Current Supreme Court Makeup
We now have 4 Conservatives, 4 Liberals and 1 Moderate on the Court.
This means if the next logical Justice to step down is the 85-year-old Stevens, then this will be the real key replacement. It is rumored that he will step down before Bush leaves office.
All this talk of the Court being dominated by the Right is not really true. Before we had two moderates with only three conservatives and four liberals. It is true however that O'Connor would "often" side with the Liberals and Kennedy would "often" side with the Conservatives, which would usually give the liberals a 5 - 4 majority.
However, if Kennedy keeps with his past, then he would now "often" give the court a new 5 - 4 Conservative majority.
I personally hope Bush names Judge Michael W. McConnell for the next seat.
If you think this nomination was rough, the next nominee will be vilified as Hitler re-incarnate no matter who the person is.
The Current Make up of the Court is as Follows: (Name - Age)
Moderates (1)
=============
Kennedy - 69
Liberals (4)
===========
Ginsburg - 72
Stevens - 85
Souter - 66
Breyer - 67
Conservatives (4)
================
Scalia - 69
Thomas - 57
Roberts – 51
Alito – 55
posted by Free Agency Rules @ 3:46 PM
40 comments
40 Comments:
Instead of calling them conservative v. liberal, how about a description that is actually relevant to their jobs? How about sound legal analysis v. not-so-bright. The Supreme Court should not be about conservative and liberal. It should be about the Constitution. Just because one is conservative does not mean he is doing justice to American values. Enough of the petty partisan divides in a realm where they do not belong.
A conservative judge is one who believes that the Constitution is a contract binding the branches of government, not a living document that may be altered at the whim of lawyers in black robes ("Men in Black" by Mark Levin).
Liberal judges think they may "find" in the Constitution authorization for policies that the courts wish to impose. We call this "legislating from the bench." The mysterious "right to privacy" that led to Roe v Wade is one such eggregious example of that practice.
I think the terms fit just fine.
ii,
"The Supreme Court should not be about conservative and liberal. It should be about the Constitution."
I agree, but it has become political because some have choosen to try to do "Social Engineering" because they believe it is their job.
FAR.
Bill,
I have heard Mark on the radio and he is right on!
I also agree with what you said. :)
ii is a lawyer and is also right on that it "should not" be about politics, but it has become such. Reality is reality.
:)
FAR.
Bill -
When you go to law school, let me know. The Constitution is vague in key regards and leaves many issues wide open for interpretation. You cite the right to privacy as an example of reading things into the document, but there are many other issues that play out that have nothing to do with "legislating from the bench", and more to do with constructing a just society with reasonable laws. The terms don't work.
Is it liberal or conservative to believe the due process clause of the 14th amendment incorporates the 5th amendment due process clause and makes it applicable to the states?
Is it liberal or conservative to believe that the commerce clause gives the fed the right to regulate the behavior or local restaurants and doctors?
Does it meet the requirements of due process to subject an individual to the jurisdiction of any place in which his website can be viewed? Even if he doesn't sell anything there?
These issues come up daily and these have more of an impact on our everyday lives than whether some chick gets to off her baby.
Go to law school and then we'll talk.
Hi there II,
I just checked out your blog and it appears that you are an unemployed lawyer. Well done.
We need many more lawyers doing useful things. Helping dad souds like a good thing. And when we finally get some tort reform and a simpler tax code there will be many, many more lawyers looking for work.
But don't you dare patronize me about understanding the Constitution. The Founders wrote a brilliant document easily understood by the people. It is lawyers and judges who have confused the meaning by using it for "Social Engineering." (Thanks FAR).
I could argue your points but fear that engaging with a woman who describes the abortion issue as "whether some chick gets to off her baby" would be fruitless.
My best to your husband.
Bill-
The Constitution is a living document that evolves as society grows otherwise we would be stuck with the same laws and and societal views we had over two hundred years ago. Slavery would still be legal, women would not be able to vote and inter-racial marriage would not be allowed. Just to name a few.
It is the evolution of laws that is the true genius of the Constitution.
Evolution is not limited to species.
Bill -
Spare me the purported insult about being unemployed. I am an entertainment lawyer and my schedule coincides with filming schedule. It's called being on hiatus.
Lawyers and judges have confused the meaning of the Constitution? Where do you get this nonsense? Answer the questions I posed to you earlier so we can all see how clear the document is. Please, I can't wait to be dazzled with your brilliance.
Bill -
Your comment that the Constitution is clear and unambiguous got me wondering what all the lawyers in America spent 3 years studying. I went back to some old law school outlines and found the answer. If the Constitution is so clear, please answer the following questions from the text of the document:
1. The Fifth Amendment says that no person shall "be deprived of life, liberty, or property, without due process of law." What constitutes due process? The Supreme Court says that due process requires notice and a hearing? Is that liberal or conservative? Does that "confuse" the clarity of the Constitution? If you agree with hundreds of years of precedent, how much notice is adequate? If the government plans to take your house, is a phone call to you the day before the hearing adequate? Does it have to be in writing? Why?
2. The First Amendment says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech." Can the government regulate and/or penalize false advertising without abridging freedom of speech? If you say yes, please tell me why and under what circumstances the government can do so.
3. The Second Amendment reads as follows: "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed." Does it infringe the right to bear arms if a license is required? Does it infringe the right to bear arms if kids can't take guns to school? Why?
4. Article 1, Section 8, Clause 3 of the Constiution says that Congress may "regulate Commerce with foreign Nations, and among the several States." Was the 1964 Civil Rights Act, which Congress passed under this power, constitutional? Does medical marijuana in California fall under Congress' power to regulate commerce among the states? How about assisted suicide?
All insults aside, can you answer these questions based upon the text of the document and explain why the answer is conservative or liberal?
II,
haven't we had the discussion about how unwise it is to challenge a reactionary on his obscure, second-hand belief of what the law says? And haven't we both learned the wisdom of not mentioning that frightful term of 'law school'?
The reality of it is this: reactionaries are uncomfortable with some freedoms granted under the constitution and subsequently interpreted from it. That's why you have a drooling, lecherous nutjob like Thomas saying that the 1st Amendment does not preclude the states from establishing a state church. On the other hand, I have yet to hear a good explanation from any reactionary what the first clause of the 2d Amendment means.
As to the 'if it ain't explicitly spelled out in the text, it ain't there' argument, I suggest those making it familiarize themselves with the 9th Amendment. The Bill of Rights is not an end - it is a beginning.
Lastly, the activist judges - and the data make this perfectly clear - are on the right. They're the ones who overturn one statute after another, not because of arrogance vis-a-vis the legislature, but because they have an agenda, for which the law is just a convenient tool. They treat the law in a way that a Vegas hooker would fully understand, and not just because of her clientele; the right considers the law and the constitution a convenient means to an end. Problem is, us citizens don't get paid when we get screwed.
:-), StS
jj,
You are right that the Constitution was meant to be a living document but the problem is it was not meant to be "changed" by the judicial branch, just the legislative branch.
Also the left says the conservative judges are the activist judges and the right says the liberal judges are, so we are back to square one when we point fingers because the truth is as usual obscure to the general population and only someone in tune with the intent of the founders can really tell what they meant.
Usually we defer to the Federalist Papers, the letters from the founders and other such documents to try to tell what their intent really was and sometimes even that truth gets obscured by our "political bias filter" that we look through.
:)
FAR.
FAR -
All judges are activisits. It is their very nature. Answer the questions I posed to Bill and, regardless of what your answer is, you have been an activist. The concept of "activist judges" is a rhetorical, semantic tactic that is used by both sides to smear those who issues decisions with which they disagree.
By interpreting the meaning of the phrase "due process of law", the Supreme Court has "created" law. It has interpreted the due process clause to require notice and a hearing. It would be impossible to do otherwise.
"Also the left says the conservative judges are the activist judges and the right says the liberal judges are, so we are back to square one when we point fingers because the truth is as usual obscure to the general population and only someone in tune with the intent of the founders can really tell what they meant."
No, because we on the left can point to someone like Alito and say things such as 'he wants to overturn established law' and 'he has sought to pick and choose from SCOTUS precedent' or 'he tried to gut the 4th amendment' or 'he adheres to the bizarre unitary-executive theory, which has no tradition and little legal basis'.
We're also not the ones who demand constituional amendments to outlaw flag burning, outlaw gay marriage, or whatever else. When we say that the right favors activist judges, in short, we have evidence. And that is not the same thing as making an assertion without backup.
:-), StS
ii,
Very good comnment as usual. You have made me think more deeply as usual and I thank you for that.
Clarity is what I seek as it usually leads to truth.
Perhaps we are working with semantics?
When I say Activist I am saying that the Court "changed the origional meaning" based upon what appears to be the clear intent of the founders.
For example the changing of the meaning of "public use" to mean "public interest" so the government can get more tax revenue, (the eminent domain case in New England.)
I think we can all agree that this was changing the origional intent.
If a case has presidence overturned, it will be a matter of opinion as to whether the new ruling "changes" the founders intent, or "restors" the founders intent.
I love your logical mind as I think logically as well and try to clarify what the true issue really is and I think you have hit the nail on the head with the concept of whether changing presidence is being Activist.... It all depends upon what a persons definition of Activist is.
Also if the SCOUTS would just issue a "yea or nea" instead of trying to "read the minds of the legislature", then the legislature would have to be more clear in their intent. For example the case involving "partial birth abortion."
The legislature needed to clarify that the health of the mother had plenty of fact-finding and the legislature had taken that into account.
:)
FAR.
sts,
So when judge Ginsburg says she wants to legalize prostitution and wants to use legal opinions from Europe, she is not being activist in her views?
:)
FAR.
sts,
Also you don't really believe that "all" of the lawyers out there who are republican and believe that their are Activists judges on the left are all full of bull, do you?
Surely you have a more open mind and are not that blinded by ideology?
:)
FAR.
Let me futher clairify.
I believe that both sides of the political isle have truth and lies in their beliefs. Do you think that the left has all truth and it is impossible for the left to have "any" misconceptions about what is true?
I believe the right has some misconceptions. For example, I believe that it is a true freedom principal that the government should have no say about someone using herion in their house as long as it is not hurting someone else, and that the SCOUTS should not be able to use the "commerce clause" to stop medical marijuana by the several states.
Now, can you name me some things where the left has missed the boat?
If not, then you are trapped by your ideology and have lost the ability to have an open mind.
IMHO.
:)
FAR.
FAR, the Ginsburg statement you're referencing is not a legal opinion, it's in a report that was issued by a working group she happened to be a member of. That said, show me where in the constitution it says anything about whether prostitution should be illegal.
And no, I'm not claiming that Democrats are perfect; the Democrats are pretty bad from where I stand. But we are so much better than the dark side that it defies description.
However, that's not the issue here. You make a claim that 'activist judges' are a phenomenon of the left. The evidence does not support that conclusion. That is my point.
:-), StS
FAR -
Here is the conundrum of stare decisis. The Supreme Court cannot simply say yea or neh because it is the reasoning of its opinions that matters.
If a plaintiff comes before the court complaining that he did not receive due process before his house was taken, in order to have as much consistency as possible in justice, the reviewing Court must determine how other courts have answered the question of due process.
This is how it plays out. The plaintiff complains that he only got one day of notice and that one day is not due process. In order to maintain consistency, the reviewing court will review decisions by other courts that say one month's notice is necessary for due process because it takes a month for someone to find a new place, determine market value of the house, etc. Can you imagine if there was not precedent? One guy would get one month's notice before he gets thrown out of his house, but another would get one day's notice. And that would be okay. How is that fair?
All that said, precedent is not holy and should be overturned if it was clearly erroneous. But that determination is always going to be up for disagreement and elicit howls of judicial activism. Brown v. Board of Education overruled Plessy v. Ferguson. I don't think either decision had a basis in the Constitution, but if the goal is to keep with the framers' intent, then you tell me if the framers intended to have a segregated society. And, even if they did, is that right? The framers were smart guys, but that can't be the end of the analysis.
One more point. The concept of precedent and stare decisis is a legacy of our Anglo-Saxon legal origins. Since England has no Constitution, the judges necessarily rely on precedent and the founding fathers intended to keep that system in place here. In contrast, France has civil codes with no precedent, so one guy may end up with one day notice and another with one month notice and, under that system, that is considered acceptable.
ii,
You have again changed my thinking. :)
I think instead of a "yea or nea" what would be better is to send it back to the legislature with neither, and instead issue a finding that the law needs to be changed. For example, the court could say that the law is to vauge on how long due process shuold be and the legislature needs to do fact finding and amend the law to include more difinitive language as to what that period is...for example include 30 days as the length. That way it is the legislature making the law and not the courts.
Make sense?
:)
FAR.
sts,
" show me where in the constitution it says anything about whether prostitution should be illegal."
That is my point. Both marriage and prostitution are not mentioned in the Constitution and therefore should be up to the several states as long as the laws that they come up with are applied equally.
Ginsberg has said things...Alito has said things, such as " 'he wants to overturn established law' and 'he has sought to pick and choose from SCOTUS precedent' or 'he tried to gut the 4th amendment' or 'he adheres to the bizarre unitary-executive theory, which has no tradition and little legal basis'."
Both could be said to have agendas and it is just a matter of opinion as to whether their wishes are trying to "change" the intent of the founders or trying to "restore" then intent.
There are many Republican lawyers who have firm opinions that Ginsburg wants to change the intent of the framers. Surely their opinion has some weight or are only the liberal lawyers correct?
:)
FAR.
Amend what law? It's the Fifth Amendment that says you cannot be deprived of life, liberty or property without due process. The question for the court is what does due process mean?
It is not the province of the legislature (or the executive) to interpret the Constitution.
Legislatures have adopted the Supreme Court's interpretation of due process as requiring notice and a hearing and have enacted statutes that specify what notice must be given for particular claims. But the final arbiter of whether the statute's notice requirement comports with the 5thA due process clause is the Supreme Court. If the legislature passes a law that says the government can take your house on 24 hours' notice, the homeowner has recourse to argue the 5thA was violated because 24 hours isn't due process.
The Supreme Court cannot issue orders to the legislature. That's the separation of powers. The Supreme Court cannot issue advisory opinions. It can only decide cases and controversies before it.
It's a balancing act between the legislature and judiciary and that's why it has worked so well over the years. Why the "right" is attacking this balance is beyond me. Forget the hot button issues. Defining due process affects us all.
ii,
"Amend what law?"
The Constitution. The court can send it back to the lower courts with stated reasons, yes?
That would then have the effect that I am suggesting.
It is the legislatures job to define law, and the Judicial's job to determine if it meets Constitutionality. Correct?
If the SCOTUS finds the law to vauge, then in my opinion it needs to be ammended by the legislature not the courts.
Try to see my point as I think it is logical and would maintain the seperation of powers.
:)
FAR.
The Constitution rarely, if ever, needs to be amended. To amend the Constitution to define due process would be an ill-advised folly. Due process needs are different depending on the right that will be affected. That's why reasoning matters. In California, some hearings require 75-days notice while others can be done one 1-day notice. How on earth can the legislature amend the Constitution to reflect that range? It would be impossible without making the Constitution 1,000 pages long.
What about my question to Bill about the First Amendment? The Supreme Court has held that commercial speech gets less protection than non-commercial speech. Is there a basis for that distinction in the Constitution? No. But based upon that distinction, the legislature has passed laws to penalize false advertising. Are we supposed to amend the First Amendment to read freedom of speech, unless it's commercial, unless it's false. Because then the question becomes what constitutes commercial speech and how false is false.
I think we are having a bit of a misunderstanding with respect to the relationship of the branches. The judiciary interprets the law and the legislature makes the law.
If the legislature passes a law that says the government in an eminent domain case need only give 24 hours' notice to someone before taking their house, that's not vague. The Supreme Court is going to issue a ruling saying that the plaintiff's due process rights were violated because 24 hours was not enough. That's the end of the analysis. Anything further is beyond the scope of the Court's power. The legislature then gets the message that future homeowners are going to challenge the notice requirement on the basis of the 5thA and probably win, so it amends the law to something more reasonable. That is how it has been done in this country for 100's of years and it has worked just fine. What's wrong with that?
I think a bit of a clarification of the appeals process is in order. After a trial court issues an appealable order, a party can appeal. When an appeal is filed, a party does not say, "the judgment is wrong help me". The appeal must present issues. For example, a plaintiff will petition the court to answer the question "does the 5th amendment due process clause require written notice instead of oral notice?
The court's task solely is to answer that question. Once the question is answered, the job is done. It cannot say yes it requires written notice, but we think the statute is vague. That would be an advisory opinion. The Court can only answer the question presented by the appealing party.
How the issue is framed distinguishes a good lawyer from a bad lawyer. If you don't ask a good question, you won't get a good answer.
ii,
"Due process needs are different depending on the right that will be affected."
Hmmm, I see your point.
Why not let the state legislatures define what due process is for each right that is affected instead of letting the courts decide what applies in each circumstance?
"The Supreme Court is going to issue a ruling saying that the plaintiff's due process rights were violated because 24 hours was not enough. That's the end of the analysis. Anything further is beyond the scope of the Court's power. The legislature then gets the message that future homeowners are going to challenge the notice requirement on the basis of the 5thA and probably win, so it amends the law to something more reasonable. That is how it has been done in this country for 100's of years and it has worked just fine. What's wrong with that?"
Nothing, but does that example given illustrate the "Activist" principle of changing the intent of the framers like the New England case? (Serious question, not meant to be challenging.)
:)
FAR.
The legislature does decide what notice and type of hearing is called for in specific types of cases. That already happens. But what happens when the legislature passes a new law that sets a notice requirement and a person feels their DP rights were violated? They sue. And the courts decide whether the statute met the requirements of due process and explain why or why not. The legislature can act if it was an adverse decision or parties can exeercise caution in the future if they know the courts will uphold the notice period the legislature established. That is called checks and balances.
I assume that the New England case to which you are referring is the Kelo case. Activism isn't the word I would use. Poorly reasoned and without a basis in the Constitution would be more like it. However, much of the reasoning sounds very Republican-esque:
"For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power."
http://www.ij.org/pdf_folder/private_property/kelo/kelo-USSC-opinion-6-05.pdf (It's on pp. 12-13)
Isn't that the argument you have been making throughout this thread? Deference to the legislature. Isn't that the argument the Republicans make about "activist judges" - that they second guess the legislature too much? That they second guess the president too much. Here's a court saying we're going to trust the local legislature to know what is best for its community. Isn't that a quintissential Republican argument?
It cuts both ways.
Also, read the opinion and note the precedent upon which the court relied. Then tell me if the judges were activists or were, unfortunately, constrained by prior decisions. Although judges can overrule precedent, even the most ideological will be cautious in doing so.
Who wrote that opinion?
I think property rights are at the very core of our freedom and I think most Republicans agree with that.
Now if that conflits with state legislature law, then that is why we need Constitutional law to spell out our individual freedoms that trump all branches of governement.
P.S. I am learning a lot from your analysis, and I truley appreciate it.
:)
FAR.
Justice Stevens was the author.
Are you saying that Republicans believe there should be no deference to the legislature when it comes to private property rights, but deference when it comes to liberty? Republicans are the ones screaming when the courts strike down portions of the PATRIOT Act and demand that the courts defer to the legislature. They got what they wished for in Kelo. Deference to the legilature.
Property rights are no more or less important than personal liberties. Indeed, the 5thA mentions life, liberty and property together. Let's take them as co-equals and tell the Republicans that if the court should not defer to the legislature with respect to private property, it should not do so when it comes to personal liberty. You can't have it both ways.
I am glad you are enjoying the analysis. My only hope is that it makes you reconsider the use of the cliche "activist judges". It's a hollow cliche that offers nothing to intelligent discourse.
Yes, when I said that property rights are at the very core, I was including the other two components, life and liberty as co-equals.
There are other republicans like me, Judge Napalitano for instance, who are very fearful of some parts of the Patriot Act. I do not wish to give up liberty for security.
I will reconsider the use of the words "Activist Judges" but would like some term(s) to describe the acts that usurp the powers of the legislature.
My moniker is all about liberty and I totally believe in the separtation of powers in order to secure that liberty.
:)
FAR.
"Extra-judicial" is the technical term. I'll concede that there are decisions that step into the realm of the legislature, although none come to mind at the moment (can you tell me which ones you think are extra-judicial), but where and how do you draw the line between making law and interpreting it?
If someone says I didn't get due process, the Court has to say something about what due process is in order to say whether the guy got it or not. To say due process requires notice and a hearing is both interpreting law and making it. Then the legislatures get to define the type of notice, the type of hearing, etc. It's a great balance.
If someone says I was duped by a false ad and the defendant uses the 1st Amendment as a defense, the court has to decide whether the framers intended that the 1stA protect fraudulent commercial speech. If the answer is no, that can be called "activist", but that is the "social engineering" Bill is whining about but I don't hear anyone complaining about that protection.
Although there is not an explicit right to privacy in the Constitution, I think it can be easily inferred that the framers intended it with the 4thA. I do not believe that abortion is protected by the right to privacy and, indeed, it should be a question left to states, but reasonable minds can differ on the scope of the realm of protectible privacy.
Some Republicans argue that the 4thA is essentially irrelevant in the time of war, although the Constitution provides no such exception. Indeed, the founding fathers drafted the Constitution during times of great tumult and, nonetheless built-in strong checks on the fed. So when the court says the 4thA requires a warrant and tells a cop to take a hike for not getting a proper warrant, that's the law. Yet Alito's dissent over that principle is hailed by so-called small government conservatives.
Very interesting discussion.
Picking up the earlier ball, no, I don't believe that liberals are always right; in fact, II is using some quotes of mine to prepare a posting on that very subject.
However, if you're going to posit a 1:1 equivalency between Ginsburg and Alito, you'll find that she does not overturn the legislature nearly as often as he does, nor did she come up with the novel idea, prior to being on the court, that he could pick and choose which SCOTUS precedent to apply, as he did in Casey.
It's a question of degree more than of kind. Some laws need to be overturned, such as that so-called 'partial-birth abortion' act. That's not judicial activism, that's simply protecting established law. You may disagree with that outcome - such disagreement being at the heart of every claim of judicial activism - but it's difficult to argue that this is improper on legal or separation-of-powers grounds.
:-), StS
02 02 06
FAR: I think McConell is a good choice too:)
02 02 06
JJ: Where did it ban interracial marriage in the original Constitution? I understand that some old statutes that predated the Constitution specifically enforced antimiscegination laws, but I did not know that the original Constitution prohibited it.
MSR -
JJ is not saying the ban on miscegination was in the Constitution. He's saying that it was once considered legal under the Constitution and it no longer is because the document is not frozen in time.
I was just reading about all of this somewhere and they were saying it was very likely that Stevens would step down soon. And you are right that the hysterics will be unbelievable.
But it was so nice to be able to laugh at Kennedy and Kerry's feeble attempts at sabotaging Alito.
Hopefully Lindsey Graham is right and they will institute the constitutional option if the dems try to filibuster the next nominee. Another concern is on the off chance that the dems take control of the senate this fall, we may be in trouble. Although we got Scalia and Thomas through a democrat controlled congress. We shall see.
Echoing silence in the halls of blogdom....
Everything all right?
:-), StS
sts,
Yep. Thanks for asking thou. I am working too many hours lately. My business has greater need of my time for a while.
Hope to have some free time shortly.
Thanks,
FAR.
http://www.ctemploymentlawblog.com/tags/ricci-v-destefano/
Does anybody have any idea of a ruling of this case on April 22, 2009? New Haven firefighters going to the Supreme court. With the make up of the court will their be any dececision?
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