What Four More Years of Obama Means for the Supreme Court
The question that Cutlass poses, and that John takes a stab at below, is indeed tricky. As to retirements, I doubt very much that Justice Ginsburg will choose to serve for five more years if a Republican is elected, so the first replacement may well come from the liberal side of the court. More importantly perhaps is the condition of the Senate. There are many more Democrats at risk than Republicans. The sweep of 2006 has now run its senatorial course. If the Republicans get to 50, they will not have to filibuster. If they stay above 40 they might. Either way the bargaining game is a bit more complex so that we should see a centrist democrat as the likely compromise. It could be come still more complicated if the Republicans control the Senate and two seats are vacant. In a sense I am quite fearful of all this, for the polarization of American politics makes compromise choices on the Supreme Court hard to come by. My own view more generally is that the demise of the conservative Democratic Leadership Conference in national politics has lead to the ever strong division of sentiment. That will surely play into all this.
If it turns out that the liberals wrest control of the Supreme Court it is clear to me that the modest limitations on federal power embodied in such cases as Lopez (which, it must be stressed, paid homage to Wickard v. Filburn) are all doomed. There will be some movement on the key issues of federalism and individual economic and property rights. But the legal position is so hopeless today that there will not be all that much. My sense is that the greater danger lies in matters of statutory construction, dealing with such hot button issues as class actions, labor unions, employment discrimination and environmental law, where the differences are substantial.
As to the relative merits, my take is simple. As I get older, I have come to think that the Progressive movement of the 1930s represents the worst in American history. Take 1938: the Civil Aeronautics Act, the Ajdustment Act, the Fair Labor Standards Act, all with us today. If this were wine, we would call it a very bad year, but at least the bottles would be spoiled or polished off some 73 years later. But these laws continue to hang on, and for no good reason.
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Oct '10
Re: What Four More Years of Obama Means for the Supreme Court
Richard Epstein
I'm not a lawyer, but as I understand it, the idea that the Constitution is 'living' and can be interpreted away has been in fashion since the 1920s. I believe Justice Scalia, testifying before Congress a few years ago, asked Congress to refrain from attempting to legally reform the Court, arguing that the judiciary could reform itself. Since most of our our law schools seem to be teaching law students to interpret the Constitution according to 'progressive' principles and have been for decades, is it perhaps time to submit would-be legislators-in-robes to the accountability of actual legislators; i.e. to periodic (6-8 year) elections.
May '10
Re: What Four More Years of Obama Means for the Supreme Court
Regarding the leftward tilt of law schools (and the legal profession generally): hasn't there been some progress? (Not progressive progress, mind you.)
I recall an interview--maybe it was with Scalia himself--where it was pointed out that, 20 years ago, originalism was utterly discredited at top law schools; nowadays, each top law school feels itself obligated to have one originalist on the faculty.
Or maybe I got that wrong.
May '10
Re: What Four More Years of Obama Means for the Supreme Court
"As to the relative merits, my take is simple. As I get older, I have come to think that the Progressive movement of the 1930s represents the worst in American history."
Boy, I hate to keep playing the part of Little Miss Sunshine (a role I'm uncomfortable with, for several reasons) but, considering what some other countries went through in that decade, we come off looking pretty well.
Sep '11
Re: What Four More Years of Obama Means for the Supreme Court
Okay, I'll bite.
What is particularly bad about the Civil Aeronautics Act?
(Is this the legal genesis of the TSA's power to commit involuntary deviant sex acts on women being transported across state lines?)
Dec '10
Re: What Four More Years of Obama Means for the Supreme Court
I will reprise my comment to Mr. Yoo's similar piece. This is a no brainer. NO SECOND TERM FOR PRESIDENT ZERO! And just to be safe. NO HARRY REID AS SENATE MAJORITY LEADER TO FOUL UP THE CONFIRMATION PROCESS! Have a good and sweet year Dr. Epstein.