Thursday, February 21, 2013

The Multilateral Supreme Court

For those of you who think of the Supreme Court as a political battleground between left-wing and right-wing justices, acting out easily defined roles, I offer Tuesday's four decisions:

An opinion for a unanimous court;

An opinion for a unanimous court, with a concurring opinion by Justice Ginsburg, joined by Justices Scalia and Breyer;

A majority opinion by Justice Kennedy, in which Chief Justice Roberts and Justices Scalia, Ginsberg, Sotomayor, and Kagan, joined; with a concurring opinion by Justice Scalia joined by Justices Ginsburg and Kagan; and a dissenting opinion by Justice Breyer, joined by Justices Thomas and Alito;


an opinion for a unanimous court.

That's three unanimous decisions.  In one, that crazy left-winger Ruth Ginsburg was joined by fire-breathing righty Scalia and moderate lefty Breyer in a concurring opinion reinforcing the importance of quick decisions in inter-country child custody battles.

In the only decision with a split, thos right-wing nuts Kennedy, Roberts, and Scalia were joined by those left-wing nuts Ginsburg, Sotomayor, and Kagan.  Scalia got Ginsburg and Kagan to join him in a concurring opinion.  And the dissent found the odd bedfellows of Breyer, Thomas, and Alito.

None of these cases has a n easy answer; if the case did, it wouldn't make its way to the Supreme Court.  But when the hard cases do get up,  the Justices frequently defy the narrative that they're just applying a rote political philosphy.


Mister Parker said...

My favorite Supreme Court justice of all-time(s) is probably still Walter Matthau in First Monday in October -- not a great movie, but I would feel very much better to have the shambling, compassionate, sharply-witty Matthau running the show than anybody actually sitting on the court.

And imagine with what ferocious glee he would toss one of Scalia's opinions against the wall. "Now it's garbage!"

Who Am Us Anyway? said...

Ah, I love me some bifurcated plurality opinions with 5-prong tests in the morning

Scalia can be wrong 'em boyo, but he's (still) the best writer on the Court so I usually read his opinions first

Fred C. Dobbs said...

Well, I think that's great. Sadly, that's not my impression of how they normally work, and I would guess it's not the popular view, either.

I base my view on the hundreds of SCOTUS opinion I read in law school that were almost all depressingly, predictably decided along 5-4 sharply, sometimes bitterly partisan lines.

That's been my sense of most of the big cases I've read since law school, too. Although, now as then, there are always exceptions.

I also lament that I think SCOTUS has lost a lot of credibility with the public lately. Scalia's idiotic comments about the Voting Rights Act - wait, the right of blacks to vote free of racist oppression is an "entitlement"? and so on - are only the latest in a series of cases and incidents starting around Roe v Wade. After Bush v Gore I could never again take SCOTUS seriously as a non-partisan entity.

So, I'm glad they had a good week. Tough forty-year span, though...

Fred C. Dobbs said...

Oh, forgot to mention: I heard somebody refer to Scalia as "the Rush Limbaugh of the Supreme Court" the other day. I thought that was sadly apt.

There, there's this:

I don't always agree with her but she's more hit than miss, I think.

Also, looking over my last post, I feel I should clarify: I didn't base my view of a hyperpartisan SCOTUS from just taking a 1L Con Law class. I was (as you no doubt remember) a geek about these things, and took Con Law 1, Con Law 2, Crim Pro, Fed Courts and the Fed System, and Admin Law.

I think my breaking point was the series of Antitrust cases, which actually go back to the pre-New Deal days - case after case where the conservative wing argues passionately IN FAVOR of monopoly market power. Or maybe the several weeks we spent dissecting Bush v Gore in Fed System. I'm just very cynical.

mister muleboy said...

I don't disagree with most of what you've written, Fred. But I was implicitly arguing that the lines aren't partisan as I understand that word to be used in the main. And I do so explicitly now, although not strongly since it's largely an abstraction.

I associate partisan with the two dominant parties. And I find the 5-4 decisions, the hotly divided court, actually reflect a philosophical division in the court. Those philosophies, of course predictably hew to the respective parties because the parties tend to share the philosophy. Ultimately not a particularly meaningful distinction, but one that I believe is there. Others do not.

But the philosophies also make for strange bedfellows. And sometimes make for schizoid tensions in a justice whose philosophy is based on values that lead to some internal contradictions.

Having said [written] all that, which I believe, I can't find any reasonable justification for Bush v. Gore, so you may be right all the way down the line.

Fred C. Dobbs said...

Well, you follow SCOTUS much more closely than I do these days, so I give a lot fo credit to your view. I was just struck that the week of decisions you described reflected more of how I would hope and expect the SCOTUS to do its work, but that in my view - from having read hundreds and hundreds of opinions in law school, and from being a more-than-casual-but-not-Watsonian follower since then - that there is more often than not a sadly predictable 5-4 divide along...OK, *party philosophy*, I will accept that term as more accurately descriptive. Of course, I think the whole point of your post is that it's NOT always like that, despite perception, so that is welcome news to me.

Fred C. Dobbs said...

I remember coming away from Bush v Gore thinking that it was 1) a political question not for the courts, 2) usurping state rights when there was a state mechanism already in place to resolve the issue, and 3) creating a new Federal right which had never existed other words, everything conservatives claim to abhor about the judiciary. Republicans' unreserved glee over the outcome, to me, proved that the modern GOP (at least) stands for absolutely no principle other than consolidating power for itself.