This past Monday the 2010-2011 term of the Supreme Court began with the traditional proclamation by the marshal of the Court: "Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!" – Oyez meaning “Hear Ye.” Each subsequent session of the term will be heralded in the same way.
Article III of the Constitution establishes a Supreme Court and “such inferior courts as the Congress may from time to time ordain and establish.” The Constitution does not specify the number of justices on the Supreme or any other court.
It would be the Judiciary Act of 1789, establishing the Federal court system, which set the number of Supreme Court justices at one chief and five associates. As the country grew, and along with it more circuit courts and increased case volume, Congress increased the Supreme Court to seven in 1807, and then nine in 1837 then ten in 1863. The Judiciary Act of 1869 put the number of justices at nine where it has remained since.
However, during the first term of Franklin D. Roosevelt, the Supreme Court ruled many of his New Deal programs unconstitutional, infuriating him. His infamous “court packing” scheme attempted to add an additional justice for every justice who reached the age of 70 ½ years, allegedly to ease the workload of the older judges, but in fact to expand the Court to 15 justices, the majority of whom would then be favorable to Roosevelt’s political agenda. The attempt failed miserably. Public opinion and his own party turned against him. But in the end, Roosevelt got a Court to his liking when seven of the nine justices retired or died, allowing him to replace them with people inclined to favor his political agenda.
Knowledge of this tidbit of Court history is relevant because Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee and founding member of the Dumb Ideas of the Month Club, attempted last week to pull his version of court packing. He introduced a bill to allow a retired Supreme Court justice to fill in when one of the sitting nine recuses himself – or more to the point of Leahy’s concern, herself. Leahy, who openly frets over 4-4 decisions that allow the lower court decision to stand – something that happens rarely, incidentally – is worried about the number of recusals the newest Court justice, Eleana Kagan, has announced – 25 so far out of the 52 cases the Court has accepted – which loses a reliable liberal vote. Her recusals are due to the fact that she was Solicitor General before Obama nominated her to replace John Paul Stevens, another liberal. As the SG, she was essentially the 10th justice. The Court often asks the SG’s opinion on whether a case ought to be reviewed, and much of the Court’s caseload comes from government challenges to laws and policies the SG must defend. The SG and the Court work so closely that it would be unpardonable if Kagan didn’t recuse herself from any case she has touched.
Apparently Leahy tosses and turns each night grieving that the Supreme Court, unlike the courts in 39 states and the District of Columbia, has no authority to replace a recused justice in order to allow an en banc hearing of every case. In fact, federal law specifically forbids it. When a justice is recused, or retires, or dies, but a successor has not yet been confirmed to fill the open seat, the Supreme Court sits as an eight-judge banc – or less if there are multiple recusals or vacancies.
Justices can often dispose of potential conflicts of interest that necessitate recusal. The Court confirmed last week, for example, that Chief Justice John G. Roberts Jr., who has recused himself previously in cases involving Wyeth's parent company, Pfizer, has sold his stock in the company. Two cases involving the pharmaceutical company come before the Court this term. If Roberts had not sold his stock, there would have been only seven justices able to hear the case.
The beginning of this new term brought the usual lamentations on the front pages of major newspapers concerning the partisanship of the present Court. The Los Angeles Times, for example, bemoaned:
“As the Supreme Court begins its new term Monday, its sixth with John G. Roberts Jr. as Chief Justice, the reality is that this is the most conservative court since the mid-1930s. Since Richard Nixon ran for president in 1968, conservatives have sought to change constitutional law, and they have succeeded in virtually every area.”
This kind of journalistic hand-wringing seems more like a thinly veiled attempt to influence the ideological leaning of Justice Anthony Kennedy, the frequent swing vote in a mostly centrist Court, judging from the number of 5-4 decisions. This Court and others that preceded it are no more than a quirk of age, illness, and presidential elections. From 1968 to 2009, there were only two Democrat appointees to the Court, Ginsburg and Breyer, in part because Carter is one of the few presidents who did not get to fill a vacancy. Republicans Nixon, Ford, Reagan and both Bushes filled 12 vacancies and their picks included four constitutional conservatives who are now on the court: Roberts, Scalia, Thomas and Alito.
If the court is split 5 to 4, as is often the case in the most high-profile and important cases, the four constitutional conservatives are usually joined by Kennedy. In the 2009-2010 term, for example, there were 12 cases in which Roberts, Scalia, Thomas and Alito were on one side, with Stevens, Ginsburg, Breyer and Sotomayor on the other. Kennedy sided with the conservatives in nine of these cases and with the liberals in only three. Similarly, the year before, there were 16 decisions that were split 5 to 4 along ideological lines, and Kennedy sided with the conservatives in 11 and with the liberals in five. During the five years of the Roberts court, Kennedy has been with the conservatives more than twice as often as with the liberals in ideologically split 5-4 decisions.
The court's actions this term are more likely to make conservative Court-watchers happy than liberal Court-watchers. Because of Kagan’s recusals, close cases in which Kennedy goes with the Court conservatives will be won 5 to 3. Cases in which he goes with the liberals will fail with 4 to 4 ties because it lets the lower court ruling stand, allowing the conservatives to again win. Kagan's recusals have essentially made the liberal banc a three-member minority for at least 25 cases, and maybe even more since the Court will likely take up to 100 additional cases to fill its calendar.
Did Leahy see this coming? His court packing scheme wouldn’t have anything to do with the fact that there are only three living retired justices – Sandra Day O'Connor, David Souter, and John Paul Stevens – two of whom are card-carrying liberals and the other, O’Connor, was a centrist who turned liberal as she grew older, would it? It wouldn’t have anything to do with the fact that ObamaCare hasn’t yet worked its way up to the high Court and we don’t know if Kagan’s fingerprints are on any of the OBCare lawsuits currently in lower courts, would it? If she was involved in any of these cases, or derivatives of them, she would be off the bench when a liberal vote is most needed. Leahy’s motive is obvious.
Leahy's bill won’t pass constitutional muster, however, because it inserts Congress into filling seats on the Court when that has always been the constitutional prerogative of the executive. It’s true that his bill would allow the justices of the Court to determine which retired ex-Justice was chosen to fill a recusal – something that sounds fair – but it more likely would encourage horse-trading between the liberal and conservative wings of the Court. With a recusal, those wings, which are currently matched at four each, would become uneven. Given the ideology of the three replacement candidates, a liberal recusal would repair the ideological balance, whereas a conservative recusal would shift the Court left. Rather than encouraging recusals, Leahy’s Dumb Idea of the Month would discourage them, even when they were clearly in order. Let’s hope that other Senators see these flaws as well as the constitutional ones and send Leahy’s bill to the round file.
As for the accusation that the Court is conservatively activist, Obama has done more to promote that idea than the media. His preachy talk-down to the justices attending his State of the Union address after their Citizens United ruling was constitutionally reprehensible. In a recent Rolling Stone interview, Obama again whined about Citizens United:
“If we want the kind of country that respects civil rights and civil liberties, we'd better fight in this election. And right now, we are getting outspent eight to one by these 527s that the Roberts court says can spend with impunity without disclosing where their money's coming from.”
Ironically, one of the cases that Kagan had to recuse herself from was a First Amendment free speech case like Citizens United that was heard Wednesday.
Instead of finagling with recusal work-around tricks, the question liberals ought to be asking is why, during Kagan’s confirmation hearings, she so badly underestimated the number of recusals she thought would be necessary. Eleven was her guess at that time and she’s at more than twice that number with probably more to go as the Court’s calendar continues to fill.
Coming from an academic administrative career, Kagan has never practiced law, has never been a judge, and her short stint as SG displayed a less than average performance. However, the SG job caused her to touch a lot of cases now coming to the Court. It’s patently obvious that Obama nominated her for her politics rather than her legal scholarship. But had her recusals been more accurately estimated, liberals might have wanted to rethink their support for her confirmation.
It was expected that Kagan would make little difference on the Court, because she, a liberal, replaced Stevens, a liberal. It turns out, in fact, that her presence on the Court will be more felt by its absence.
Article III of the Constitution establishes a Supreme Court and “such inferior courts as the Congress may from time to time ordain and establish.” The Constitution does not specify the number of justices on the Supreme or any other court.
It would be the Judiciary Act of 1789, establishing the Federal court system, which set the number of Supreme Court justices at one chief and five associates. As the country grew, and along with it more circuit courts and increased case volume, Congress increased the Supreme Court to seven in 1807, and then nine in 1837 then ten in 1863. The Judiciary Act of 1869 put the number of justices at nine where it has remained since.
However, during the first term of Franklin D. Roosevelt, the Supreme Court ruled many of his New Deal programs unconstitutional, infuriating him. His infamous “court packing” scheme attempted to add an additional justice for every justice who reached the age of 70 ½ years, allegedly to ease the workload of the older judges, but in fact to expand the Court to 15 justices, the majority of whom would then be favorable to Roosevelt’s political agenda. The attempt failed miserably. Public opinion and his own party turned against him. But in the end, Roosevelt got a Court to his liking when seven of the nine justices retired or died, allowing him to replace them with people inclined to favor his political agenda.
Knowledge of this tidbit of Court history is relevant because Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee and founding member of the Dumb Ideas of the Month Club, attempted last week to pull his version of court packing. He introduced a bill to allow a retired Supreme Court justice to fill in when one of the sitting nine recuses himself – or more to the point of Leahy’s concern, herself. Leahy, who openly frets over 4-4 decisions that allow the lower court decision to stand – something that happens rarely, incidentally – is worried about the number of recusals the newest Court justice, Eleana Kagan, has announced – 25 so far out of the 52 cases the Court has accepted – which loses a reliable liberal vote. Her recusals are due to the fact that she was Solicitor General before Obama nominated her to replace John Paul Stevens, another liberal. As the SG, she was essentially the 10th justice. The Court often asks the SG’s opinion on whether a case ought to be reviewed, and much of the Court’s caseload comes from government challenges to laws and policies the SG must defend. The SG and the Court work so closely that it would be unpardonable if Kagan didn’t recuse herself from any case she has touched.
Apparently Leahy tosses and turns each night grieving that the Supreme Court, unlike the courts in 39 states and the District of Columbia, has no authority to replace a recused justice in order to allow an en banc hearing of every case. In fact, federal law specifically forbids it. When a justice is recused, or retires, or dies, but a successor has not yet been confirmed to fill the open seat, the Supreme Court sits as an eight-judge banc – or less if there are multiple recusals or vacancies.
Justices can often dispose of potential conflicts of interest that necessitate recusal. The Court confirmed last week, for example, that Chief Justice John G. Roberts Jr., who has recused himself previously in cases involving Wyeth's parent company, Pfizer, has sold his stock in the company. Two cases involving the pharmaceutical company come before the Court this term. If Roberts had not sold his stock, there would have been only seven justices able to hear the case.
The beginning of this new term brought the usual lamentations on the front pages of major newspapers concerning the partisanship of the present Court. The Los Angeles Times, for example, bemoaned:
“As the Supreme Court begins its new term Monday, its sixth with John G. Roberts Jr. as Chief Justice, the reality is that this is the most conservative court since the mid-1930s. Since Richard Nixon ran for president in 1968, conservatives have sought to change constitutional law, and they have succeeded in virtually every area.”
This kind of journalistic hand-wringing seems more like a thinly veiled attempt to influence the ideological leaning of Justice Anthony Kennedy, the frequent swing vote in a mostly centrist Court, judging from the number of 5-4 decisions. This Court and others that preceded it are no more than a quirk of age, illness, and presidential elections. From 1968 to 2009, there were only two Democrat appointees to the Court, Ginsburg and Breyer, in part because Carter is one of the few presidents who did not get to fill a vacancy. Republicans Nixon, Ford, Reagan and both Bushes filled 12 vacancies and their picks included four constitutional conservatives who are now on the court: Roberts, Scalia, Thomas and Alito.
If the court is split 5 to 4, as is often the case in the most high-profile and important cases, the four constitutional conservatives are usually joined by Kennedy. In the 2009-2010 term, for example, there were 12 cases in which Roberts, Scalia, Thomas and Alito were on one side, with Stevens, Ginsburg, Breyer and Sotomayor on the other. Kennedy sided with the conservatives in nine of these cases and with the liberals in only three. Similarly, the year before, there were 16 decisions that were split 5 to 4 along ideological lines, and Kennedy sided with the conservatives in 11 and with the liberals in five. During the five years of the Roberts court, Kennedy has been with the conservatives more than twice as often as with the liberals in ideologically split 5-4 decisions.
The court's actions this term are more likely to make conservative Court-watchers happy than liberal Court-watchers. Because of Kagan’s recusals, close cases in which Kennedy goes with the Court conservatives will be won 5 to 3. Cases in which he goes with the liberals will fail with 4 to 4 ties because it lets the lower court ruling stand, allowing the conservatives to again win. Kagan's recusals have essentially made the liberal banc a three-member minority for at least 25 cases, and maybe even more since the Court will likely take up to 100 additional cases to fill its calendar.
Did Leahy see this coming? His court packing scheme wouldn’t have anything to do with the fact that there are only three living retired justices – Sandra Day O'Connor, David Souter, and John Paul Stevens – two of whom are card-carrying liberals and the other, O’Connor, was a centrist who turned liberal as she grew older, would it? It wouldn’t have anything to do with the fact that ObamaCare hasn’t yet worked its way up to the high Court and we don’t know if Kagan’s fingerprints are on any of the OBCare lawsuits currently in lower courts, would it? If she was involved in any of these cases, or derivatives of them, she would be off the bench when a liberal vote is most needed. Leahy’s motive is obvious.
Leahy's bill won’t pass constitutional muster, however, because it inserts Congress into filling seats on the Court when that has always been the constitutional prerogative of the executive. It’s true that his bill would allow the justices of the Court to determine which retired ex-Justice was chosen to fill a recusal – something that sounds fair – but it more likely would encourage horse-trading between the liberal and conservative wings of the Court. With a recusal, those wings, which are currently matched at four each, would become uneven. Given the ideology of the three replacement candidates, a liberal recusal would repair the ideological balance, whereas a conservative recusal would shift the Court left. Rather than encouraging recusals, Leahy’s Dumb Idea of the Month would discourage them, even when they were clearly in order. Let’s hope that other Senators see these flaws as well as the constitutional ones and send Leahy’s bill to the round file.
As for the accusation that the Court is conservatively activist, Obama has done more to promote that idea than the media. His preachy talk-down to the justices attending his State of the Union address after their Citizens United ruling was constitutionally reprehensible. In a recent Rolling Stone interview, Obama again whined about Citizens United:
“If we want the kind of country that respects civil rights and civil liberties, we'd better fight in this election. And right now, we are getting outspent eight to one by these 527s that the Roberts court says can spend with impunity without disclosing where their money's coming from.”
Ironically, one of the cases that Kagan had to recuse herself from was a First Amendment free speech case like Citizens United that was heard Wednesday.
Instead of finagling with recusal work-around tricks, the question liberals ought to be asking is why, during Kagan’s confirmation hearings, she so badly underestimated the number of recusals she thought would be necessary. Eleven was her guess at that time and she’s at more than twice that number with probably more to go as the Court’s calendar continues to fill.
Coming from an academic administrative career, Kagan has never practiced law, has never been a judge, and her short stint as SG displayed a less than average performance. However, the SG job caused her to touch a lot of cases now coming to the Court. It’s patently obvious that Obama nominated her for her politics rather than her legal scholarship. But had her recusals been more accurately estimated, liberals might have wanted to rethink their support for her confirmation.
It was expected that Kagan would make little difference on the Court, because she, a liberal, replaced Stevens, a liberal. It turns out, in fact, that her presence on the Court will be more felt by its absence.
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