(Part 2) Questions for Nominee Kavanaugh

So what about this "originalism" and "settled principles" approach to judicial decision-making that Judge Kavanaugh touts? Sounds fine. We'll see.

In the last post (see Part 1), we scrutinized one branch of the originalist/textualist judicial "philosophy" embraced by Judge Brett Kavanaugh. Specifically, the "not-in-the-text" insistence that judges ought not to "make up" rights that are "not in the text of the Constitution."

That superficially appealing, pseudo-constitutional nonsense--yes that's harsh, but that's really all it is--ignores the fact that most of our most basic liberties don't happen to be in the text. They are nowhere to be found in the Constitution. That document is not, and absolutely was never intended to be, a catalog of rights in American free society--let alone an all-inclusive catalog.

Beyond that, the Founders and Framers actually anticipated that such "not-in-the-text" nonsense would be raised. Madison, Hamilton, and others were originally opposed to any declaration of rights that might possibly be deemed to be a complete list. So when they eventually decided to include such a list, which we now call the Bill of Rights, they included a 9th Amendment which makes explicit that the list is anything but complete.

And yet, Judge Kavanaugh--like others who don't happen to like some of the unlisted rights that have nevertheless been recognized--has somehow repeated that nonsense. It is really difficult to believe that he actually believes it. (Or that his hero, the late Justice Scalia--who opposed gay rights and same-sex marriage and a woman's right to choose and the "incorporation" of the Bill of Rights as due process protections against the states--actually believed it either.) Unless, of course, Judge Kavanaugh means something very different than what he is saying.
(Again, see Part 1 for a very small sampling of the most basic rights we enjoy in American free society which Kavanuagh's "not-in-the-text" nonsense would preclude.)

Now, let's consider that other branch of the originalist/textualist judical "philosophy" that Judge Kavanaugh has embraced. This branch has to do with limiting constitutional rights and liberties to what was specifically intended when the provisions were originally adopted. So no policy-making decisions, and especially not those that diverge from--or enlarge--what was originally intended. But Kavanaugh does seem to be a little flexible on this score. He also speaks about "settled principles" that should bind judges. Apparently, even if those settled principles were not part of the "original intent."

Here is how he put it himself last year, in an address at Notre Dame law school, in honor of Justice Scalia:

Justice Scalia...explained that federal judges are not common-law judges and should not be making policy-laden judgments. Along the same lines, Chief Justice Roberts has famously articulated the vision of the judge as umpire.
I believe very deeply in those visions...By that, I mean a neutral, impartial judiciary that decides cases based on settled principles without regard to policy preferences....
There is often a debate about originalism versus living constitutionalism. Justice Scalia famously promoted originalism. Originalism is akin to textualism, but it takes account of the fact that the meaning of a word might have changed from the time of enactment to today. When that has occurred, the meaning at the time of enactment controls.

So 1) original meaning of the text and 2) settled principles. Does Judge Kavanaugh--like Justice Scalia before him--really believe that? In the abstract? In practice?

To be fair, it should be acknowledged that this original intent and settled principles vision of the judicial role is not preposterous. No, it is not utter nonsense like "not-in-the-text." It is actually one view of judicial restraint that leaves change and policy-making, as much as possible, to the two democratic--i.e., popularly elected--branches of government. It views judicial review--especially when it results in invalidating the actions of those other branches--to be largely anti-democratic, because it not based on popular will.

Accordingly, in a democratic society, such a restrained view of the judicial role calls for considerable deference to the politically elected branches.
(Of course, as even Judge Kavanaugh would presumably agree, judicial review is most essential when it actively protects fundamental rights despite what is popular and, indeed, despite being contrary to what the politically elected branches have done.)

But if this vision of "original intent" and "settled principles" is not utter nonsense, it is at the least very troublesome. The consequences of its application would be drastic. And that is why it is rarely, if ever, adhered to or admitted to by the self-proclaimed devotees when confronted with its implications. That vision is typically raised only to criticize those still-controversial decisions that the devotees happen to dislike.

When confronted with judicial landmarks that we cherish as Americans, insistence upon "original intent" or "settled principles" almost always diminishes or is more palatably redefined. Because these landmark decisions, most of which we now take for granted, were possible only because "original intent" and "settled principles" were disregarded or rejected by the Supreme Court.

Let's consider just a few such landmarks--and the constitutional doctrines they adopted that we now take for granted. Again, none of them would have been possible if  the Court had adhered to "original intent" or "settled principles." What about these:

• Outlawing racial segregation--contrary to original intent and to the settled principles at the time. In its 1954 decision in Brown v. Bd. of Ed., the Court disregarded the original narrow purpose of the post-Civil War 14th Amendment, specifically the Equal Protection Clause, which absolutely was not meant to end the separation of the races. It would never have been ratified in 1868 with such an understanding. Also, the Court in Brown overruled the settled principle of "separate but equal," which had been the law of the land, endorsed by the Court in 1896 in Plessy v. Ferguson.
• Legalizing interracial marriage--contrary to original intent and to settled principles at the time. In its 1967 decision in Loving v. Virginia, the Court again disregarded the original purpose of  the Equal Protection Clause. It held that discrimination against interracial couples was unconstitutional. It also disregarded the original meaning of the Due Process Clause and recognized a constitutional right to marry. A right of interracial marriage was absolutely no part of the 14th Amendment's purpose in 1868, and ratification of that amendment would have been doomed if it were. Moreover, the Court's ruling in Loving was contrary to the settled principles at the time that states were free to regulate marriage, and that anti-miscegenation laws were constitutional, just as the Court had held in its then-longstanding precedent in Pace v. Alabama (1883).
• Applying Equal Protection to women--contrary to original intent and to settled principles at the time. In its 1971 decision in Reed v. Reed [Yes, it took that long!], the Court once again disregarded the original narrow purpose of the 14th Amendment's guarantee of equal protection (i.e., insuring citizen rights to the newly freed black slaves), and applied it to require that laws treat women equally to men--something absolutely not intended in 1868. Indeed, the "settled principles" at the time Reed was decided in 1971 had allowed discriminatory treatment of women--e.g., Bradwell v. Illinois (1873) [women may be barred from practicing law]; Strauder v. West Virginia (1879) [women may be barred from jury service]; etc., etc., etc. [BTW, Judge Kavanaugh's originalist hero did insist that the Equal Protection Clause did not apply to women.]
• Legalizing birth control for married couples--contrary to original intent and to settled principles at the time. In its 1965 decision in Griswold v. Connecticut, the Court recognized a fundamental right of marital privacy--including intimate relations--which was not part of the original meaning of any particular provision in the Constitution. Moreover, the Court disregarded the well-settled principle that the regulation of marriage and sexual morality were left to the states.
• Outlawing racial discrimination in hotels and restaurants--contrary to original intent and to settled principles at the time. In its 1964 decision in Heart of Atlanta Motel v. U.S., the Court upheld the Civil Rights Act of 1964, which prohibited racial discrimination in public accommodations, even if privately owned. The Court did so by enlarging the original meaning of Congress's commerce power, extending it to the impact of travelers on interstate commerce. The Court also disregarded the settled principle, from the Civil Rights Cases of 1883, where it had held that the similar anti-discriminatory provisions of the Civil Rights Act of 1875 were unconstitutional exercises of congressional authority.
• Requiring a warrant for searches of private activities--contrary to original intent and to settled principles. In its 1967 decision in Katz v. U.S., the Court enlarged upon the 4th Amendment's original search and seizure rights and held that protections were not limited to the items specifically mentioned in that Amendment--i.e., "persons [bodies], houses, papers, and effects [personal property]." Rather, the Court in Katz applied 4th Amendment protections to the privacies that people could reasonably expect in our free society. So, for example, a warrant would be required to electronically eavesdrop on a private phone conversation--even though neither "phone" nor "conversation" is mentioned in the 4th Amendment. Also, the Court rejected settled principles from a long line of cases that had interpreted the 4th Amendment in that much more restricted literalist manner. (E.g., Olmstead v. U.S. [1928]--upholding the wiretapping of private phone conversations without a warrant.)
• Right to counsel for the poor--contrary to original intent and to settled principles. In its 1962 decision in Gideon v. Wainwright, the Court rejected the restricted original understanding of the 14th Amendment and held that the Due Process Clause guaranteed more than the right of an accused to hire a lawyer. It also included--to insure basic fairness in criminal prosecutions--the right of to have a lawyer appointed for those who could not afford one. That decision also rejected the well-settled principles at the time that 1) the 14th Amendment had made only a few rights of the accused in the Bill of Rights applicable to the states, and 2) that the appointment of counsel for the poor was not required, except in capital cases and other special circumstances. (E.g., Betts v. Brady [1942]--no right to the appointment of counsel in a robbery prosecution.)
• Right to a trial by jury--contrary to original intent and to settled principles at the time. In its 1968 decision in Duncan v. Louisiana, the Court enlarged the meaning of the 14th Amendment as originally understood and held that the Due Process Clause entitled the criminally accused to be tried by a jury for all but minor charges. The Court also persisted in rejecting the formerly well-settled principle that the 14th Amendment had made only a few rights of the accused in the Bill of Rights applicable to the states, and it rejected longstanding precedents that the right to a jury was not a fundamental of constitutional due process.
• Etc., etc., etc.

Judge Kavanaugh ought to be questioned about these and similar cherished landmarks, where the Court refused to be restricted to the original intent of particular constitutional provisions and where it rejected settled principles.

Does he believe that these landmarks were wrongly decided? Correctly decided, even though the Court disregarded original intent and rejected settled principles? Or correct because, in some amorphous sense of original intent or settled principles, the Court's decision was somehow faithful to one or both? Or does he really not believe in a judicial philosophy of original intent and settled principles?

To be sure, as is typical for Supreme Court nominees, Kavanaugh will almost certainly decline to say whether those cases were wrongly decided or how he would have voted in those cases.

(Although nominees will usually say that Brown v. Bd. of Ed. was correctly decided and that the nominee would have voted that way--because to say otherwise at this point in time would be shameful. But at the same time, self-proclaimed originalists will rarely acknowledge that the Brown decision was entirely contrary to the original intent of the Equal Protection Clause.)

But there are surely ways of questioning Kavanaugh to elicit the same sorts of insights into his thinking. The former trial lawyers among the Senators should be able to do that. Perhaps one approach might be, "How would an originalist Justice have voted in those landmarks?" And "How would a Justice who believed in following settled principles have voted?" Or "How would a judicial philosophy of original intent be applied to those landmarks?" And "How would a judicial philosophy of following settled principles apply?"

Would Judge Kavanaugh be honest and acknowledge that those landmarks were possible only because the Court disregarded original intent and rejected settled principles?

Or would he dissemble and attempt to explain how those landmarks are actually true to original intent or settled principles? That, of course, would be extremely disingenuous--either because such an attempted explanation would be untrue and he undoubtedly understands that, or because the "original intent" and "settled principles" that he embraces are so devoid of any concrete meaning as to be utterly deceptive.

Or would Judge Kavanaugh surprise everyone and deny that he believes in originalism or in following settled principles?

In any event, Judge Kavanaugh must be pressed on these issues at the confirmation hearing. That doesn't mean that he will be. Either because the questioning will be uninformed or inept or timid or all of those. Or because any such substantive, probing questions will be blunted by his being unresponsive or by the protective wrangling and obsequiousness of his supporters.

Having faithfully watched many confirmation hearings, I don't expect too much in the way of revealing, forthright, enlightening exchanges between the senators and Judge Kavanaugh. It's more likely that we will hear supporters telling him how wonderful he is and lobbing softball questions to him; opposing senators being frustrated in trying to get direct and candid responses to their questions; and the nominee himself serving up some nice sounding pablum to appeal to his supporting senators and to their voters.

Yes, that's more likely. But let's hope for some surprising substance--every once in a while we get some. Perhaps Judge Kavanaugh will address the cherished landmarks discussed above and others, and acknowledge that they would have been decided differently if the Court had applied "original intent" and "settled principles." In that unlikely event, the Senate and the American people might understand just how drastic the consequences of his vision of judicial decision-making would be.

On the other hand, if Judge Kavanaugh does not respond honestly, then at least those who follow these nomination proceedings closely will know that he avoided giving truthful answers, and we will have learned something disquieting about his integrity.

There's also the possibility--the likelihood in my view--that any answers he gives would be unresponsive, or that he would simply refuse to answer for some ethically-sounding reason. In that case, we can be sure that he'd rather conceal his answers than to acknowledge them publicly.

Unfortunately, as polarized as the Senators and the country are, none of Judge Kavanaugh's answers or non-answers may make any difference. Virtually all the senators are likely to vote along party lines. Nevertheless, the tough questions about his vision of judicial decision-making should be asked. At the least, one way or the other, we would get some sense of the Justice we're getting.

Questions for Nominee Kavanaugh (Part 1)

The battle now begins.

As we all now know, federal appeals court Judge Brett Kavanaugh of the D.C. Circuit was nominated for the Supreme Court this week by President Trump. To Republicans, he is apparently the greatest thing since sliced bread. To Democrats, he is apparently the prince of darkness. Well, like most of us, he's somewhere in the middle.
(His official biography is linked below.)

He is ideologically conservative. Maybe very much so. Maybe extremely so. To liberals--or  progressives or whatever we call ourselves today--his views are diametrically opposite. Anathema.

And this is not about judicial activism versus restraint. (Do conservatives--whose Justices in the modern era have been even more active than the liberals ever were in overturning the choices of the other branches and the states--speak in those terms anymore? Except perhaps the uninformed when speaking to the uninformed.)

Nor is it really about any interpretive methodology--i.e., strict versus loose construction, literalism versus consequentialism, originalism versus a living Constitution, etc., etc. Nor, relatedly, about the proper role of the judiciary in applying law versus making it. No, it's about the substantive issues.

Come on. Let's put the cards on the table. The substantive issues are what these nominations and confirmations have been all about. The talk about the properly restrained judicial role versus activist judges, etc. etc.--and also about credentials, qualified or unqualified--is the thinnest veil of what is really driving the support or opposition to a nominee.

So, for example, today it is really about a woman's right to choose, about gay rights, about religious exemptions from anti-discrimination laws and religion in the public arena, about gun rights, about affirmative action, about campaign finance, about racial and partisan gerrymandering, about voting rights, about worker protections versus business freedom, about rights of the accused, about privacy protections in the digital age, etc., etc.

That's what it's really about. But, of course, we don't get candor about that from a Supreme Court nominee or from the nominee's supporters. And we almost certainly will not get candor from nominee Kavanuagh or his Republican supporters. (We wouldn't --and did not--get that from Democratic nominees or their Democratic supporters either.)

Instead, we are sure to get lots of the routine, blah blah pablum about faithfully applying the Constitution, about simply interpreting the Constitution and other laws according to what they say and mean rather than one's personal views, and about not making policy from the bench because that is the province of the other branches. But little if anything of real substance about the actual substantive issues of the day--which is what everyone really wants to know about.

But answering such questions is dangerous for a nominee. The revelations might prove extremely unpopular or open other delicate areas for questioning. So the responses will either be finessed or the nominee will simply refuse to give an answer based on some ethical pretext. (Judicial ethics only prohibits actually promising to rule a particular way or expressing firm views about a pending case. As conservative idol Justice Scalia explained, we would not want a judge who was actually devoid of views about the important issues of the day. Yes, I'm agreeing with Scalia on that one!)

So what to do when questioning a smart, politically experienced, well-schooled nominee like Judge Kavanaugh at the confirmation hearings? How to get some actual insight about the kind of Justice he would be? Yes, he can be questioned about his opinions as an appellate judge. But any that might seem wrongheaded or be unpopular could be explained away by Kavanaugh as simply following the Supreme Court's precedents which bind the lower courts, or as applying existing law without regard to his own personal views.

But then there are his personal views about the judicial role. Views that he has expressed about how courts and judges should interpret the law. Particularly the Constitution.

Kavanaugh is being lauded for being an "originalist" and "textualist" in the mold of the late Justice Scalia. That is, the Constitution should be interpreted according to the original or historic meaning of the text. Period. No "living Constitution" to adapt to the changing values of justice and equality of the day. Whether he is actually an "originalist" or or a "textualist" not is another story. So let him speak for himself:

The judge’s job is to interpret the law, not to make the law or make policy. So read the words of the statute as written. Read the text of the Constitution as written, mindful of history and tradition. Don’t make up new constitutional rights that are not in the text of the Constitution.
(George Mason University, Antonin Scalia Law School [2016])

Judge Kavanaugh said "It’s not complicated."

It sure isn't. It's simplistic, contrary to the Constitution itself and, if actually followed, would have profoundly drastic implications for the most basic liberties Americans today enjoy and take for granted.

And that is why neither conservative nor liberal Justices actually adhere to such originalism/textualism, except when it suits them. And more to the point here, at confirmation hearings, the self-proclaimed originalists and textualists--and other species of supposed judicial restraintists--will nevertheless embrace cherished landmark decisions that were utterly non-originalist, non-textualist, and very activist. E.g., Brown v. Bd. of Educ, outlawing racial segregation--which was certainly not what the 14th Amendment was intended to do, nor what its text requires.

Guaranteed, no Supreme Court nominee today will decry that activist, policy-making Brown landmark. And there are plenty of others. In fact, most landmarks are exactly that--activist and policy-making. They change what had been original or what the text itself means.

But before continuing with other landmarks, about which Kavanaugh ought to be asked to reconcile with his originalism/textualism (and they cannot honestly be so reconciled), let's turn to something even more basic. In fact, maybe the most basic. It has to do with the nonsensical complaint, repeated ad nauseam as though religious dogma, that a right should not have been recognized and enforced by the Court because it is not mentioned in the Constitution. Or as Judge Kavanaugh put it in the excerpt above: "Don’t make up new constitutional rights that are not in the text."

Yes, it sounds good. It sounds "uncomplicated," to quote Kavanaugh again. But it is the purest nonsense. And it's a danger to the American scheme of "ordered liberty"--to borrow from Benjamin Cardozo.
[He, of course, was one of the greatest jurists in our history, and he well-understood that such originalism and textualism and not-mentioned-in-the-text (as well as judges-should-not-make-law-or-policy) to be utterly contrary to what judges necessarily do. And to Cardozo, you can add Holmes and Friendly and Posner and countless others of our most venerated and candid jurists who understood and acknowledged the same.]

The Founders and the Framers of the Constitution themselves also understood this. Indeed, we nearly didn't have a Bill of Rights because they feared that "it's not in the text" or "it's not mentioned" would be argued in the future. They worried that by including any rights in the text of the Constitution, those that were not mentioned in the text would later be denied.

To allay such fears, a provision was included in the Bill of Rights to foreclose such a "it's-not-in-the-text" argument. That 9th Amendment make clear, in no uncertain terms, that the rights specified elsewhere in these first amendments was necessarily a very limited list, and that unmentioned rights--i.e., those not in the text!!!--were not to be denied.
(9th Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.")

This was James Madison's attempt to put a nail in the coffin of the "it's-not-in-the-text" argument. It was his way of saying to Americans at the time and in the future, "don't worry that a right doesn't happen to be mentioned."

That is not to say that every right that might be claimed is entitled to constitutional recognition and protection--i.e., that it is "implicit in the American scheme of ordered liberty." (To again quote Cardozo.) But the mere fact that such a right is not "enumerat[ed]" in the text is irrelevant.

Judge Kavanaugh ought to be questioned about the 9th Amendment. And he ought to be asked whether his "not in the text" argument is exactly what the Founders and Framers feared, and whether he knows that his argument nearly killed the idea of having a Bill of Rights.

Let's consider a few of those "constitutional rights that are not in the text" and which, supposedly, according to Judge Kavanaugh (and other advocates of originalism and textualism), the courts ought not to "make up." What about:

• the right to get married--yes, even for heterosexuals. NOT in the text.
• the right to have sexual relations with another consenting adult--yes, even if with a spouse. NOT in the text.
• the right to have children--yes, even if for lawfully married couples. NOT in the text.
• the right to raise one's children--yes, absent abuse or neglect. NOT in the text. 
• the right to hug or kiss your spouse or parents or children or friend--NOT in the text.
• the right even to have a friend--NOT in the text.
• the right to associate in a group of friends or like-minded individuals or to play games. NOT in the text.
• the right to choose whether or not to eat lunch or another meal, or when to eat dinner or any other meal. NOT in the text.
• the right to go for a stroll in your neighborhood. NOT in the text.
• the right to sing in the shower or listen to music or read poetry. NOT in the text.
• "the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men" (Justice Louis Brandeis). NOT in the text.

[The entire oft-cited excerpt from Brandeis's renowned and later vindicated and adopted dissent in Olmstead v. United States (1928):

"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."] 

Need I go on? Most of the most basic rights and liberties in living in a free society are NOT in the text of the Constitution. That document is not, and was never intended to be, a catalog of such rights. And again, to make that point clear, the 9th Amendment was included among the original ten, in the hopes of warding off the "it's-not-in-the-text" argument. But that argument keeps rearing its ugly and ignorant head. One must wonder if Judge Kavanaugh, his ilk and his supporters actually believe it.
[For further discussion, see Supremely Awful Arguments: Constitutional Nonsense (Part 2).]

In fact, it's a sure bet they actually don't believe it and don't practice it unless it gets them where they want to go. (More about that in the next post.) But for now, the point is that Judge Kavanaugh's insistence, that judges ought not to "make up" rights that are "not in the text of the Constitution," is actually contrary to the Constitution itself, which explicitly warns against denying rights that are NOT in the text.

Judge Kavanaugh ought to be questioned about all of those "NOT in the text" rights, and others. He ought to be asked which ones the courts and judges--and especially the Supreme Court--should not be recognizing and protecting, simply because they are "not in the text" as he says. And does he really believe that the fundamental principles of liberty that underlie the body of the Constitution and the Bill of Rights do not protect such basic freedoms--just because they are "not in the text?"

In addition to being at odds with the Founders' and Framers' understanding that rights did not need to be enumerated in the Constitution, this not-in-the-text argument is in fact contrary and irreconcilable with most of the essential and cherished rights that courts and judges--including the Supreme Court--have recognized and protected in landmark decisions. They were recognized and protected only because the pseudo-constitutional nonsense of not-in-the-text was disregarded.

It is these rights, protected by courts and judges--and specifically in Supreme Court landmarks--that will be the focus of the next post on Judge Kavanaugh and his avowed originalism and textualism.


[For Judge Kavanaugh's official U.S. Court of Appeals biography: https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL+-+Judges+-+BMK]

Supremely Awful Arguments: Constitutional Nonsense (Part 4--"Activism")

Criticizing [that awful, illegitimate, undemocratic] "Judicial Activism"

(Yes, it's been a while. Corruption trials, the selection process for a new Chief Judge, commentary and presentations on that and the courts (i.e., lots of talking). That on top of classes, students, and a crazy, hectic semester overall. But, concededly, loving it all.)

Now, on to the nonsense about "judicial activism." That is, the customary condemnation of it.

It's as though the judicial branch is supposed to exercise its role halfheartedly. Less fully and vigorously than the other branches. Why has this nonsense--yes, again, it's nonsense--gained currency?

Are there stupid decisions? Yes. Deceptive decisions? Yes. Unintelligible decisions? Yes. Unsupported and unjustified decisions? Yes. But criticize the Supreme Court, or any other court, for vigorously--"actively"--exercising the judicial role? Especially when the judicial role is exercised in the service of fundamental principles of American free government?

Let's consider some of the most "activist" and, at the time, maligned decisions of the Supreme Court. And let's ask which ones were wrong? Which ones were illegitimate exercises of raw, unbridled judicial power that should be curbed? Which ones should be undone?

Brown v. Board of Education (1954): outlawing racial segregation.
That decision overruled precedent that had endorsed the "separate but equal" doctrine. (I.e., Plessy v. Ferguson [1896] and the numerous decisions that followed.)
That decision invalidated state laws that kept the races segregated.
That decision rejected a narrow, "restrained," "originalist" interpretation of the Constitution's 14th Amendment equal protection guarantee, which never would have been ratified in 1868 if its express intention was to end segregation.
That decision's companion (Bolling v. Sharp, decided the same day) invalidated segregation in the District of Columbia and the federal government generally, even though the Constitution's only equal protection clause explicitly applies only to the states.
That decision did what the Congress and many of the states were unable or unwilling to do through the democratic process.
That decision overturned the longstanding, societal status quo in this country.
That decision gave full force and effect to the constitutional principle of equal treatment, despite the equal protection clause's much more limited specific purpose.
That decision was so unpopular in many parts of the country that President Eisenhower had to send in the troops--including the 101st Airborne--to enforce it.

In short, that decision was as "activist" as an activist decision can be.
Does that make it a bad decision?
An illegitimate exercise of the judicial role?
Would this country have been better off without it?
Should that decision be undone?
An America without the Brown decision?

Let's try another.
Gideon v. Wainwright (1963): guaranteeing the right to counsel in all criminal trials.
That decision overruled precedent (Betts v. Brady [1942]) in which the Court had rejected any such right to the assistance of counsel in non-capital cases.
That decision invalidated state laws that guaranteed the assistance of a lawyer only when a defendant faced the death penalty or in other limited circumstances.
That decision extended the term "due process"--applicable to the states through the 14th Amendment--to include the right to counsel in all criminal cases, even though that Amendment does not mention any such guarantee.
That decision gave full force and effect to the right to counsel as a fundamental right, recognized by Justice Cardozo in dictum in Palko v. Connecticut (1937) as being implicit in the American scheme of ordered liberty, because essential to fairness in criminal prosecutions.
That decision was extremely unpopular in several states, especially in the South, and was among the series of criminal justice rulings in the 1960's for which "law and order" politicians condemned the Court as being activist, pro-criminal, and violative of state prerogatives.

Another bad activist decision?
Another illegitimate exercise of the judicial role?
Would this country have been better off without it?
Should that decision be undone?

And what about this next one?
Loving v. Virginia (1967): guaranteeing the right to marry to interracial couples.
That decision overruled precedent (Pace v. Alabama [1883]) in which the Court had upheld laws that criminalized marriage and sexual relations between whites and non-whites.
That decision invalidated state laws (16 such anti-miscegenation statutes in the South), such as Virginia's so-called "Racial Integrity" law, which the couple had violated in this case.
That decision was another that rejected a narrow, "restrained," "originalist" interpretation of the 14th Amendment's equal protection guarantee, which never would have been ratified in 1868 if its express intention was to allow interracial marriage.
That decision overturned the longstanding, societal status quo in the Southern states and, as a de facto matter, in much of the country.
That decision contravened "states rights."
That decision was contrary to overwhelming public opinion in the country, with only 20% approving marriage between blacks and whites at the time (according to Gallup).

Another one of those bad, illegitimate, activist decisions?
Country would be better off without it?
Should be undone?

What about these--just to mention a few more that make (what I believe to be) the incontrovertible point?
Pierce v. Society of Sisters (1925): protecting parents' right to send their children to private religious schools rather than public ones--interpreted "due process" and "liberty" to include the right of parents to raise their children, which the Constitution nowhere mentions; invalidated all state laws requiring that children attend public, not private schools; simultaneously overrode the popular anti-immigrant sentiment (white supremacist, anti-Catholic, anti-Semitic, etc.) underlying those laws; rejected the claimed power of states to dictate all education retirements; disregarded (and effectively overruled) precedents that the 14th Amendment did not protect any implicit rights or liberties against state governments.
NAACP v. Alabama (1958): protecting the right to associate with others--invalidated state laws interfering with the freedom to join groups with like-minded persons; recognized a freedom of association nowhere mentioned in the Constitution; broadly interpreted free speech as including a fundamental right to associate with others for the purpose of advancing beliefs and ideas; broadly interpreted "liberty" and "due process" in the 14th Amendment as including such rights to be applicable against the states; in short, recognized an unenumerated  right to join groups with like-minded individuals.
Reed v. Reed (1971): invalidating gender discrimination against women--overruled a long line of precedents (e.g., Bradwell v. Illinois [1973], which allowed states to prohibit women from becoming lawyers);  invalidated countless state laws that treated women unequally; rejected a narrow, "restrained," "originalist" interpretation of the equal protection guarantee; rejected the longstanding, societal status quo that confined women to traditional roles; and effectively adopted the gender equality mandate of the ultimately-failed ERA (Equal Rights Amendment) as a matter of constitutional case law.
Lawrence v. Texas (2003): recognizing the right of adults to engage in consensual sex in private, absent some counterbalancing legitimate government interest--invalidated state laws that criminalized "sodomy" (i.e., anything but vaginal intercourse), based solely on moral, religious, and biblical condemnation; overruled precedent (the shameful Bowers v. Hardwick [1986] decision) that had upheld such "sodomy" laws as applied to same-sex couples, again based solely on moral, religious, and biblical condemnation; rejected a narrow, "restrained," "originalist" interpretation of "liberty" that would limit it to freedom from physical restraint; rejected popularly enacted restrictions on intimate private conduct, absent some legitimate government/societal interest in health, safety, or welfare.
(Yes, there are those who view homosexuality as wrong for moral, religious or other reasons, and those who support laws against homosexual conduct. But whatever one's views on that specific issue, the sole principle enforced in the Lawrence decision--that the government has no business interfering with the most private aspects of our lives without some good reason--is nothing less than one of the essential foundations of American free society.)

And there are countless other examples where the Court gave effect to what we cherish most about being American. Rights that we take for granted today, but which became reality only because of "activist" decisions that were typically unpopular at the time.

Make no mistake, "activist" decisions are hardly confined to politically liberal outcomes. Just a couple of recent ones (actually 3) makes the point.
Citizens United v. Federal Election Commission (2010): recognizing a right to finance the production and distribution of a political communication--invalidated federal law (and similar state laws) that limited independent campaign spending; overruled precedent that had approved campaign finance restrictions; rejected a narrow, "restrained," "strict" interpretation of the 1st Amendment's protection of "speech;" protected spending money on political communications as a 1st Amendment right; repudiated popular and democratically enacted measures intended to curb campaign corruption.
McDonald v. City of Chicago (2010) and District of Columbia v. Heller (2008): recognizing an individual right to bear arms assertable against the federal and state governments--invalidated numerous federal and state laws limiting gun ownership; overruled precedent that had confined gun rights to the context of state militias and that held that 2nd Amendment rights were not assertable against state governments; broadly interpreted "liberty" and "due process" in the 14th Amendment as including individual gun rights.

One more thing about which to make no mistake. Whatever one might think about the foregoing politically conservative examples of judicial activism, there are certainly "activist" decisions that are part of the junk heap of discredited rulings. Just as "activism" doesn't necessarily result in a bad decision, it hardly insures a good one either.

A few examples? Check these out.
Lochner v. New York (1905): denying the power of states to adopt health regulations setting maximum hours for workers--invalidated New York's (and by implication any other state's) health laws that limited the number of hours employees [in this case, bakers] could work; broadly interpreted "liberty" and "due process" in the 14th Amendment as including the "right of free contract" that largely prevented states from regulating working conditions; repudiated the health concerns underlying the law that had been affirmed by the state's highest court.
(N.B., Justices John Marshall Harlan and  Oliver Wendell Holmes each wrote dissenting opinions and, for that and other reasons, it is not surprising that this decision was eventually overruled.)
Hammer v. Dagenhart (1918): denying the power of Congress to place limitations on child labor--invalidated the federal Child Labor Act of 1916 that enforced restrictions on child labor; adopted a novel, tortured reading of the interstate commerce power as not reaching manufacturing; rejected popular, democratically enacted health and safety protections for children, in the interest of protecting business freedom.
(N.B., this decision too was eventually overruled and another dissent of Justice Holmes was vindicated.)
Adkins v. Children's Hospital (1923): denying the power of government to set minimum wages--invalidated the federal (and by implication any state's) law setting minimum wages for workers; broadly interpreted "liberty" and "due process" in the 5th Amendment as including the "freedom of contract" that largely prevented the federal government from regulating working conditions; adopted a tortured distinction between the (by then) accepted governmental power to set maximum hours and the disallowed power to set minimum wages; rejected popular, democratically enacted labor protections [in this case for women and children] in the interest of protecting business freedom.
(N.B., this decision too was eventually overruled and yet another dissent of Justice Holmes was vindicated.)

Finally, the point of all this is that the judicial "activism" argument is nonsense. Whether a decision is "activist" or not does not necessarily have a whit to do with whether it's a good or bad one, wise or foolish, enduring or fleeting, cherished or discredited.

A judicial decision may overrule precedent or not; may invalidate legislation or not; may be contemporaneously popular or not; may adopt a strict or "loose" interpretation, a traditional or novel one; etc., etc., etc. But none of those characteristics of "activism" or "restraint" are very helpful in assessing a judicial decision. Decisions with any combination of those qualities may be good ones or bad ones.

As is usually true for most serious matters, the whole question cannot be resolved with simplistic dichotomies. I did my best to address the matter a few years ago.  I'm not sure I can improve upon my admittedly unoriginal and not wholly satisfactory sentiments at the time. So, in conclusion, here they are:

To deny that bold exercises of judicial activism have produced some of our proudest and wisest landmarks...is either blind ideology, woeful ignorance, or some other specie of nonsense. The American experience with judicial review emphatically demonstrates that activism and restraint are not helpful as dividing lines between good and bad judges, worthy and flawed decisions. 

[W]hen we talk about judges, when we talk about decisions, the qualities that count are wisdom, foresight, discretion, a sense of history, an appreciation of the possible, pragmatism, fairness to the parties, promotion of the common good, and dedication to the fundamental principles of the American constitutional republic. That, of course, is what judging is all about; those are the kinds of qualities that make a good judge and a worthy decision. 

(Judicial Activism, Judges' Speech, and Merit Selection: Conventional Wisdom and Nonsense, Albany Law Review, Vol. 68, No. 3, 2005 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1142071])

Update--Supremely Polarized: Partisanship Continues to Prevail

(We'll return to the Recaps--last week's marriage decision and then today's on lethal injection. But first, let's update last week's "Supremely Polarized" post.)

We've discussed and documented the politically partisan voting on the current Supreme Court quite a bit on New York Court Watcher. We did so in a lengthy series in 2012. And a few days ago--with all the decisions released since then, it seems like years--we surveyed the Justices' voting in some of the tough, controversial cases already decided this term. (See Supremely Polarized: Partisanship Continues to Prevail.)

Let's now update that survey. In reviewing the list of decisions and the repeated line-ups among the Justices, ask yourself again: are they voting like politically neutral, objective judges, or like partisan politicians? Like independent minded jurists or political party faithfuls?

Texas Dept. of Housing v. Inclusive Communities Project, ruled that a claim of racial discrimination in housing may be based on "disparate impact" (i.e., harmful results) as opposed to a showing of intentionally discriminatory treatment.
5 (Kennedy [wrote Court's opinion] + Ginsburg, Breyer, Sotomayor, Kagan)versus
4 (Alito [wrote dissent] + Roberts, Scalia, Thomas)

Obergefell v. Hodges, ruled that same-sex couples have a constitutional right to marry.
5 (Kennedy + Ginsburg, Breyer, Sotomayor, Kagan)
versus
4 (Roberts + Scalia, Thomas, Alito)

Glossip v. Gross, ruled that lethal injection with the sedative midazolam has not been shown to create a significant risk of serious pain in violation of the prohibition against cruel and unusual punishment.
5 (Roberts + Scalia, Kennedy, Thomas, Alito)
versus
4 (Sotomayor + Ginsburg, Breyer, Kagan)

Arizona Legislature v. Arizona Independent Redistricting Commission, upheld the popularly voted initiative that created an independent commission to replace the legislature in deciding the state's voting districts.
5 (Ginsburg + Kennedy, Breyer, Sotomayor, Kagan)
versus
4 ( Roberts + Scalia, Thomas, Alito)

Michigan v. EPA, ruled that the Environmental Protection Agency must consider the cost of compliance when regulating the hazardous pollutants emitted from power plants.
5 (Scalia + Roberts, Kennedy, Thomas, Alito)
versus
4 (Kagan + Ginsburg, Breyer, Sotomayor)

In all fairness, let's add:
King v. Burwell, ruled that under the Affordable Care Act ("Obamacare") tax subsidies are available for purchases of insurance on federal exchanges, not only on exchanges actually established by a state.
6 (Roberts + Kennedy, Ginsburg, Breyer, Sotomayor, Kagan)
versus
3 ( Scalia + Thomas, Alito)

So there are the most recent decisions of the Court--the tough ones, with controversial issues.

Note that every case, but one, was divided 5-4 along politically partisan lines, with Justice Kennedy as the deciding vote.

In the one exception, King v. Burwell, the Obamacare subsidies case, Chief Justice Roberts joined Kennedy and the liberals, and wrote the opinion for the 6 Justice majority. But even in that case, all 4 Democratic liberals voted together in the majority, and the 3 most conservative Republican Justices voted together in dissent.

As I asked at the outset: are the Justices voting like politically neutral, objective judges, or like partisan politicians? Like independent minded jurists or political party faithfuls?

With an occasional exception, the answer seems obvious.

For a complete list of of these decisions--combining those above with those listed in the previous post--see the post below this one. (By electronic magic, it will appear as if posted prior to this one!)

Supremely Polarized: Partisanship Continues to Prevail

The divided Court.

Not along legal or jurisprudential lines--although there is some of that.
Not activism versus restraint, or any disagreement about the judicial role--though some of that too.
Not strict versus loose construction, or any interpretive methodology--though some of that as well.

But along political lines.
Partisan political lines.
Democratic versus Republican Justices--other than a Republican switching sides, usually Kennedy, in some cases.

As we await the blockbusters to come--on same-sex marriage and Obamacare subsidies--consider these ideologically charged decisions already decided this term:

Alabama Legislative Black Caucus v. Alabama, upheld the claim of racial gerrymandering.
5 (Breyer [wrote Court's opinion] + Kennedy, Ginsburg, Sotomayor, Kagan) versus
4 (Scalia [wrote dissent] + Roberts, Thomas, Alito) 

Kerry v. Din, upheld the visa denial to a citizen's spouse without any judicial review.
5 (Scalia + Roberts, Kennedy, Thomas, Alito) versus
4 (Breyer + Ginsburg, Sotomayor, Kagan) 

Walker v. Texas Division, Sons of Confederate Veterans, upheld the state's refusal to allow a Confederate flag design on vanity license plates.
5 (Breyer + Thomas, Ginsburg, Sotomayor, Kagan) versus
4 (Alito + Roberts, Scalia, Kennedy) 

Brumfield v. Cain, ruled that the death penalty defendant was entitled to a mental disability hearing.
5 (Sotomayor + Kennedy, Ginsburg, Breyer, Kagan) versus
4 (Thomas + Roberts, Scalia, Alito) 

Davis v. Ayala, ruled that the death penalty defendant suffered no prejudice when trial judge permitted the prosecution--in the absence of the defense counsel--to offer race-neutral reasons for removing several jurors.
5 (Alito + Roberts, Scalia, Kennedy, Thomas) versus
4 (Sotomayor + Ginsburg, Breyer, Kagan) 

Kingsley v. Hendrickson, ruled that force used by jail officials on a pre-trial detainee must be objectively reasonable.
5 (Breyer + Kennedy, Ginsburg, Sotomayor, Kagan) versus
4 (Scalia + Roberts, Thomas, Alito)

Los Angeles v. Patel, invalidated a local law that permitted officials to search hotel guest registries without a warrant or the hotel's consent, and unannounced.
5 (Sotomayor +  Kennedy, Ginsburg, Breyer, Kagan) versus
4 (Scalia + Roberts, Thomas, Alito)

So, other than Kennedy who sometimes voted with the Democratic appointees (and Thomas, instead of Kennedy, in the Confederate flag case), the Justices--Democratic or Republican, liberal or conservative--voted along political party lines in these ideologically charged cases.
In fact, in every case, every Democratic-appointed Justice....

Point made without saying more?

(Correction: I mistakenly transposed the votes of Kennedy and Thomas in the Confederate flag case when I first posted this. It's  now corrected.)

Gay Marriage at the Court (Part 2)

In the last post, we considered the arguments against same-sex marriage. We began by listing several which we often hear, but which the lawyers supporting California's Proposition 8 and the federal Defense of Marriage Act (DOMA) certainly did not bother to make at the Supreme Court.

In this post, let's outline the arguments that the lawyers opposing Prop 8 and DOMA--i.e., the lawyers supporting same-sex marriage--did make at the Court:

Marriage is a fundamental constitutional right.
Prop 8 violates that right by denying it to same-sex couples.
DOMA violates that right by denying recognition and benefits to same-sex married couples.

Equal protection of the laws is a constitutional guarantee to all persons against discrimination.
Prop 8 and DOMA violate equal protection by discriminating against gays, lesbians, and same-sex couples when they choose to marry.

Gay Marriage at the Court

It's condemned in the Bible.
It's immoral.
It's an unnatural perversion.
It's a psychological malady.
It's a threat to traditional marriage.
It's bad for the children.
There's no right to homosexual sodomy mentioned or implied in the Constitution.
The government should not approve the homosexual lifestyle.
There's no discrimination against gays and lesbians, because they can marry members of the opposite sex just like everyone else.

None of this nonsense was argued before the Supreme Court.

No. Such nonsense--frequently mouthed on talk radio, on a certain news network by favored commentators, at right-wing political gatherings, by hate groups, and by others who should know better--was absent at the Court. There was none of that when the Court heard oral arguments in the same-sex marriage cases in March.

Such legally irrelevant, bigoted, ignorant, or otherwise less than meritorious or completely idiotic assertions were avoided like the plague. And for the obvious reason. Because they are legally irrelevant, bigoted, ignorant, or otherwise less than meritorious or completely idiotic.

The lawyers who argued at the Supreme Court in favor of the anti-gay marriage federal and state laws were far too smart and too serious to make such arguments. Far too smart and too serious to claim that such arguments are legitimate.

[Videos of the interviews with me on the same-sex marriage cases on Liz Benjamin's Capital Tonight are accessible at the end of this post.]

Part 13: Disclosure--Vin's Hypothetical Voting. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

First, a prefatory note.
Yes, I'm politically partisan (a Democrat) and ideological (pretty liberal), and I certainly have personal preferences, perspectives, and predispositions.
Just like other members of the species. Including judges.

But judging isn't about deciding cases to favor one's political party or to promote one's ideological policy preferences.

To be sure, judging isn't, can't be, and shouldn't be entirely neutral, mindless, or robotic.
Judges should--and the best of them do--have well informed and well considered understanding--i.e., views, ideas, wisdom--about the judicial role, about constitutional government, about liberty and authority and rights and responsibilities in a free society, about the rule of law, and other essential facets of governance in a republic.
And judges should--and the best of them do--inform their decisions with such understanding and wisdom.

That is far far different, however, than decisionmaking shaped by partisan bias or ideological predisposition. Unfortunately, as we have been seeing in this series, decisionmaking at the current Supreme Court--the Justices' voting--has been marked by just such partisanship and ideology.

But....on to the subject matter at hand. Yes I'm a partisan and yes I'm ideological. But that is a far different matter than how I would vote as a judge--or think I would vote if actually operating within that cauldron of the Court.

Not that I'm sure I'm right--if there is such a thing in these matters. But only that my own views of the judicial role, constitutional government, etc. (see above) would lead me to vote a particular way in these cases. And readers of New York Court Watcher are entitled to know since I've been unabashedly skewering the Justices for the way they have been voting.

So here goes. I've incorporated my own hypothetical voting into the graphs we've seen in previous posts.
First, those cases with the highly partisan-charged issues.
[And no, I didn't fix my votes to come out a certain way! This is actually how I would have voted on the issues.]

(click to enlarge)

GRAPH 1

 And the Democratic flip side.

(click to enlarge)

GRAPH 2

Yes, I would have voted in half those highly charged cases like a partisan Democrat would have voted, and half like a partisan Republican.

Part 11: A Court of Shameless Partisans. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

They're not judging; they're taking partisan sides.
They're not interpreting the law; they're choosing interpretations that fit their politics.
They're not neutral, detached arbiters of the law of the land; they're partisan politicians pushing their preferred policies.

That may sound harsh. It is.

This current Supreme Court is a disappointing, dysfunctional, dishonor to what the nation's highest Court is supposed to be. Certainly to what it has been at times in its history.
Times when it was truly the nation's most trusted and trustworthy branch. The nation's conscience. The nation's guardian of what we cherish most about our Republic. The nation's keeper and teacher of our loftiest aspirations.

No, the Court hasn't always been the ideal we were told that it was in grade school, or that the Court's own public relations touts. No, the Court has had its ups and downs in history. And we're now in one of those downs.

No real doubt about it if we're honest.

New York Court Watcher is not talk radio, and it's not FOX News. Criticism of the Court here is not any nonsense about liberal activist Justices making law instead of applying it. But neither is it about conservative Justices doing exactly the same, only in the opposite direction.

No, both conservatives and liberals on the Court are making law. Just as the Supreme Court always has and always must if it is to decide the cases about fundamental issues that have always come before it for resolution. Since the beginning of the Republic.

The denunciation here--yes, that's what it is--is about the Justices being blatant, blind or deliberate (?),  extreme, yes, shameless partisans. Both the conservatives and the liberals.

Part 10: Focus on Retired Justice Stevens. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Justice John Paul Stevens.
Now retired; he was the immediate predecessor of Justice Kagan.

His final year on the Court was 2009-2010.
That's the first of the 2-year period we've been examining in this series of posts.
So, if for nothing else but completeness, we'll look at Stevens record for that year.

He was appointed by a Republican, President Gerald Ford.
But over the years, Justice Stevens' voting became increasingly liberal.
He eventually became the leader of the liberal wing of the Court.

Stevens sympathized with the policy priorities and preferences of liberal Democrats on most issues, and his scathing dissent in Bush v. Gore was no surprise. In fact, that dissent actually mirrored others he authored condemning the rightward--and Republicanward--drift of the Court on many issues.

Let's take a quick look at his record in that final year before he retired.

(click to enlarge)

GRAPH 1

Of the 12 highly partisan-charged cases decided by the Court in the 2-year period we've been examining in this series, 7 were decided during Stevens' final year. He voted the same way a Democratic politician would be expected to vote in all but 1. That's 86%.

Part 9: Focus on Justice Kagan. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Justice Elena Kagan.
President Obama's 2nd appointee.

Neutral, non-partisan, non-ideological, disinterested, detached, moderate, and leaving policy up to the other 2 branches.

Just like the rest of the Justices.

Which means not really, not much, maybe not at all.

Justice Kagan was a member of the Court for only the latter of the two terms examined for this series of posts. But even after just one term, there is little that's ambiguous about her record. At least with regard to the partisan and ideological character of her voting.
[For earlier discussions on New York Court Watcher about Justice Kagan and her confirmation hearings, see
http://www.newyorkcourtwatcher.com/search/label/Kagan_Elena]

So, what does Kagan's record look like for that one year--her first year on the Court? Let's begin, as usual, with those highly partisan-charged cases.

(click to enlarge)

GRAPH 1

100% voting like a partisan Democratic politician would.

Part 8: Focus on Justice Sotomayor. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Justice Sonia Sotomayor.

Appointed by President Obama.

Her votes on guns? Gays? God? Immigrants? Campaign finance?

Just guess!

And you'd probably guess right.

We looked at Sotomayor's record when she was nominated and being confirmed for the Supreme Court.

We looked at her voting and her opinions as a federal appeals judge.

Republicans were insisting she was unsuitable, and even a racist, because of her "wise Latina" comment.

Democrats were insisting she was a "moderate" without an ideological bent.

She was insisting that her role as a Justice would simply be to "apply the law" and not to make law or policy.

Of course, what both the Republicans and the Democrats were saying was pure nonsense.

And what she was saying was at least as preposterous.

We discussed all of that on New York Court Watcher in a series of posts. Among other things, we examined Sotomayor's record on the 2d Circuit Court of Appeals. It was pretty revealing. Indeed, it was pretty plain for anyone willing to take a look.

And for anyone who bothered to take a look--or simply to read the discussions and look at the graphs on New York Court Watcher!--there would be no surprise with what Sotomayor's record on the Supreme Court would be.

Her record was one of a political, ideological liberal, and, of course, she voted to make law and policy just as every appellate judge does.

[For the examinations of Sotomayor's record on the 2d Circuit, see Sotomayor--Let's Put the Cards on the Table (The Good, The Bad, & The Ugly [Opinions]), June 23, 2009; (Some Common Threads in Her Opinions), June 5, 2009; (Versus Her Colleagues), June 3, 2009;(Ideological Patterns in Her Opinions), June 2, 2009; (First, Some Prefatory Comments), May 28, 2009.) See also Sotomayor--Let's Put the Cards on the Table (SS on the 2d Amendment), Aug. 4, 2009.

For discussions of her confirmation hearings, see Sotomayor--Let's Put the Cards on the Table (Judiciary Committee Appoves the Dreadful Success), July 30, 2009: (More on the Dreadful Success: SS on Judging), July 20, 2009; (A Dreadful Success at the Hearings), July 19, 2009.]

So let's look at Sotomayor's record at the Supreme Court. Just as we have for the other members of the Court we've already focused on in this series.

As I've previously suggested: no surprise.

Part 7: Focus on Justice Alito. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Justice Samuel Alito.
The 2nd appointee of President Bush the Younger.

We looked at his record 2 years ago in a series of posts: "Alito's Goat--What Gets It?" Specifically, we looked at his dissents. We looked to see what majority decisions bothered him enough that he was moved to expend his time, effort, and collegial capital to author public disagreements, cum complaints, about a rulings of his Court.
[See Justice Alito's Goat--What Gets It? (Part 1), Feb 6, 2010; (Part 2: His Dissents), Feb. 22, 2010; (Part 3: Connecting the Dots), Feb. 28, 2010; (Part 4: One Last Thing), Mar. 27, 2010.]


Now let's look at Alito's record the way we've been looking at other Justices' records in this series. Looking at how partisan his voting has been. How ideological. How activist.


And as we have done with the others, let's look at Alito's numbers. Look at them in graphs that permit easy comparison with those of the other Justices, and then briefly discuss what lies beneath the numbers.


Here is how Alito's voting looks in those highly partisan-charged cases. 

(click to enlarge)

GRAPH 1

92% voting like a partisan conservative Republican politician in the highly charged cases. That places Alito's record in the same extremely partisan class as that of all the Justices we've previously focused on, except for Kennedy. (N.B., we have yet to look at the records of Justices Sotomayor and Kagan.)

Part 6: Focus on Chief Justice Roberts. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Now for the Chief.
John G. Roberts.
The "umpire." That's what he insisted a Justice should be during his confirmation hearings.

Yes, deciding cases by simply applying the rules and policies set by others. Others like the Legislative and Executive Branches and by the states. Pretty mechanistic. Is it a ball or a strike? Is the runner safe or out?

It's all a matter of the rules and policies already established by others. Not by the Justices. Objective, neutral, detached decision-making. Not according to the Justices' own preferences or views or politics.

OK. So let's look at the numbers for Chief Justice Roberts. The very same data and analyses we've used in the previous posts in this series for other members of the Court. And we'll look at that data in a same set of graphs. In fact, let's do that at the start and discuss later.

Here's the graph depicting Roberts' voting record in those very highly partisan-charged cases.

(click to enlarge)
GRAPH 1

So he voted in 92% of the highly charged cases like a partisan, conservative Republican politician would.

Part 5: Focus on Justice Breyer. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Let's turn to Justice Stephen Breyer.

President Clinton's 2d appointee--the 1st being Justice Ginsburg.
And the next longest serving member of the Court--following Scalia, Kennedy, Thomas, and Ginsburg, all of whom have been the subject of one of the previous posts in this series on New York Court Watcher.
[See Supreme Court: How Partisan? Ideological? Activist? (Part 1: Focus on Scalia) --with graphs!, May 1, 2012; Part 2: Focus on Justice Kennedy, May 3, 2012; Part 3: Focus on Justice Thomas, May 6, 2012; Part 4: Focus on Justice Ginsburg, May 10, 2010.]

Let's look at his record the same way we've looked at theirs. So what is it?

What about his voting in those highly partisan-charged cases? You know, the ones involving guns, gays, immigrants, campaign finance, and other issues with deep partisan divides. Take a look.

(click to enlarge)

GRAPH 1

Hmm. Just as one-sided as Ginsburg's, Scalia's, and Thomas's. Identical to Ginsburg's record. 100% partisan liberal Democratic.

That is, Breyer voted in every one of these very highly charged cases just the way Ginsburg did. He voted exactly the way we would expect a very partisan liberal Democratic politician to vote.

Part 4: Focus on Justice Ginsburg. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

And now for Justice Ruth Bader Ginsburg.
The same questions.
Her record: how partisan? ideological? activist?

As with Justices Scalia and Thomas in previous posts in this series, the questions are not about whether, or how much, you--or I--might happen to like the results Ginsburg supported with her votes. [This is mostly directed to my dear liberal friends.] The questions are not about whether you--or I--might prefer the liberal positions she usually takes to the conservative ones that Scalia and Thomas usually do.

No.
Instead, the questions, as they were with Scalia and Thomas (and don't forget Kennedy), are:
How closely does Ginsburg's voting record mirror that which we would expect from partisan politicians--whether conservative Republican politicians or liberal Democratic ones--on those most highly partisan-charged issues?
How politically conservative or liberal is her voting record across the broad swath of ideologically-laden issues?
How judicially activist or restrained is her record?

Well, [And again, this is mostly directed to my dear liberal friends.] brace yourselves.

How partisan her record?
Take a look.

(click to enlarge)

GRAPH 1

100% partisan, that how much!

Part 3: Focus on Justice Thomas. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

In previous posts, we looked at the voting patterns of Justices Scalia and Kennedy. We also compared them to each other, as well as to the decisional patterns of the Court as a whole.

(See Supreme Court: How Partisan? Ideological? Activist? (Part 1: Focus on Scalia) --with graphs!, May 1, 2012; Part 2: Focus on Justice Kennedy, May 3, 2012.)

Now let's take a look at Justice Clarence Thomas's record.
[As stated in part 1, the several posts to appear in this series are based on my research over the past few weeks. The pool of cases on which my findings are based is again explained at the end of today's post.]

We'll again begin our look with those cases that dealt with the very highly partisan-charged issues.

(click to enlarge)

GRAPH 1

Like Scalia, Thomas voted in every one of those cases the way a conservative Republican politician would have. Yes, 100%. Like Scalia, he didn't once oppose the position that would be favored by conservative Republican senators, congresspersons, or other politicians in these very partisan-charged cases. In short, his voting record mirrors that of the most partisan Republicans.