Imperial Judiciary or Least Dangerous Branch?

• What is judicial review? • Can the Appeal and Circuit courts exercise judicial review? • Are there any constitutional limits on judicial review? • Can congress or president overturn ruling with 2/3rds vote? 3/4ths votes? • Does it happen very often? Why? How does a case get to the Supreme Court?

• What procedure do judges use? • What happens if Supreme Court does not hear a case? • Why do the justices agree to hear one case and not another? • How much discretion do they have? • What are “political questions”? How the Court Decides

• Oral argument • Conference • Opinion writing • Forming a majority • Brown v. Board of Education • What are you doing for Lunch • Call me a second rate intellect will you • Dissents and concurring opinions “The Supreme Court Nomination Process is Broken” Nominating SC Justices

• President’s most important decision • Eisenhower - "I made two mistakes, and both of them are sitting on the Supreme Court." referring to Earl Warren and William Brennan, Jr., outspoken supporters of civil rights. 1967 appointment of Thurgood Marshall

• Could Marshall name the committee behind the 14th Amendment and identify its members? • What legal basis did supporters of the Civil Rights Act of 1866 rely upon? • What did a 19th-century congressman see as difficulties “in congressional enforcement of the privileges and immunity of article IV, section 2, through the necessary and proper clauses of article I, section 8?” • Strom Thurmond (SC D 1954-64/ R65- 2003) Dixiecrat • 1968 Presidential election- Nixon’s Southern Strategy 1968 Chief Justice Abe Fortas to replace Earl Warren

• Represented LBJ in 1948 Democratic Primary • Appointed by LBJ to Supreme Court in 1965 • Close relationship to LBJ • Big liberal • Strom Thurmond • Corporate lecture scandal • Flaming Creatures Film • Senate Filibuster- 45-43 to proceed, Fortas withdraws Nixon Appointees

• Haynsworth - 4th Circuit Appellate Judge • Anti union and school desegregation rulings • Fails to recuse on case involving a company he owns stock in. • Democrats vote No 55-45 • Harold Carswell • 1948 speech in Assembly election- “Segregation of the races is proper and the only practical and correct way of life in our states. I have always so believed, and I shall al ways so act.” • Senator- Even if he is mediocre, there are a lot of mediocre judges and people and , and they are entitled to a little representation, aren't they?" • Henry Blackmun – lifelong GOP • authors Roe v. Wade, passionate defender of abortion rights

• Fun fact- In 1976, Carswell fined $100 for making homosexual advances to an undercover Tallahassee Clement Haynsworth and G. Harrold Carswell police officer in a men's room at a shopping mall. Justice Lewis F. Powell Jr.- Mr Swing Vote 1987 Robert Bork, Conservative Legal Intellectual

• Prominent Yale Law Professor • Original intent • "We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own." • Solicitor General for President Nixon • Mr. Saturday Night Massacre • Long conservative paper trail • DC Court of Appeals Judge 1982-88, unanimously approved by Senate Bork’s Lengthy Legal History

• Making sterilization a policy for a job didn’t violate the Occupational Safety and Health Act. • Government-sponsored school prayer did not violate the First Amendment; re Jewish friend who had been required to engage in Christian prayer in a public school, “So what? I’m sure he got over it.” • On VA poll tax that had been struck down by the Court in 1966, saying, “It was a very small tax, it was not discriminatory, and I doubt that it had much impact on the welfare of the nation one way or the other.” • Opposed Court’s ruling against the use of literacy tests in voting. • 1st Amendment only covers political speech • No right to privacy • https://www.youtube.com/watch?v=NpFe10lkF3Y https://www.vox.com/2018/9/26/17896126/bork-kavanaugh- supreme-court-conservatives-republicans Bork gets “Borked”

• Senator Kennedy-Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only— protector of the individual rights that are the heart of our democracy • Bork- “It would be an intellectual feast.” Dour and humorless • People for the American Way mailings and TV • Rejected by Senate 58-42, (6 Rs vote no) Robert Bork, Reagan Supreme Ct nominee, 1987 • To Bork- "to defame or vilify a person systematically." Judge Douglas H. Ginsburg

• Chief Justice DC Court of Appeals • Professor • Nina Totenberg, NPR reporter interviewed "at least a half dozen of his friends and colleagues who saw him smoking marijuana when he was a professor at Harvard Law School in the 1970s and perhaps in the early 1980s. He on occasion brought the marijuana." • Sen. Charles Grassley (R-Iowa), "You like to think people who are appointed to theSupreme Court respect the law." And on his third attempt, Reagan nominates….

Clarence Thomas for Thurgood Marshall

• Poor kid from Pin Point, GA • The kabuki dance of “advice and consent” • Clarence Thomas- I have never thought about Roe v. Wade. If I did though, I wouldn’t tell you. • Anita Hill Sexual Harassment • "Did you ever use the term Long Dong Silver in conversation with Professor Hill?“ Senator Hatch

Sonya Sotomayor to replace David Souter

• No paper trail, Big liberal • Nominated to district court by George Bush, 11 years as Appellate Judge • Compelling personal story • On Abortion Rights questioning- "I can't answer your hypothetical, because I can't look at it as an abstract without knowing what state laws exist on this issue.“ • "I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion than a white male who hasn't lived that life.” • NRA counts Supreme Court vote for its ratings for the first time Well Respected Liberal/Conservative Jurists

John Roberts Ruth Bader Ginsberg

John Roberts Harvard Law, Clerk for Rehnquist, 1st in class from Columbia Law, daughter of Russian Reagan AG office, Bush White House Counsel, DC Jewish immigrants, founder of Women's Rights Project, Court of Appeals general counsel of ACLU, Carter appointee to DC Court of Appeals WSJ- Kaganing "If you turn the photo upside down, reverse the pixilation and simultaneously listen to Abbey Road backwards, while reading Roland Barthes, you will indeed find a very subtle hidden message," said Journal spokeswoman Ashley Huston. GOP appoints Catholics

• 20% of public, 5-6 members of Supreme Court Democrats appoint Women, Latinx

Different Partisan Judicial Strategies

• GOP Judicial Ideological Strategy At least a bipartisan consensus on Supreme Court Nominees Ideological Balance

Martin Quinn Scores- Measuring the relative location of U.S. Supreme Court justices on an ideological continuum Supreme Court May Be Most Conservative in Modern History By NATE SILVER, March 2012 Median Justice Theory

April 9, 2012 New Yorker NYT, Jan 31, 2009

It’s the Kennedy Court

Appointed by President Reagan

Infowars CLOCKWISE FROM TOP LEFT: Judges Merrick B. Garland, Jane L. Kelly, Paul J. Watford, Patricia Ann Millett, and . (CLOCKWISE FROM TOP LEFT: AP Photo/Charles DharapakLiz Martin/The Gazette via The APBill Clark/Getty ImagesAP Photo/Manuel Balce CenetaReutersU.S. District Court for the District of Columbia) Sri Srinivasan

• Deputy Solicitor General of the under Bush • Senate confirmed Srinivasan by a vote of 97–0 in 2013 to DC Appellate Court • Clerked Justice O’Connor • Played high school bball w/ NBA star • Born in , First Indian-American • 51 years old

• Harvard Law School • Clerked for Henry Friendly and William Brennan • Federal prosecutor OKC bombing and Unabomber • 18 years as chief judge of the U.S. Court of Appeals for the

District of Columbia Circuit Senator Hatch said: "The President told me several times he is going to • 64 years old name a moderate, but I do not believe him. [...] [Obama] could easily name Merrick Garland, who is a fine man. He probably will not do that because this appointment is about the election. So I am pretty sure he will name someone the [liberal Democratic base] wants.“ 5 days before Obama nominates him

Poor Merrick Garland

• American Bar Association

• “exceptional intellect, industry, and superior work ethic” and his “reputation for being one of the hardest working and best prepared judges on the D.C. Circuit.” • “He is known among the bar and his colleagues for his preparedness at oral argument and the incisiveness of his questioning. Judge Garland is considered a model , judge and person, who should be emulated” “well qualified” rating

American Bar Association: Garland 'well qualified' for Supreme Court http://www.politico.com/story/2016/06/merrick-garland-american-bar-association- 224593 'About A Principle, Not A Person'

• Majority Leader Mitch McConnell • "It is a president's constitutional right to nominate a Supreme Court justice, and it is the Senate's constitutional right to act as a check on a president and withhold its consent," • "I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president," • "The American people are perfectly capable of having their say on this issue, so let's give them a voice. Let's let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be." https://www.npr.org/2016/03/16/470664561/mcconnell- blocking-supreme-court-nomination-about-a-principle-not-a- person Why Merrick Garland wasn’t confirmed

“Senate Republicans: All Obama Judges Are Bad,” Democrats Go Nuclear • Remember Asymmetric Polarization

Steven Smith “Senate syndrome”- but they did it • “It’s a sad day in the history of the Senate,” McConnell told reporters, calling the move a Democratic “power grab.” • “Democrats won’t be in power in perpetuity,” said Sen. Richard C. Shelby (Ala.), a 27-year member. “This is a mistake — a big one for the long run. Maybe not for the short run. Short-term gains, but I think it changes the Senate tremendously in a bad way.” THANKS, OBAMA: TRUMP GIVES BARRY A SHOUTOUT FOR LEAVING SO MANY JUDICIAL SEATS OPEN

• “You know when I got in we had over 100 federal judges that weren’t appointed,” the President said, querying “I don’t know why Obama left that, it was like a big beautiful president he left all of us. Why the hell did he leave that? Maybe he got complacent.” • “Now we have about 145 federal district judges, we have 17 court of appeals judges, and we have the one supreme court justice,” Trump said, adding “We were left a present..it was like a gift from heaven…amazing, it was a gift, thank you very much President Obama” • President Trump, https://www.brookings.edu/blog/fixgov/2018/06/04/senate- obstructionism-handed-judicial-vacancies-to-trump/ Was Going Nuclear a Mistake?

Senate Republicans Deploy ‘Nuclear Option’ to Clear Path for Gorsuch

• https://www.nytimes.com/2017 /04/06/us/politics/neil-gorsuch- supreme-court-senate.html • “They did it first.” • Future of Presidential Appointments? • If he/she has majority in Senate? • If minority in Senate?

How would Kavanaugh for Kennedy Switch Matter? • How would Democrats respond? Pro Con • https://www.youtube.com/watc • https://www.youtube.com/watc h?v=7-cFTTTc-l4 h?v=ZLgsQx3S9AI • https://judicialnetwork.com/in- • https://www.realclearpolitics.co the-news/jcn-launches-6-figure- m/video/2018/10/01/aclu_ad_k ad-buy-in-maine-thanking-sen- avanaugh_like_clinton_cosby_w susan-collins/ einstein.html

“from 1790 to the present, the Senate has confirmed 91 percent of the 129 Supreme Court nominees it has considered. In the last 60 years, the Senate has confirmed 89 percent of the 28 Supreme Court nominees it has considered.”

The Appointment Clause, contained in Article II, Section 2, reads: “The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.

• https://www.whitehouse.gov/scotus Problems

• Tenure – Stay Alive • 1789-1970- 15 years • 1970+ 26.1 years • no vacancies on the high Court from 1994 to the middle of 2005 • Carter – 0 appointees • Clinton, Bush W, Obama 2 appointees, same as Trump • Optimal Judicial Strategy?

• Stakes too high/Random democratic = bloodsport politics

Pre 2016 Election • “A Court that strikes down a Medicare For All insurance system, or legislation establishing equal funding for public education, or that chips away at abortion rights, gay rights, and other issues that are now supported clearly by a majority of the public will create a profound crisis in American society of the likes that we haven’t seen since the Great Depression.” Jacobin “It’s Time To Fight Dirty,” David Faris

• End lifetime tenure for the federal judiciary/18 year term limit • Allows the president to appoint a justice in the first and third year of his term of office • Increases the number of justices on the Supreme Court to 11 or 13, “depending on how many justices President Trump ends up appointing.”

• Rick Perry- 18 year terms • Ted Cruz, Retention elections Breyer, Active Liberty Scalia, Textualism/Original Intent Active Liberty Original Intent • Constitution and Bill or rights • judges should stick as closely to does embody certain Constitution’s text and original substantive value choices meaning as possible • Living Constitution: Meaning of • detracts from self government constitution must evolve to fit • Doctrine of Original Intent the spirit of the age (Meaning): judges should attempt to determine what the Framers • Interpretivism intended the provision to mean. • Textualism U.S. Constitution - Article 1 Section 9

• The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. Guantanamo Bay

• Court as Counter Majoritarian Institution “The worst of the worst”? • Hamdi v. Rumsfeld and Rasul v. Bush • -combatants are entitled to some neutral adjudicatory process • Congress • Detainee Treatment Act Detainee Treatment Act (2005)

• no court, justice, or judge shall have jurisdiction to hear or consider--

`(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or

`(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba • Scalia- "Do you have a single case in the 220 years of our country or, for that matter, in the five centuries of the English empire in which habeas was granted to an alien in a territory that was not under the sovereign control of either the United States or England?" Military Commissions Act (2006)

• unlawful enemy combatant- determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense." • forbid explicitly the invocation of the Geneva Conventions • Establishes alternative judicial procedures Boumediene v. Bush and Al Odah v. United States (2008) • Justice Kennedy writes the 5-4 majority • prisoners had a right to the habeas corpus under the United States Constitution and that the MCA was an unconstitutional suspension of that right. • Kennedy “to hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, 'say what the law is‘” Scalia’ Dissent

• MCA provides habeas corpus guarantees • "how to handle enemy prisoners in this war will ultimately lie with the branch [the judiciary] that knows least about the national security concerns that the subject entails." • “Guantanamo Bay lies outside the sovereign territory of the United States." Dissents

• Roberts –MCA is "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." • Scalia - "will almost certainly cause more Americans to be killed." Limits on Judicial Review

• Are Self Imposed • Judicious use of power • Refuses to get involved in “Political questions” • Delays rulings till controversy dies down • Roche-- “The court’s power has been maintained by a wise refusal to employ it in unequal combat” Roe v. Wade

• [N]or shall any State deprive any person of life, liberty, or property, without due process of law • = • Right to privacy

• a woman's decision to have an abortion, but that this right must be balanced against the state's two legitimate interests in regulating abortions: protecting women's health What are the conditions under which Court and protecting the potentiality of decision on behalf of relatively powerless human life groups are more or less likely to be implemented?

Conclusion

• the least dangerous branch or an imperial judiciary? • The Tom Delay view • No matther whether th' constitution follows h' flag or not, th' Supreme Coort follows th' election returns” Finley Peter Dunne (1867-1936) • But . . . • a government of limited powers • a written constitution • the court exercises a good deal of restraint • possible to impeach judges