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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, July 02, 2016

SCOTUS End of Term Watch

[I will be back Tuesday, so here is a holiday link.]

Twitter provides constant legal news (among other things) with Chris Geidner (Buzzfeed) and Kimberly Robinson (Bloomberg)  favorites.  Geidner comes off as a bit of a nut at times (e.g., his Hamilton and Good Wife fixations) but has an impressive resume as a lawyer and journalist.  Robinson's SCOTUS end of term numbers wrap-up (less than 70 opinions from cases with full argument).

The big news this term was the surprise (in hindsight, a guy in his late seventies dying is not really but other than Rehnquist -- who had fought cancer for around a year already at the time -- dying in office was just not something that really happened; it really shocked me at the time) eight justice Court.  The Republicans simply didn't want to do their job and have Garland hearings, even though he's basically the best they could hope for in this position.  The odds of a Trump presidency is low.  This alone was a "fu" to the country and shows they should lose the Senate.

The Robinson article notes that Thomas has thirty-eight opinions in argued cases (figure a few of these, if he was alive, Scalia would handle; but many of these were Thomas solo jobs regardless). Thomas also spoke during oral argument, for those in the know, about as remarkable as "Garbo talks" was back in the day.  The "Thomas Constitution" (my "Joe's Constitution" is still available online!)  theme was addressed by a few commentators.  
He is so convinced of the wisdom of his approach to the law that he rejects practically the whole canon of constitutional law. It’s an act of startling self-confidence, but a deeply isolating one as well. Even his ideological allies, who mostly come out the same way on cases, recognize that they must dwell within the world that their colleagues and predecessors created. Thomas, in contrast, has his own constitutional law, which he alone honors and applies.
It has been noted that Justice Alito (though in this case Roberts joined in, repeatedly it was Alito/Thomas, often in relation to orders)  has shown some annoyance (strong disagreement would be a nicer way to put it) with how the Court has been deciding various issues.  Highlights include his separate stun gun concurrence, his snarky dissent in a federal statutory criminal case (the one where includes a "dialogue" at sentencing) and dissents from the bench in both the affirmative action and abortion cases. Some of these were joined by Roberts.  It has been noted that there appears to be a new "center" -- Kagan, Breyer and Kennedy.  Toss in Garland,* you might truly have a Breyer/Kagan Court.

[Deepak Gupta in the ACS term review at one point argued that multiple opinions this term were a sort of a compromise pablum that avoided the Court needing to admit they were more split than the few 4-4 opinions suggested. Some like this approach to reduce the power of the Court though it has its limitations regarding clarity of national law and we are going to get a ninth justice eventually.  If you like minimalism, Garland might be the best bet there.  Anyway, this involved various compromises, like the contraceptives ruling, and those three seem to have had a large role, often Roberts going along without comment.]

Thomas is not a big one on stare decisis or the limitations of multi-member institutions that require some degree of moderation and compromise. As seen in the medicinal marijuana case, this doesn't always have a necessarily conservative result.  But, this isn't that off (though find the guy a tad excessive):
One final word about hubris before I go. Randy Barnett goes out of his way to praise Justice Thomas for willing to overturn generations of Supreme Court precedent if text and history so demand. But that precedent is the result of a complex combination of prior Justices' calculations of law, politics, social reactions, counter-reactions and values. Certainly times change and with those changes so should Court decisions. But it takes a special insight, a special intelligence, and a special feeling of superiority to think that one's own perspective on the complex relationships between vague text, contested history, and the rights and privileges of our people and the our governments can be resolved neutrally through an originalist methodology, and then end up with the political platform of the 1992 Republican Party. I envy that kind of insight.
The important part of this is probably the "complex combination" part that explains (and on certain blogs etc., this is something that some liberals at times miss) the nature of various opinions. They are imperfect compromises, not ideal on the facts or the law in certain respects.  It is fine to critique them, if one realizes the reasons that went into them.  Sometimes, the opinions are imperfect given the imperfections of the justices (though that's part of reality too).  But, it's more than that.

If things go as they have in recent years, there will be scheduled order days during the summer as well as any ad hoc orders necessary. The future of the Court is coming. Not quite here yet.


* I stick to my overall belief that Garland, taking everything into consideration, was a very good choice.  It is a failure that those who care about civics have a strong reason to find quite depressing if (as it seems likely) he won't be confirmed during the Obama presidency.  If things worked as they should, we should have had a nine justice bench by October. Plus, the Republicans got a true moderate, apparently something of a minimalist and one who won't be there as long as others. Win win. 

But, if he does not get confirmed, I really hope Clinton (as it seems would be necessary) does not re-nominate him. (Knock on wood that sanity will prevail there regarding the Clinton part.  If the Republicans retain the Senate -- which is depressingly quite possible -- it's a tougher call.  But even there, I'd at best use him as a back-up.)  You bet, often the house (or White House) wins.  Tough luck.  Let her pick a younger woman and/or minority who is somewhat more liberal.  Screw you assholes.

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