Convictions: Slate's blog on legal issues

The Election and the Supreme Court—Possible Vacancies Ahead?

One reason the court is not an issue right now is that the chief justice has done a superb job of lowering the court's profile. It's hard to get the nation worked up over disputed interpretations of the Employment Retirement Income Security Act, for example. The intensity of the gun battle should not obscure the winning Roberts combination of taking fewer cases overall, taking fewer controversial cases in particular, and encouraging the issue of narrowly drawn opinions. That is all to the good, even if it makes it more difficult for Sen. McCain to stoke up an intellectually tired conservative base by raising the hoary specter of judicial activism. He hasn't been successful thus far, in part because activism is not nearly the problem that he describes it to be. 

Sen. Obama is both more perplexing and intriguing on the judicial nomination front. Perplexing, because he voted against (mistakenly, in my judgment) two of the most talented jurists on the bench, John Roberts and Sam Alito, even as he conceded they had the intelligence, capability, and proper judicial temperament. Intriguing, because Obama's stated basis of opposition was a suspicion that these nominees were not sufficiently empathetic with the needs of the average person. Sen. Obama himself, of course, has great empathy for those who are often overlooked by the political process, and it will be fascinating to see how that attractive quality can be translated into identifiable and appropriate selection criteria for the men and women he would want serving on the bench.

It is widely speculated that the next nominee of either party will be a female, and that is likely, given the persistent reminders of Justice O'Connor (not to mention speculations about Sen. Clinton). But the inescapable consequences of the actuarial tables—as well as the personal desires of some of the senior members of the court—will probably result in a two or more vacancies in the next presidential term.

So if gender were not a consideration, is there a standout judicial candidate who could reorient the confirmation process away from real or imagined concerns with "activism"—and be acknowledged as superior in quality, temperament, and personal ethic of concern?

Yes: Carter G. Phillips, the managing partner of the Sidley Austin law firm in Washington, D.C., who argued a remarkable five cases this term, bringing his total before the court to 50 in private practice with an additional nine during his service in the SG's office. There is not another advocate in the country who is as respected for his impartial legal judgment, personal integrity, and genuine friendship and assistance to his fellow members of the bar and to his community. There is also not an advocate before the court who wouldn't desire to have work product be so well thought as to merit colloquial reference by the Justices from the bench, as occurred during the Grutter oral argument with their frequent reference to the "Carter Phillips brief." Phillips is also the right age, 56, and with the circumspect demeanor of his mentor, the late Rex Lee, Phillips is one of those rare individuals of stature who could rather remarkably be seen as a nominee of either party.

There are other men and women who could (and should) be thought of: for McCain, Judge Diane Sykes of the 7th Circuit and former SG Paul Clement come readily to mind; for Obama, Kathleen Sullivan or Judge Merrick Garland of the D.C. Circuit would surely be contenders; and I suppose there are even people with gun racks who would appeal to Bob Barr. But if the objective is to transcend political division, there is no one better than Carter Phillips. 

Hills of Beans

Boumediene and Extraterritoriality

Six Years in the Desert

David, you're right: Kennedy's opinion in Boumediene calls Congress out. Hey, you want to suspend habeas, go ahead, but we're not going to let you back into it by mumbling about jurisdiction-stripping. Which makes it striking that in the opening of his dissent, Chief Justice Roberts attacks by asserting that "this decision is not really about the detainees at all, but about control of fedreal policy regarding enemy combatants." This is the classic accusation that the court is overstepping itself in a spat among the branches. And yet in his opinion, Kennedy keeps the court on a pretty narrow path, defining the right of habeas corpus (much weighty historical analysis on this front) and explaining why, because of its constitutional significance, Congress can't wish away habeas with a lot of indirection.

Roberts is right that the big question is what happens next. But what he calls "a set of shapeless procedures to be defined by federal courts at some future date" is the Supreme Court sending this case back to the lower courts to fill in the contours of exactly the sort of due process to which the detainees are entitled. That's standard operating procedure—if the majority had filled in all the blanks itself, wouldn't the dissenters have accused them of overreaching? And Kennedy offers pretty specific guidance. He wants a habeas or habeaslike process that has "the means to correct errors" in the initial procedure, in this case, the Combatant Status Review Tribunal. And he wants the detainees to be able to offer their own "relevant exculpatory evidence." The shortcoming of the CSRT is the "considerable risk of error in the tribunal's finding of fact," that's what habeas is designed to protect against, and since we're holding these detainees over the long haul (yes, six years already, as Deborah points out), they're entitled to that protection, too.

 What about Marty's key question: Should Congress respond now to the court? I'm curious about others' reactions, especially Ben's, since this cuts close to his book. My own initial reaction is that the decision today is evidence that the courts are doing their best to sort through the incredibly difficult dilemma that the Guantanamo detentions pose. I know we've waited six years already, but I'm willing to wait more to see what they come up with. On the other hand, we're nowhere near the cliff's edge of deciding whether any of these guys should or could be released. And given how dicey that question is, legislative involvement would help the court a lot, politically speaking. That is, if we could ever trust Congress to get it right.

One more question: How does this decision play out in the presidential campaign? Does it give McCain fodder and make Obama defensive? Or can the Democrats figure out a way to harness it ito the deep misgivings about Guantanamo that by now are widely shared?

Another Supreme Court Smackdown

This just in via SCOTUSblog—the Supreme Court decided today in a 5-4 opinion that detainees at Guantanamo Bay could bring petitions for habeas corpus in federal district court. As Jeff Toobin just said on CNN, this marks the third time (more if you count each individual opinion) that the Supreme Court has taken the Bush administration to the woodshed over its detention and interrogation regime. More analysis to follow ...

Standard of Proof

Like many corporate law and business law decisions, yesterday's Supreme Court decision in Allison Engine Co. v. United States ex rel. Sanders was virtually ignored by the media and blogosphere. Neither the New York Times, Washington Post, nor even the Wall Street Journal even mentioned it in their daily dispatches, choosing to focus instead on other opinions handed down yesterday. But for my government contracts practice, and my clients, this decision was of monumental importance.

The case arose out of the False Claims Act, a Civil War-era statute that provides civil liability and penalties for anyone who, among other things, "knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government." Notably, the statute contains a qui tam provision that allows individuals (called "relators") to sue on behalf of the U.S. government if they learn of such fraud and entitles these whistleblowers to a percentage of the recovery if the suit is successful. This provision was originally inserted to counterbalance a recalcitrant Justice Department that was unwilling to go after fraud. It has since launched a large and active plaintiff's bar in this area, and a great deal of litigation, too.

Yesterday, the Supreme Court narrowed two important parts of this statute considerably, by raising the bar for what a plaintiff must prove in court about a contractor's (or subcontractor's) intent, and the materiality of their statements. This is so significant because most False Claims Act cases don't involve clear-cut cases of fraud or deception. Rather, they typically turn on very granular facts.  Many cases involve compliance certifications on one form or document, and requests for payments on another document, or sometimes only an "implied certification" of compliance. It would be a massive understatement to say there are thorny issues of proof in these cases.

With its decision in Sanders, the Supreme Court is making it much tougher for qui tam plaintiffs to prove contractor violations of the False Claims Act. Given the size and scope of the government contracts industry, and the amount of litigation involving these questions, yesterday's decision will likely have an effect far beyond its publicity.

"Tremé" & Plessy

Late but Welcome, a Recusal Quiz Entry

Thanks to D.C.-based "Convictions" reader Mark I. Levy for sending this late entry to last month's Recusal Quiz:

In answer to our question on seminal cases in which one more recusal would have compelled the Supreme Court to affirm without opinion—as it did last month in an Alien Tort Statute case—Mark points us to Chevron v. National Resources Defense Council (1984). Establishing a principle of deferring to administrative agencies known to this day as "Chevron deference," a unanimous court reversed the opinion below. That unanimity came in the form of a 6-0 vote; Justices Thurgood Marshall, Sandra Day O'Connor, and William H. Rehnquist did not take part. Thus, in Chevron as in the Shelley case cited a few days ago, one more recusal would have led to a far different result.

A Summer of Security Detention?

I had the pleasure of spending a few hours late last week at the tail end of what looked to have been a terrific seminar series on current challenges in the law of war. The lectures were aimed at an audience of mostly Capitol Hill staffers and delivered by experts brought in by the seminar hosts at the U.S. military's JAG school, UVA Law School, and the International Committee of the Red Cross. You can find the agenda here. 

Among other rumors buzzing about was discussion about the odds Congress would come back and legislate in a hurry after the Supreme Court hands the administration an expected loss on the question of habeas corpus for Guantanamo Bay detainees some time before the current term ends in the next month or so. (Dahlia wrote last December about oral arguments in the relevant cases, Boumediene v. Bush and Al Odah v. United States here. I'm with most Supreme Court-watching pundits, including Dahlia, in suspecting the government is not going to win entirely in its argument that the detainees there are only entitled to what they get under the current review scheme.) The speculated administration thought: Force the Democrats into a politically disadvantageous vote right before the election and kick the Gitmo can into the next administration with a vengeance.

Among other legislative peanuts already rumored to be "in the hopper"—a new national security court scheme favored (although hardly agreed on in detail) by my friends Neal Katyal and Jack Goldsmith. Coming off the delightful past seven years of experimentation in our last "new court" enterprise down at Gitmo, Neal and Jack, I know, can appreciate my deep skepticism of the likely success of another such venture (even one more thoughtfully conceived).

So, before I go on at length about why I think a new court is the wrong way to go (and any proponents must read the new Human Rights First report about how terrorism cases have worked reasonably well in the good old-fashioned criminal courts), any of my fellow bloggers care to weigh in on the odds we'll see Congress back in the detention business before the summer is out?

Recusal Quiz Answered

Can't let the month of May end without answering the Recusal Quiz question. As readers will recall, the quiz was occasioned by Linda Greenhouse's report that the Supreme Court had affirmed a lower court decision. The reason? Four justices recused themselves on account of "[f]inancial and personal conflicts of interest" in the case, in which victims of the apartheid era seek damages from myriad corporations that did business in South Africa during that time. Over at Opinio Juris, Roger Alford wondered whether "anything like this" had occurred "in such an important case." Convictions' Recusal Quiz posed that question more pointedly:

In what case decided 60 years ago this month did three justices recuse themselves because they had a financial stake in the outcome of the issue at bar?

The answer:

Shelley v. Kraemer, decided May 3, 1948, in which the court held that a state judge violated the Equal Protection Clause of the 14^th Amendment by enforcing a deed covenant that forbade the transfer of property to African-American buyers.

The vote in Shelley was 6-0. The reason? Justices Robert H. Jackson, Stanley Reed, and Wiley B. Rutledge recused themselves; each owned property subject to racially restrictive covenants. Had one more justice been in the same situation, the court would have lacked a quorum in Shelley. Instead of a unanimous vote against, the result would have been a vote in favor of racially restrictive covenants—and that result would have obtained until either the composition of the court or the property holdings of its members changed. 

Upholding the Freedmen's Remedy

The Supreme Court today held 7-2 that a black former employee of Cracker Barrel can go ahead and sue the company for retaliation, based on his allegations that it fired him for complaining about racial discrimination. A few months ago, I thought that the case might come out the other way and serve as a vehicle for the court's conservatives to rein in employment-discrimination law. Instead, Justice Stephen Breyer's opinion—joined by all the justices but Antonin Scalia and Clarence Thomas—relies on the principle of stare decisis, or respect for past precedent, to allow employees to sue for retaliation based on an 1861 law that doesn't mention retaliation explicitly. The key precedents are a 1969 holding from the Warren Court striking down a restrictive housing covenant and a 5-4 ruling about retaliation claims brought via Title IX (the law that prohibits gender discrimination in school sports) written by Sandra Day O'Connor in 2005. Breyer carefully lays them out and then writes that considerations of stare decisis "impose a considerable burden upon those who would seek a different interpretation that would necessarily unsettle many court precedents." A page later, he acknowledges that the statute nowhere mentions retaliation (nor did Congress add it in amending the law in 1991). But, Breyer writes, "that fact alone is not sufficent to carry the day."

Thomas and Scalia disagree. Kennedy, Alito, and Roberts, however, stand with Breyer in upholding the Warren Court decision and the O'Connor majority opinon instead of going with the plain text reading. There are good reasons for the majority's position aside from stare decisis: As Breyer points out, when Congress re-enacted the law in 1991, lawmakers thought they were expanding the statute's original scope. But the main point is that it will be worth watching if and how today's division over how to read a statute plays out among the conservatives. Also, today's opinion is more fodder for Linda Greenhouse's observation about the decline of the 5-4 split, at least so far this year.

The Facial/As-Applied Distinction—Partially Aborted

We have previously noted how the Supreme Court might be deploying the facial/as-applied distinction to reach minimal levels of consensus that would otherwise not be possible because of the ideological differences on the court. One prominent example was the Supreme Court's upholding of the federal partial-birth abortion ban on facial grounds in Gonzales v. Carhart. Consensus on the Supreme Court does not mean the division in the universe disappears, however. It is simply shifted back down the judicial hierarchy to the appellate bench. Thus, in Richmond Medical Center v. Herring, on remand to the 4th Circuit in light of Carhart, a 2-1 panel led by Judge Michael invalidated the Virginia partial-birth infanticide act on its face.

Pursuing a facial challenge in the lower court may seem contrary to the Supreme Court's preference for as-applied challenges, but the two-judge majority reasoned that the high court's preference for as-applied adjudication exists only in the partial-birth abortion context with respect to the need for a health exception and not for any consideration of the definitional scope of a statute. That is debatable, but dicing the jurisprudence in this way, the majority believed the Virginia act overbroad because they asserted it would impose criminal liability on a doctor for accidentally performing a partial-birth procedure when a more typical dissection procedure had been intended. Judge Niemeyer vigorously dissented on this point of statutory construction pointing to a mens rea requirement that was identical to the federal statute and most assuredly preclusive of accidental criminal liability.

Putting aside the statutory interpretation question, it will be interesting to see if and when the litigants pursue a petition for certiorari, assuming an en banc denial, whether the high court will view this as defiance of its judgment in Carhart and wade back into this contentious subject. If the justices pass, the case illustrates how thin the consensus achieved by the facial/as applied distinction. Indeed, some would contend that if the lower courts are permitted to disregard Supreme Court rulings in this fashion, the general public has been misled into thinking that abortion is subject to limitation, when it is not. All the more reason to believe that abortion is none of the government's business, and the sooner the people revoke its delegated authority under the 10th Amendment to say that neither federal nor state governments should address this topic, the better.

In the meantime, even assuming a facial challenge was appropriately considered by the 4th Circuit, it should be noted that the panel was doubly defiant in rejecting the traditional Salerno standard of facial challenge. That standard is a rigorous one, requiring a showing by the challenger of no conceivable constitutional application of the statute. By contrast, the specially crafted abortion facial challenge standard fashioned in Casey, but seemingly frowned upon in Carhart, of requiring a challenger to an abortion statute merely to show that a significant fraction of women would be unduly burdened is a standard so easily met that virtually no abortion restriction is capable of meeting it.

Reply to Diane, Kenji, and Dahlia

I'm not sure why the inconsistency noted by Diane between the Findlaw and Rasmussen poll favors the Findlaw results. It could be that Rasmussen is right and Findlaw is wrong. A possible (partial) explanation for the inconsistency: Findlaw polls "American adults," while Rasmussen polls "likely voters."  Typically, 40 percent to 50 percent of eligible voters vote in presidential elections; if "likely voters" is a subset of eligible voters, and both are more informed than "American adults" in general, then we might conclude that Rasmussen surveyed people who are more likely to be knowledgeable about public affairs, including the identities of Supreme Court justices. The puzzle, then, is why, within this subset of Americans with more information, people have favorable attitudes about the court and unfavorable attitudes about the individual justices.  (The Rasmussen results also suggest, consistent with Findlaw, that substantial numbers of likely voters don't know or have no opinion, of course; but that doesn't address the puzzle, either.) I do not understand how the relative invisibility of the justices on the court explains the attitudes of those who do in fact see them.

However, I like Dahlia's hypothesis: Americans believe that the court has a valuable institutional role, but they resent the fact that these nine people exercise so much power over them. The more that these individuals have distinct personalities, flaws, quirks, recognizable ambitions, and so forth—the more they seem like ordinary human beings rather than disembodied spirits—the more difficult it is to acknowledge their exalted status in a democracy where authority is supposed to flow from the people. Perhaps judges, like priests, receive power on the condition that they withdraw from the world and submerge their identities in a public institution, and people sense and resent that some of the justices are violating their side of the bargain. Why didn't the oracle at Delphi write her memoirs or a how-to-be-a-supplicant book? Perhaps she better understood the political psychology of her position? An ironic twist: Are the justices who have made themselves more publicly accessible driven by democratic instincts that are inconsistent with the premises of their office?

Familiarity Breeds and Breeds ...

I have a slightly different hypothesis for Eric and the new Rasmussen poll. Eric is right to point to the odd disjunction between favorable institutional ratings and the lame reviews for individual justices. But the poll also suggests something fairly radical for those of us—um, let’s call them “me”—who’ve been urging the justices toward greater openness and transparency. Because a look at the individual rankings by justice suggests that the justices who have attempted to use the media to humanize and personalize the court have somehow achieved precisely the opposite effect. The justices with the highest unfavorable ratings here are the ones who have most avidly courted the public. Whereas the justices who have kept on keeping on under the radar remain unknown, but un-hated.

So, for instance, whose individual ratings are most unfavorable? The best known justice, Clarence Thomas, was the least-liked. Some 38 percent of respondents viewed him favorably, and 50 percent rated him unfavorably. Maybe it’s a coincidence that he was also the recipient of the most personal publicity this year, following a searing autobiography and a round of television appearances. Who has the next highest unfavorables? Antonin Scalia at 40 percent. Who’s been all over the media like Cheez Whiz on toast? Antonin Scalia. I don’t think this means Americans dislike originalists, by the way. I think it may mean, as Eric suggests, that we may prefer our jurists to be oracular, silent, and holed up in New Hampshire.

Supreme Sleight of Hand

The Rasmussen poll's (un)favorability ratings for individual Supreme Court justices surely intrigue. But how can they be squared with repeated polls indicating Americans don't even know the names of the nine folks on the court?

Consider FindLaw's December 2005 "Supreme Court Awareness Survey," which found that "only 43 percent of American adults can name at least one justice who is currently serving on the nation's highest court," and that fully 57 percent of Americans "can't name any current U.S. Supreme Court justices."

Most-named in that polling of 1,000 Americans was the now-retired Sandra Day O'Connor; at 27 percent, she placed six points ahead of the second-place justice, Clarence Thomas. Notwithstanding that the confirmation hearings of Chief Justice John G. Roberts Jr. had taken place just a couple of months earlier, he placed a distant third, at 16 percent. The rest were named as follows: Antonin Scalia, 13 percent; Ruth Bader Ginsburg, 12 percent; Anthony M. Kennedy, 7 percent; David H. Souter, 5 percent; and Stephen G. Breyer and John Paul Stevens, tied at 3 percent.

These latter numbers seem entirely plausible. And that calls into question the Rasmussen poll. Let's take Breyer as an example. If only a very small handful of Americans is even aware that someone bearing his name sits on the Supreme Court, what can it possibly mean that, as Rasmussen reports, Breyer has a favorability rating of 18 percent, 10 points below his unfavorability rating of 28 percent?

The most significant numbers in Rasmussen's poll? Twenty-nine to 54. That's the percentage range of persons surveyed who are willing to admit that, even when supplied the name of an individual justice, that they simply haven't a clue what to think about her or him.

The Supreme Court: Collectively Good, Individually Bad

Here are some odd poll results from Rasmussen Reports. Americans think that the Supreme Court does a good job but that the Supreme Court justices do a bad job.

For the court as a whole, 41 percent of voters rated the Court good or excellent; 19 percent rated it poor.

For the individual justices:

Thomas: 38 percent favorable, 50 percent unfavorable

Ginsburg: 36 percent favorable, 35 percent unfavorable

Alito: 26 percent favorable, 38 percent unfavorable

Roberts: 26 percent favorable, 30 percent unfavorable

Scalia: 27 percent favorable, 40 percent unfavorable

Stevens: 17 percent favorable, 30 percent unfavorable

Kennedy: 25 percent favorable, 33 percent unfavorable

Breyer: 18 percent favorable, 28 percent unfavorable

Souter: 16 percent favorable, 31 percent unfavorable

So, except for Ginsburg, all the ratings are negative; and Ginsburg herself hardly receives much of an endorsement. Meanwhile, Congress receives 13 percent good or excellent ratings, yet I believe that voters typically give high approval ratings to their own representatives. Do voters realize that these institutions are composed of people? Maybe when voters rate the court, they unconsciously compare it to Congress and the presidency, but when they rate individual justices, they compare them to some imagined ideal of what a Supreme Court justice does or they recall some unfavorable story about the justice's confirmation hearings or out-of-court activities.

Minority Leader McCain

There's no question but that a President Obama would have to find an attractive position for Mrs. Clinton other than the vice presidency. The problem with the vice presidency is, of course, Bill. Absent a Lincolnian desire for a team of rivals, the former president's presence hanging about the West Wing vice-presidential office would greatly complicate executive decision-making.

So some now suggest the Supreme Court. Bracketing the effect on the court of Mrs. Clinton's appointment, the problem with the judicial post is that it doesn't solve Sen. Obama's immediate problem—allowing Mrs. Clinton the opportunity to exit the electoral stage with a prize in hand that reaffirms the achievement of women. It is unseemly to use court appointments quite this brazenly, and the glass ceiling has already shattered upon the O'Connor and Ginsburg heads. Finally, it is not self-evident why Mrs. Clinton would trade life in the highly visible, political lane for the cloister. It would be more likely to suppose that Mrs. Clinton would desire to be Senate majority leader or the secretary of health and human services in order to single-mindedly pursue her health care reform.

That said, a Clinton on the court has been speculated about before. Back when Mrs. Clinton was the likely nominee, I wrote a column for the Wall Street Journal suggesting that were Mrs. Clinton to become president, she herself would have had to extricate her husband from the executive branch and a plausible place to put him might be on the Supreme Court bench.

William Howard Taft found the court far more attractive than the presidency itself. Taft was able to shape not just judicial doctrine, but by virtue of his network of friends as the former chief executive, he had considerable influence over the appointments to not only the Supreme Court but the lower federal courts. Mrs. Clinton would like that, too.

James Andrew Miller, who writes about the possibility of nominating Mrs. Clinton to the High Court in today's Washington Post, suggests that Mrs. Clinton's policy and political perspectives would recommend her strongly to a President Obama. Perhaps. By virtue of Sandra Day O'Connor's retirement and her outspoken advocacy for a female replacement, whether it's McCain or Obama who is the next president, a female nominee for the court is highly likely. While the apointment would not be a "first," a Justice Hillary Clinton would not be without contemporary significance and effect. Her appointment from elective office, in itself, diversifies the bench in ways that others recommend, even as Eric Posner thoughtfully questions whether it is right to see the court as a third policy apparatus, rather than as a body doing narrowly focused legal work.

Mrs. Clinton's far more legally gregarious perspective would be a counterpoint to the Chief Justice's minimalism, and she would likely galvanize the overly hypothetical Breyer/Ginsburg/Souter wing. All pretty exciting for her. All equally frightening for Justices Alito, Thomas, and Scalia. Dizzying for Justice Kennedy.

The GOP, one suspects, will discover newfound respect for the judicial filibuster, which would complicate Mrs. Clinton's confirmation, as Dahlia suggests. But then, will the GOP have 40 seats in the Senate? And who knows what Minority Leader McCain, whose term runs through 2010, might negotiate as part of a reconstituted gang of 14.

A Wee Bit Misunderstood

Adam, I meant neither to endorse "a longtime practitioner" nor to exclude law professors or sitting judges from consideration for court vacancies. Persons holding any of these positions may qualify as "lawyer's lawyers" or, indeed, "judge's judges."

Fitting those two labels is in part a matter of experience. But it is more importantly a matter of temperament—a matter both of the means a person employs to solve a question of law and the manner in which the person explains that resolution in an opinion. There are longtime practitioners who are not lawyer's lawyers. There are members of the bench who are not judge's judges. There are practitioners who display judicial temperament even though they have never donned black robes. Various law professors fit various categories.

The Stevens example is set forth simply to provide food for thought about what may happen when a president gives certain qualities priority over partisan political concerns.

With regard to your specific references, I am not persuaded that the nomination of John G. Roberts Jr., for whom I have great respect, serves as an equivalent example. His intellect, wit, and dignity indeed are welcome additions to the court. But the man who is now chief justice of the United States served in the executive branch, and that experience alone sets him apart from Stevens. Accounts like those in Jeffrey Toobin's The Nine (2007), moreover, suggest a greater ideological bent than was evident in Roberts' nomination hearings; and correct or not, a sense among some Democrats that there was such a bent no doubt underlay the "nay" votes mentioned in the Los Angeles Times article that spurred this blogthread. (This too sets Roberts apart from Stevens: 1975 predictions by U.S. Rep. Bella Abzug, D-N.Y., and the National Organization for Women that Stevens would do harm to women's rights did not convince a single senator to vote against him.) Finally, not all the chief's opinions have adhered to the "balls and strikes" metaphor he famously pitched when seeking nomination; last term's Seattle School District and this term's Medellín may be said to have set precedent as much or more than they followed it.

Though we may exercise a blogger's prerogative of contributing our two cents, we cannot be certain of what either presumptive presidential nominee will do unless and until he has the power actually to make a judicial selection.

Two Courts, One Law

I'll get to Phil's McCain-Obama-and-the-courts question in a sec. But I first have to say that while I'm generally a big fan of David Savage's at the L.A. Times, there are parts of this latest piece that sound like they could've been written by Rush Limbaugh.

The McCain-Obama comments reflect a long-standing divide between conservatives and liberals on the role of the courts. Reduced to the simplest terms, conservatives say judges should follow the law, and liberals say they should ensure that justice is done.

Ugh. I appreciate the need to get this complex, age-old debate boiled down to within a journalistic word limit, but there's gotta be a better way. Of course both conservatives and liberals say judges should follow the law. Beyond that, and within the descriptive limits of the stereotyped terms, "conservatives" say that "following the law" means using the fewest possible interpretive clues to figure out what the law means (for statutes, text only; for the Constitution, at best, a guess at what the framers meant in 1789), and as a matter of practice they fill in any remaining areas of uncertainty (of which there are inevitably some in some cases) with broad ideological preferences—about the power of the government, the role of the courts, and the kind of society in which they want to live. "Liberals" believe "following the law" means looking to as many interpretive clues as might reasonably shed light on the text (legislative or other kinds of history, text and textual context, the purpose of the document, etc.). As a matter of practice, they, too, may fill in remaining areas of uncertainty with an equal and opposite set of broad baseline principles, including the principle that judges get to say what the law means.

There's no way around the problem of laws that are sometimes unclear. I think on balance the "liberal" approach to interpretation has a better chance at preserving the idea of "law" as having some sensible and identifiable meaning. But the reality also remains that vast swaths of the law are clear for both liberals and conservatives; that's why, among other things, not every dispute in the United States ends up in court. For those that do, there's also no way around the reality that judges will have baseline structural preferences and preferences about what they think "justice" would require in any given case. But I wouldn't deny (as many conservatives and some liberals do) that such preferences can matter, at least at the margins of judicial decision-making. That's why judges are politically appointed. That's why presidential appointments matter.

So what can we glean about McCain and Obama so far? I'd say that apart from some reassurance that the one reflects most conservative baseline assumptions, and that the other reflects most liberal baseline assumptions, not much. But to my colleagues who've watched this longer than I, I'd be pleased to stand corrected here.

Recusal Quiz

In recognition of the unusual news that a lower court decision was "automatically affirmed" because too many justices had "[f]inancial and personal conflicts of interest," a quiz:

In what case decided 60 years ago this month did three justices recuse themselves because they had a financial stake in the outcome of the issue at bar?

Colleagues?