Tuesday, June 19, 2007

The Karl Rovification of the Supreme Court

As I noted last week (here), Tom Goldstein is projecting the current Supreme Court Term as VERY conservative (here). Jeff Toobin makes the same point in The New Yorker (available here, and while you're over at The New Yorker, check out Seymour Hersh's utterly frightening account of what happened to General Taguba for uncovering the truth about Abu Ghraib, but then come back to Dorf on Law). Here I'll tentatively observe something about the character of the 5-4 decisions we're seeing. Perhaps a close reading of all of this Term's cases wouldn't bear this out, but my subjective and informal impression is that when the Court splits 5 (Roberts/Scalia/Kennedy/Thomas/Alito) - 4 (Stevens/Souter/Ginsburg/Breyer), the 5 are basically ignoring or dismissing objections raised by the 4.

Gonzales v. Carhart is a nice example. The dissenters were practically running around with their hair on fire saying that there was no way to reconcile the decision with the 2000 decision in Nebraska v. Carhart; yet Justice Kennedy's opinion, while drawing a plausible distinction with respect to the notice issue, basically punted on distinguishing the Nebraska case with respect to the health exception. The majority could have said it was overruling the Nebraska case, but for their own reasons they didn't want to, so their response to the dissenters was the jurisprudential equivalent of a shrug.

Likewise in last week's ruling in Bowles v. Russell, in which the Court held that the 14 day maximum extension for filing a notice of appeal is jurisdictional, thus throwing out the appeal of a man who filed two days late, after being told by the district judge that the deadline was still a day away. Justice Souter just can't seem to get the majority to focus any attention on the fact that recent unanimous decisions reject the definition of "jurisdictional" deadlines that Justice Thomas's opinion adopts. The closest Justice Thomas comes to addressing Souter's objections is to dismiss them as dicta. (My FindLaw column for tomorrow addresses the merits of Bowles. Hint as to my take: I call the majority decision "Kafkaesque.")

What seems to be happening on the Court has some similarity to Karl Rove's political strategy of solidifying the base and ignoring anybody to the left of the exact median vote. Like President Bush, Chief Justice Roberts is happy to have bipartisan support for his decisions, where bipartisan means that he rules as he wants and is happy to have the liberals join him sometimes. The nine Justices are not the entire American electorate, of course, and so the strategy is more predictable at the Court. As long as Roberts et al can get Kennedy's vote, they don't really care what Stevens, Souter, Breyer or Ginsburg think.

Sure, one occasionally sees an unusual lineup, and contrary to Toobin's suggestion otherwise, none of this appears to be personal. Justice Ginsburg may be expressing professional annoyance when she reads her dissents from the bench, but she can still socialize with the Scalias. And Justice Breyer's standard stump speech continues to include the assurance that the Justices play nicely with one another. But the continued observance of inter-personal niceties should not obscure the fact that at a jurisprudential level an important shift may be underway.

12 comments:

egarber said...
This comment has been removed by the author.
egarber said...

I wonder if this majority will hold if new executive power cases reach the high court, particularly in the area of "war on terror" detainees.

Somebody correct me where I blow this, but I recall Scalia partnering with Stevens in the Hamdi case (2004?) to say the Court didn't go far enough in protecting civil liberties for Americans during "war".

As I recall, the majority basically said that an American *could* be held as a combatant provided a competent tribunal made such a finding. But Scalia / Stevens wrote that absent a formal suspension of habeas corpus, Hamdi should either be charged or released. Scalia criticized others on the court for trying to create an ad-hoc process.

I wonder -- or maybe I'm just hoping -- if that means we could see some strange bedfellows in future executive power cases dealing with the "war on terror".

PG said...

mdorf,
What do you think about the theory that the Court, particularly the conservative end, is trying to push Congress to write statutes better by interpreting them in an almost absurdly strict manner? I think this is a reasonable explanation of a unanimous decision such as Long Island Care at Home, and you get a flavor of it in Ginsburg's Ledbetter dissent when she calls for legislative change to clarify the tolling period even as she rips on the majority's interpretation.

egarber,
I hear you with Scalia on Hamdi, but I think inasmuch as the Republican Congress enabled some of the executive powers, as in Boumedienne, Scalia would say that it's all A-ok. His concern was kind of what I've described above, that neither the executive nor the judiciary short-cut the legislature's responsibility to write competent legislation that covers what must be done for the nation. If Congress specifically suspended habeas for persons determined to be "(unlawful) enemy combatants," then Scalia probably will say they did their job and there's no further objection to make.

Michael C. Dorf said...

pg: There is an old argument for formalism in statutory interpretation as a means of disciplining Congress, but it's open to at least two very powerful criticisms:
1) What gives the Court the power to tell Congress how to do its job (absent an unconstitutional statute), as opposed to figuring out what Congress has actually done?
2) The argument for formalism assumes that Congress is closely attentive to what the Court does, when in fact there are institutional reasons internal to Congress that may sometimes preclude statutory clarity, regardless of the court-imposed incentives.

Sobek said...

"What gives the Court the power to tell Congress how to do its job (absent an unconstitutional statute), as opposed to figuring out what Congress has actually done?"

Why is that worse than the Court simply doing Congress' job for it? That would have been the effect of Ginsburg's opinion in Ledbetter had she carried the day. Her view of gender discrimination essentially writes the statute of limitations out of the statute entirely (how could the limit ever run under her reading?), and yet she doesn't seem to have any qualms about simply assuming Congress' duties and legislating something closer to her preference.

"The argument for formalism assumes that Congress is closely attentive to what the Court does..."

Heh. That's an obviously flawed assumption.

Howard Wasserman said...

A third criticism of the absurd- formalism-leads-to-better-statutes argument, at least as it pertains to Bowles:

Congress could not have been any clearer that the statute was not jurisdictional because it never mentioned the word "jurisdiction." How could Congress write the statute any more clearly? Must it specifically state "This statute is not jurisdictional"? *That* seems an absurd burden.

路傑 said...

免費A片, ut聊天室, AV女優, 美女視訊, 免費成人影片, 成人論壇, 情色交友, 免費AV, 線上a片, 日本美女寫真集, 同志聊天室, 聊天室交友, 成人文章, 成人圖片區, 色情網站, 辣妹視訊, 美女交友, 微風成人區, 色美媚部落格, 色情影片, 成人影片, 成人網站, 免費A片, 上班族聊天室, A片,H漫, 18成人, a漫, av dvd, 一夜情聊天室, 微風成人, 成人圖片, 成人漫畫, 情色網, 日本A片, 免費A片下載, 性愛, 成人交友, 嘟嘟成人網, 嘟嘟成人網, 成人貼圖, 成人電影, 成人, 中部人聊天室, 080中部人聊天室, 成人貼圖, 成人小說, 成人文章, 成人圖片區, 免費成人影片, 成人遊戲, 微風成人, 愛情公寓, 成人電影, A片, 情色, 情色貼圖, 情色文學, 做愛, 成人遊戲, 成人影城, 色情聊天室, 色情小說, 一葉情貼圖片區, 情色小說, 色情, 寄情築園小遊戲, 色情遊戲, 成人網站, 麗的色遊戲, 色情網站, 成人論壇, 情色視訊, 情色電影, aio交友愛情館, 言情小說, 愛情小說, 色情A片, 情色論壇, 自拍, 癡漢, , 俱樂部, 豆豆聊天室, 聊天室, 色情影片, 視訊聊天室, 免費視訊聊天, 免費視訊, 視訊交友90739 情人視訊網影音視訊聊天室 免費視訊聊天室 視訊聊天 視訊交友 美女視訊 視訊美女 視訊 免費視訊 免費視訊聊天 視訊聊天室 辣妹視訊 一夜情 色情a片 aio交友愛情館 情色電影 情色視訊 色情遊戲 色情 情色小說 一葉情貼圖片區 色情小說 色情聊天室 情色交友 成人論壇 成人網站 色情網站 情色論壇 小高聊天室 女同志聊天室 6K聊天室 080苗栗人聊天室 080聊天室 聊天室尋夢園 UT男同志聊天室 男同志聊天室 尋夢園聊天室 UT聊天室 聊天室 豆豆聊天室 A片 成人電影 成人貼圖 嘟嘟成人網 美女交友 本土自拍 成人交友 成人影片http://ssff01.3b8mm.com/

kutyhgvd said...

It is the holic gold which makes me very happy these days, my brother says holic money is his favorite games gold he likes, he usually holic online gold to start his game and most of the time he will win the cheap holic gold back and give me some holic online money to play the game.

. said...

酒店喝酒,禮服店,酒店小姐,酒店經紀,制服店,便服店,鋼琴酒吧,兼差,酒店兼差,酒店打工,伴唱小姐,暑假打工,酒店上班,日式酒店,舞廳,ktv酒店,酒店,酒店公關,酒店小姐,理容院,日領,龍亨,學生兼差,酒店兼差,酒店上班,酒店打工,禮服酒店,禮服店,酒店小姐,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,經紀 彩色爆米花,經紀人 彩色爆米花,酒店傳播,酒店經紀 彩色爆米花,爆米花,童裝,童裝拍賣,童裝大盤,童裝寄賣,童裝批貨,酒店,酒店,童裝切貨,酒店,GAP童裝,酒店,酒店 ,禮服店 , 酒店小姐,酒店經紀,酒店兼差,寒暑假打工,招待所,

. said...

酒店喝酒,禮服店,酒店小姐,制服店,便服店,鋼琴酒吧,兼差,酒店兼差,酒店打工,伴唱小姐,暑假打工,酒店上班,日式酒店,ktv酒店,酒店,酒店公關,酒店小姐,酒店兼差,酒店上班,酒店打工,禮服酒店,禮服店,酒店小姐,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,經紀 彩色爆米花,經紀人 彩色爆米花,酒店傳播,酒店經紀 彩色爆米花,爆米花,童裝,童裝拍賣,童裝大盤,童裝寄賣,童裝批貨,酒店,酒店,童裝切貨,酒店,GAP童裝,酒店,酒店 ,禮服店 , 酒店小姐,酒店經紀,酒店兼差,寒暑假打工,招待所,酒店小姐,酒店兼差,寒暑假打工,酒店上班,暑假打工,酒店公關,酒店兼職,酒店經紀

wsty said...

www.eshooes.com .
www.pumafr.com.
www.myshoess.com.

www.eshooes.com .
www.pumafr.com.
www.myshoess.com.
[url=http://www.pumafr.com]puma shoes[/url]
[url=http://www.eshooes.com]chaussures puma[/url]
[url=http://www.myshoess.com]nike air max ltd[/url]

freefun0616 said...

酒店經紀人, 菲梵酒店經紀, 酒店經紀, 禮服酒店上班, 酒店小姐兼職, 便服酒店經紀, 酒店打工經紀, 制服酒店工作, 專業酒店經紀, 合法酒店經紀, 酒店暑假打工, 酒店寒假打工, 酒店經紀人, 菲梵酒店經紀, 酒店經紀, 禮服酒店上班, 酒店經紀人, 菲梵酒店經紀, 酒店經紀, 禮服酒店上班, 酒店小姐兼職, 便服酒店工作, 酒店打工經紀, 制服酒店經紀, 專業酒店經紀, 合法酒店經紀, 酒店暑假打工, 酒店寒假打工, 酒店經紀人, 菲梵酒店經紀, 酒店經紀, 禮服酒店上班, 酒店小姐兼職, 便服酒店工作, 酒店打工經紀, 制服酒店經紀,,