Blah = AF

Values matter in Supreme Court adjudication.

Yes, they do. The question is…

Do you value law, or do you value Magic?

Do you interpet the US laws as written on the books, or do you simply make them up as you go?

“Wednesday, October 17, 2007
Robert Bork, John Roberts, and Balkin’ Bob Davidson

Chris Eisgruber

This post is the second of three marking the 20th anniversary of the Senate vote rejecting Robert Bork. I ended the first post by referring to the myth of the neutral umpire. The New York Times editorial page supplied fresh evidence of the myth’s power on September 30, as the Supreme Court was readying to open its term. (The editorial is here ).

The Times lamented that John Roberts was not the neutral umpire he had promised to be in his confirmation hearings. His votes last term, The Times observed, were staunchly conservative. I agree. The editorial concluded with the proclamation that “if the justices act as umpires and call balls and strikes, this term could produce some real victories in voting rights, the death penalty and civil liberties.”

What could The Times have had in mind? As others have noted, the problem with Roberts’s promise to be an umpire is not that he failed to keep it, but that it made no sense. In baseball, umpires apply clear rules to contested facts. They have to answer questions such as, “Did the ball cross the plate, or was it an inch outside?”

Sometimes their calls are controversial. Indeed, some umpires are controversial. Baseball junkies argue about umpires like Balkin’ Bob Davidson, who got his nickname not because he reads Jack’s blog but because some people think he calls too many balks.

Yet, even the controversy over Balkin’ Bob focuses on the application of clear—if highly technical rules—to factual details. For umpires, disputes about the meaning of the rules are rare. They come up occasionally—does putting too much pine tar on a bat invalidate a home run hit with it?–but not often.

On the Supreme Court, matters are reversed. The Court takes only cases in which the law is unclear. Indeed, for the most part, the Court takes only cases in which capable judges not only can, but in fact have, disagreed about what the rules say.

In principle, Supreme Court justices could avoid difficult judgments by deferring to elected officials whenever the Constitution’s meaning was unclear. In my view, this broad-brush deference would be a mistake, but there is still a substantial amount to be said in favor of it. Not surprisingly, it has distinguished defenders, including Mark Tushnet and Jeremy Waldron.

In practice, though, no recent justice has consistently practiced such deference. Every justice, liberal or conservative, has thought it desirable to allow his or her controversial judgments about constitutional meaning to trump the views of elected officials with regard to some issues.

The problem with John Roberts, then, isn’t that he has allowed his values to influence his jurisprudence—that’s inevitable. The problem with Roberts—if you agree that there is a problem—is that his values are extremely, rather than moderately, conservative. And the problem with the current highly choreographed confirmation process is that it allowed Roberts to win confirmation without revealing much of anything about those values.

Values matter in Supreme Court adjudication. For that reason, they must matter, too, in the Supreme Court confirmation process. In The Next Justice, I try to describe how that can happen, and in my third and final posting in this series, I will summarize some of the book’s recommendations.

Posted 6:26 PM by Chris Eisgruber [link] “

Lori Ringhand, a professor at the University of Kentucky College of Law, examined the voting records of the Supreme Court justices from 1994 to 2005. Because judicial activism is a vague concept, she applied a reasonable, objective standard. In the study, which is forthcoming in Constitutional Commentary, justices were considered to have voted in an activist way when they voted to overturn a federal or state law, or one of the court’s own precedents.

The conservative justices were far more willing than the liberals to strike down federal laws — clearly an activist stance, since they were substituting their own judgment for that of the people’s elected representatives in Congress. Justice Thomas voted to overturn federal laws in 34 cases and Justice Scalia in 31, compared with just 15 for Justice Stephen Breyer. When state laws were at issue, the liberals were more activist. Add up the two categories, and the conservatives and liberals turned out to be roughly equal. But Justices Thomas and Scalia, who are often held out as models of nonactivism, voted to strike down laws in more of these cases than Justice Breyer and Justice Ruth Bader Ginsburg, the court’s two Clinton appointees.

By the third measure, overturning the court’s own precedents (for which data were available only up to 2000), the conservatives were far more activist. Justice Thomas voted to overturn precedent 23 times and Justice Scalia 19 times, while the court’s four liberals did so in 10 cases or fewer.

Why do we keep reading these studies? I dunno, I guess because it gets our dander up.

Justices - all of them - decide based on their biases and it’s idiotic to pretend otherwise. For that reason, I agree that studies like this are silly. Not for the reasons you cite, but for their attempt to take politically/philosophically motivated decisions and measure them according to some ‘neutral’ standard. Who cares if they’re activist or restrained? The public - conservatives and liberals alike - only cares if they’re making the ‘right’ decisions.

This post is the second of three marking the 20th anniversary of the Senate vote rejecting Robert Bork. I ended the first post by referring to the myth of the neutral umpire. The New York Times editorial page supplied fresh evidence of the myth’s power on September 30, as the Supreme Court was readying to open its term. (The editorial is here ).

The Times lamented that John Roberts was not the neutral umpire he had promised to be in his confirmation hearings. His votes last term, The Times observed, were staunchly conservative. I agree. The editorial concluded with the proclamation that “if the justices act as umpires and call balls and strikes, this term could produce some real victories in voting rights, the death penalty and civil liberties.”

What could The Times have had in mind? As others have noted, the problem with Roberts’s promise to be an umpire is not that he failed to keep it, but that it made no sense. In baseball, umpires apply clear rules to contested facts. They have to answer questions such as, “Did the ball cross the plate, or was it an inch outside?”

Sometimes their calls are controversial. Indeed, some umpires are controversial. Baseball junkies argue about umpires like Balkin’ Bob Davidson, who got his nickname not because he reads Jack’s blog but because some people think he calls too many balks.

Yet, even the controversy over Balkin’ Bob focuses on the application of clear—if highly technical rules—to factual details. For umpires, disputes about the meaning of the rules are rare. They come up occasionally—does putting too much pine tar on a bat invalidate a home run hit with it?–but not often.

On the Supreme Court, matters are reversed. The Court takes only cases in which the law is unclear. Indeed, for the most part, the Court takes only cases in which capable judges not only can, but in fact have, disagreed about what the rules say.

In principle, Supreme Court justices could avoid difficult judgments by deferring to elected officials whenever the Constitution’s meaning was unclear. In my view, this broad-brush deference would be a mistake, but there is still a substantial amount to be said in favor of it. Not surprisingly, it has distinguished defenders, including Mark Tushnet and Jeremy Waldron.

In practice, though, no recent justice has consistently practiced such deference. Every justice, liberal or conservative, has thought it desirable to allow his or her controversial judgments about constitutional meaning to trump the views of elected officials with regard to some issues.

The problem with John Roberts, then, isn’t that he has allowed his values to influence his jurisprudence—that’s inevitable. The problem with Roberts—if you agree that there is a problem—is that his values are extremely, rather than moderately, conservative. And the problem with the current highly choreographed confirmation process is that it allowed Roberts to win confirmation without revealing much of anything about those values.

Values matter in Supreme Court adjudication. For that reason, they must matter, too, in the Supreme Court confirmation process. In The Next Justice, I try to describe how that can happen, and in my third and final posting in this series, I will summarize some of the book’s recommendations.