term has been thoroughly appropriated by conservatives over the last 20 years; it’s hard to imagine liberals winning on convincing the public that the activist tables have been turned.
If liberals truly want to win this debate, they should make an affirmative argument to first principles — that the role of the court is to fight for justice, ensure fairness, etc. Dionne is right that Citizens United can likely be an important campaign talking point for liberals. However, I don’t think the most salient point will be that the court overturned precedent that the public hasn’t heard of; it will be that, substantively, the court has increased the role of corporations in politics.
-John
Law & animal rights
Today, the Supreme Court struck down a federal law that criminalized “dogfighting videos or other depictions of animal cruelty.” The Court declared the law overly broad but said that it was possible that a narrower law could be constitutional. An especially noteworthy section of Chief Justice John Roberts’ majority opinion was the rejection of the idea that animal cruelty should be treated like child pornography and be exempted from First Amendment protection. 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?
Fish on the First, Continued
Stanley Fish followed up on his original explanation of the Supreme Court’s decision in Citizens United v. FEC with an examination of three contentious First Amendment questions: Does money equal speech? Should corporations share our rights as citizens? And, where’s the line between (free) speech and (punishable) action?
Fish does little to provide answers to a frustratingly confused public. The bewildering ridiculousness of First Amendment jurisprudence is at once infuriating and beautiful, apparently…
[I]t’s an act of prestidigitation, a magical sleight of hand, a game whose rules are continually changing, a discourse that can reach any conclusion at all including one you would have thought impossible. It hasn’t got a principled leg to stand on, and yet it keeps moving forward and producing real world consequences. In short, it is an absolutely marvelous achievement, something to be admired as a wonder even when you are distressed by the content of what it has just produced.
-Colin
Fish on the First
Stanley Fish provides an interesting analysis of the Supreme Court’s reasoning in Citizens United.
-Jake
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