While I would agree liberal and conservative are too simple labels for this, this is simply not true. There is a more liberal wing of 4, and a more conservative wing of 4, and one swing justice in the middle. But what you are ignoring is the dramatic shift to the right of the overall stance of the court. The swing justice, Kennedy, would have been a conservative justice in the past. Hell, some of the “liberal” justices would have looked reactionary in earlier courts.
The very dynamic of the court sets it up to have a certain balance between two wings. But that doesn’t mean the entire kit and caboodle can’t shift in one direction or another, and the 4-4-1 dynamic not continue.
You have to accept ideologies as being relative. You can argue that the court has moved to the right as a whole. But you can also argue that it’s moved to the left as a whole. No justice today would support an idea like “seperate but equal” but it was considered constitutional within the lifetime of some of the people reading this thread.
I disagree. The current balance is, after all, only about three years old. Prior to that, you had a court with four “liberals” (Breyer, Ginsburg, Souter, and Stevens), three “conservatives” (Rehnquist, Scalia, and Thomas), and two swing votes (Kennedy and O’Connor). That meant the liberal wing only had to convince Kennedy or O’Connor to join them in order to have a majority, while the conservative wing needed to convince both of them in order to have a majority. So there was not a balance between the two wings.
Fascinating to me too. As is your Scalia anecdote*.
For many reasons I breathed a sigh of relief over the Obama win, but most of all for the possibility of securing at least the status quo in the SCOTUS.
But I’ve always had an interest in the inner workings of the Court and you clearly have a deep interest and knowledge. Can you provide some advice? What book(s) would you recommend for an engaging read? I saw The Nine (Toobin) at an airport bookstore recently and almost bought it, but then my inner cynicism rose up to say to me “if it is in an airport bookstore it can’t be all that good.”
*As an aside, I remember watching a television show many years ago where a panel of people discussed the various sides of a particular situation. I think the focus was on ethics? Scalia was always the most interesting member of the panel. Anyone else remember this show? What was it?
We watched it in class a few times - one of the panellists was Jim Neal, a Nashville attorney for whom I amost worked one summer. I cannot for the life of me remember the name of the show.
I think my point is, prior to Rehnquist/O’Connor leaving, Kennedy wasn’t really a swing vote in the same way. He was pretty solidly in the conservative camp on most issues.
I also think we would both agree that it is only on a pretty small number of cases that the Court breaks like this, anyway.
Ah, Gore v. Bush in 2000 told me all I need to know about the conservative wing of the court — a bunch of partisan hacks. We need honest justices to counterbalance them.
I agree with villa about Kennedy. He’s only become the centrist swing vote in recent years, and it’s happened less because his own jurisdprudence has changed and more because the center of gravity of the Court has shifted around him.
Algernon:
I haven’t read The Nine, but I’ve heard decent things. Supreme Conflict by Jan Crawford Greenburg is pretty good, as is Closed Chambers by Edward Lazarus (the latter is a bit dishy).
Going a little further back, I strongly recommend The Burger Court by Bernard Schwartz, as well as his The Unpublished Opinions of the Rehnquist Court. The Center Holds by James Simon is also about the Rehnquist Court and is also decent. Simple Justice by Richard Kluger is only about Brown v. Board of Education, but it’s a great book and sheds a lot of light on the Supreme Court at the time. And The Justice from Beacon Hill is a biography of Oliver Wendell Holmes that delves pretty deeply into the Court’s decision-making process while he was there.
Oh, and if you ever hear anyone go off on FDR’s court-packing plan and how it intimidated the justices on the Court into going along with the New Deal, don’t believe them: Rethinking the New Deal Court by Barry Cushman makes a compelling argument that the jurisprudential shift in the Court occurred more gradually and organically as several justices (particularly Owen Roberts) began to abandon the legal formalism – and specifically an artificial and often arbitrary distinction between “public” and “private” in evaluating the constitutionality of a congressional act – that had led prior Courts to go hogwild in striking down legislation. (In fact, the decision that is popularly credited as being evidence of the Supreme Court’s “switch-in-time” had already been drafted before FDR contrived his plan to expand the membership of the Court.)
That’s it for now. Cushman’s book is a little dry and academic (albeit readable), and most of the rest of the recommendations I could offer would be even more so, which probably isn’t what you want.
Side note: I don’t think any President will ever appoint Amar. He doesn’t have the temperament. There’s a reason he didn’t clerk for SCOTUS, and it wasn’t his academic performance.
A further point: In some ways, Thomas is actually far, far more conservative than Scalia. For a recent example, read his concurrence in Morse v. Frederick - the whole thing is his argument that we should reverse Tinker (the case that established student-speech rights). And it’s persuasive!
I disagree with the fellow, but Clarence Thomas is very good at what he does.
I disagree that Justice Thomas is good at being a justice. His intelligence and writing are not the problem. The problem is his views are so radical. He has not written any of the really important decisions because he cannot get enough of the other justices to sign on. He is stuck writing concurrences in the important cases when he is the majority.
The mark of a good justice is to pull the court to his viewpoint–like Warren, O’Connor, Brennan or the master, John Marshall.
I think there’s some merit to both of your positions. I admire Thomas for his doctrinal consistency (I can’t say the same about Scalia) and intellectual honesty, and I don’t think he’s been a failure as a Supreme Court justice.
That being said, it’s certainly true that his doctrinal consistency makes it difficult for him to rally other justices around to his positions, which means that he seldom has the opportunity to truly shape the Court’s jurisprudence the way a truly effective justice would. (Though, to be fair, O’Connor managed to do this mostly by finding the narrowest possible holding – containing language that was as unobjectionable as possible to a majority of the Court – and sticking to it, which means that the breadth of the substantive effect of her opinions was less than it could have been.)
And I also confess that I have problems with Thomas in a number of other areas: I really do think that he was spectacularly underqualified to be put on the Court at the time of his nomination, at least from the standpoint of having built up a body of work sufficient to allow people to evaluate his intellectual rigor, the depth of his understanding of fundamental constitutional principles and precedent, and the clarity and incisiveness of his analytics. I also think that the Anita Hill thing raised some character issues, although I don’t think that those issues (even if you assume the full truth of Hill’s allegations) should necessarily have disqualified him from being a justice. I’m more troubled by his testimony about not ever having discussed Roe with classmates at the time it was decided, because it either means that he is (or at least was, as a law student) intellectually incurious in a way that I don’t really want to see out of a Supreme Court justice, or else he flatly lied to the Senate. And finally, the fact that he habitually dozes through oral arguments is problematic to me, at least on an aesthetic level. While I understand the defenses people give for his doing that, I still think it’s unseemly. That’s probably more a matter of taste, though, and doesn’t necessarily speak to his competence as a justice.
Thomas’s dozing is most assuredly not figurative, and I’ve never heard anything to suggest that Ginsburg is asleep during oral argument more often than Thomas is.
Cushman’s book is a little dry and academic (albeit readable), and most of the rest of the recommendations I could offer would be even more so, which probably isn’t what you want.
Thanks for the suggestions. I really appreciate it. I’ll do some research.