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​ 🏛️ ​Official Supreme Court nomination thread - Amy Coney Barrett (4 Viewers)

If/when Kennedy retires, I look forward to jon_mx's arguments in favor of a moderate judge who often sides with the liberals as his replacement.  In order to keep the balance of the court, as he's so often declared was of upmost importance.  

 
Thanks Bernie and Pelosi! 

Ego, ideology and party above 1-2 generation of peoples well being.

Well played Dems.  

 
CletiusMaximus said:
I think that's one take. But also worth noting there were only four 5-4 cases so far this term.

In 3 of them (Pena-Rodriguez, Moore, McWilliams), the majority was Kennedy, Ginsburg, Breyer, Sotomayor, Kagan.

In the other (Harris), the majority was Thomas, Ginsburg, Breyer, Sotomayor, Kagan.
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Yup. Kagan has been in the majority just as much (basically) and she isn't perceived as a swing justice. 

 
Koya said:
Yes. Establishment Dems have been a selfish disaster for this country, all but ceding power to the ideologically driven, fall in line righties, in the process.
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Ah, so you're a Tea Party Democrat. Even San Francisco liberals like Pelosi aren't good enough. 

Have fun in fantasy land. Must be nice.

 
thecatch said:
Yup. Kagan has been in the majority just as much (basically) and she isn't perceived as a swing justice. 
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Based on the current term (without Scalia and with Gorsuch joining very late in the term), one could just as easily argue that Clarence Thomas is the "swing justice" which of course is ridiculous. For that matter, I'm certain 99.9% of this board and the general population knows nothing about the 4 cases which were decided 5-4 this past term.  As usual, I'll beat the same dead horse I always beat in this discussion - that the issue of supreme court nominations is consistently, massively blown out of proportion every time it comes up. As politically important as we all seem to want to make it, the reality it it matters not.

 
The idea that the court needed a Conservative to fill Scalias seat or a moderate/flip-flopper to fill Kennedys seat is as ludicrous now as it was when all those Republicans/Conservatives were crying about it when Scalia died.  Actions have consequences.....and to be fair to Trump, he picked a good candidate the first time.

 
CletiusMaximus said:
Based on the current term (without Scalia and with Gorsuch joining very late in the term), one could just as easily argue that Clarence Thomas is the "swing justice" which of course is ridiculous. For that matter, I'm certain 99.9% of this board and the general population knows nothing about the 4 cases which were decided 5-4 this past term.  As usual, I'll beat the same dead horse I always beat in this discussion - that the issue of supreme court nominations is consistently, massively blown out of proportion every time it comes up. As politically important as we all seem to want to make it, the reality it it matters not.
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I wouldn't go quite that far, but I agree wholeheartedly that people make the court out to be more than it is.  For example, I can't quite wrap my mind around someone -- and there were lots of folks like this -- who voted for Trump just because of the court.  If you think one or two SCOTUS seats really outweigh all the damage that Trump is doing otherwise, you're just assigning way too much weight to the court in your calculations.  

 
IvanKaramazov said:
I wouldn't go quite that far, but I agree wholeheartedly that people make the court out to be more than it is.  For example, I can't quite wrap my mind around someone -- and there were lots of folks like this -- who voted for Trump just because of the court.  If you think one or two SCOTUS seats really outweigh all the damage that Trump is doing otherwise, you're just assigning way too much weight to the court in your calculations.  
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Roe v Wade is that important to some.

 
What I'm most concerned with is voting rights. They already gutted the voting rights act. More provisions could be struck down.

 
CletiusMaximus said:
Based on the current term (without Scalia and with Gorsuch joining very late in the term), one could just as easily argue that Clarence Thomas is the "swing justice" which of course is ridiculous. For that matter, I'm certain 99.9% of this board and the general population knows nothing about the 4 cases which were decided 5-4 this past term.  As usual, I'll beat the same dead horse I always beat in this discussion - that the issue of supreme court nominations is consistently, massively blown out of proportion every time it comes up. As politically important as we all seem to want to make it, the reality it it matters not.
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You bring in some interesting data, and maybe 99% of the cases the politics are a minor role.  But it is those one percent that highlight our difference in the values of left vs. right that get all the press and shape key laws.  Those handful of cases which significantly impact topics like free speech, elections, religious freedom, property rights, gay rights, immigration which can have a bigger influence in policy than who is president.  Eight years of Obama and about the only significant law was Obamacare.  The court has a much larger impact on our laws during that time.  

 
Perhaps I'm just a layman, but it doesn't seem like the Supreme Court is the least dangerous branch at all. If anything, it interprets anything controversial between the branches and sets the constitutional parameters for legislation. Obamacare doesn't exist if not for a generous reading of statutory construction.  

If anything, it's the most weaponized branch of government given the checks and balances of the other branches. 

 
jon_mx said:
You bring in some interesting data, and maybe 99% of the cases the politics are a minor role.  But it is those one percent that highlight our difference in the values of left vs. right that get all the press and shape key laws.  Those handful of cases which significantly impact topics like free speech, elections, religious freedom, property rights, gay rights, immigration which can have a bigger influence in policy than who is president.  Eight years of Obama and about the only significant law was Obamacare.  The court has a much larger impact on our laws during that time.  
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I've got no interest in derailing the lively discussion in here, but I've always maintained the actual importance of cases like Citizens United, Heller, the eminent domain cases, the affirmative action cases, gay rights and others - in terms of our day-to-day - is massively overstated by the media and the parties and others who benefit from the perception of a great divide. Its a huge cash cow for them, so no surprise.

 
The internet privacy thing could be a potential SCOTUS decision. I wonder what a conservative court would rule. 

 
tommyGunZ said:
Ah, so you're a Tea Party Democrat. Even San Francisco liberals like Pelosi aren't good enough. 

Have fun in fantasy land. Must be nice.
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I'm a left leaning libertarian who has been generally forced to choose from the lesser of two evils - and, especially recently, that's Dems by a long shot, significant differences aside. 

The looney right is far stronger, more unified, and dangerous so even a decision I don't love has generally been an easy one to make at the polls.

 
CletiusMaximus said:
I've got no interest in derailing the lively discussion in here, but I've always maintained the actual importance of cases like Citizens United, Heller, the eminent domain cases, the affirmative action cases, gay rights and others - in terms of our day-to-day - is massively overstated by the media and the parties and others who benefit from the perception of a great divide. Its a huge cash cow for them, so no surprise.
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There is merit to that POV.  And perhaps you could extend that line of thinking to the other branches of government.  

 
squistion said:
Nate Silver‏ @NateSilver538 10m10 minutes ago

Neil Gorsuch has been Scalia 2.0 so far. He's voted with Thomas 100% of the time and Alito 93% of the time.

Gorsuch is almost certainly the biggest "win" so far for Trump and for Republicans. An unmitigated success for them.

https://fivethirtyeight.com/features/neil-gorsuch-is-paying-off-for-trump-so-far/
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An unmitigated success for conservative Republicans. Not for Trump, IMO.

Based what I have read about Donald Trump's attitude towards the Court, he only cares if the judges are on "his side". Minor issues like constitutional principles don't matter to him.

Gorsuch is certainly a conservative judge along the lines of Scalia, but there is no reason to think he is unprincipled or willing to overlook the Constitution. Sooner or later he's bound to reach a decision that President Trump does not agree with.

 
Koya said:
I'm a left leaning libertarian who has been generally forced to choose from the lesser of two evils - and, especially recently, that's Dems by a long shot, significant differences aside. 

The looney right is far stronger, more unified, and dangerous so even a decision I don't love has generally been an easy one to make at the polls.
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I can respect this, even if I don't necessarily agree. The last facebook questionaire I took attempting to analyze one's political leanings labeled me a lefty-libertarian, so we're probably not far apart on most issues. I know you're in urban development - and that's an area where liberals are often on the wrong side of the issue, IMO. So I feel you.

As long as you're not doing the purity test thing and sitting out elections when Donald Freakin' Trump is an option, I gots no beef.  

 
CletiusMaximus said:
Based on the current term (without Scalia and with Gorsuch joining very late in the term), one could just as easily argue that Clarence Thomas is the "swing justice" which of course is ridiculous. For that matter, I'm certain 99.9% of this board and the general population knows nothing about the 4 cases which were decided 5-4 this past term.  As usual, I'll beat the same dead horse I always beat in this discussion - that the issue of supreme court nominations is consistently, massively blown out of proportion every time it comes up. As politically important as we all seem to want to make it, the reality it it matters not.
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I think you're 100% correct that the general public is generally ignorant of most SCt case law, but that doesn't mean they aren't impacted.  

 
Koya said:
I'm a left leaning libertarian who has been generally forced to choose from the lesser of two evils - and, especially recently, that's Dems by a long shot, significant differences aside. 

The looney right is far stronger, more unified, and dangerous so even a decision I don't love has generally been an easy one to make at the polls.
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I am coming around to this view.  The usual description of libertarians is "socially liberal and fiscally conservative."  (Not quite accurate, but good enough).  Under Trump, the GOP is turning into a white nationalist "socially conservative and fiscally liberal" party, like most nationalist parties in Europe.  It's kind of like the exact opposite of what I would like to see in a party.  I feel like I basically share their anti-PC worldview but that's about it.  

 
CletiusMaximus said:
The Court will release its final 6 opinions of the term today. Of the 64 opinions released so far, Kennedy has not filed a single dissenting opinion. He joined Breyer's dissent in Star Athletica, L. L. C. v. Varsity Brands, Inc. Kennedy has sided with the majority in 95.3% of the decisions released this term, just ahead of Elena Kagan who has sided with the majority in 95.2%. Last term Kennedy sided with the majority 97.5% of the time, writing one dissent, in Luis v. United States, in which he was joined by Alito. He also joined Thomas' dissent in Dietz v Bouldin. It seems likely the current SCOTUS term will finish with nearly 50 unanimous opinions, and another 17 or so with only one or two dissenters, out of 70 total opinions.
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This is great information, thanks! The Roberts Court continues to make great decisions imo, and this info implies that it may be the only branch of government that's actually functioning well right now.  

Can anyone link to a story or site that summarizes the decisions and also aggregates data like this for the entire term? Stories from yesterday that I'm able to find tend to be focused on one or two decisions only, and web sites I've found are too legal professional for me to get through quickly (SC review and SCOTUS blog and the like). TIA

 
Psychopav said:
This is great information, thanks! The Roberts Court continues to make great decisions imo, and this info implies that it may be the only branch of government that's actually functioning well right now.  

Can anyone link to a story or site that summarizes the decisions and also aggregates data like this for the entire term? Stories from yesterday that I'm able to find tend to be focused on one or two decisions only, and web sites I've found are too legal professional for me to get through quickly (SC review and SCOTUS blog and the like). TIA
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SCOTUSblog has stat packs with that type of info (http://www.scotusblog.com/2017/06/interim-stat-pack-october-term-2016/) and they also have "plain English" summaries of most major decisions and Supreme Court news. That's probably where I'd start. 

 
Hey mods, can you move this thread over to the Political Subforum?

So Justice Kennedy definitely isn't retiring this year?  Like, assuming no health issues we're not going to have any changes to the Court until June 2018 right?  

 
fatguyinalittlecoat said:
Hey mods, can you move this thread over to the Political Subforum?

So Justice Kennedy definitely isn't retiring this year?  Like, assuming no health issues we're not going to have any changes to the Court until June 2018 right?  
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I figure it will be a similar strategy the GOP used in 2016.  Get a Supreme Court vacancy, refuse to fill it, let it become an election issue to boost Republican turnout and preserve the GOP Senate majority.

 
Bruce Dickinson said:
I figure it will be a similar strategy the GOP used in 2016.  Get a Supreme Court vacancy, refuse to fill it, let it become an election issue to boost Republican turnout and preserve the GOP Senate majority.
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Dems need a Senate majority to execute that strategy.  Chances of Dems getting a majority in 2018 are very slim.

 
I enjoyed this little story from earlier this week in the New Yorker:  Ginsburg slaps Gorsuch

Toward the end of the Supreme Court’s argument in Gill v. Whitford, about the future of partisan gerrymandering, there was a revealing moment about the place of the newest Justice in the esteem of at least one of his peers. In less than a year, Neil Gorsuch has dominated oral arguments, lectured his colleagues, and given dubiously appropriate public speeches. Questioning Paul Smith, the lawyer challenging Wisconsin’s contorted district lines, Gorsuch made another pedantic gesture.

The argument had gone on for nearly an hour when Gorsuch began a question as follows: “Maybe we can just for a second talk about the arcane matter of the Constitution.” There was a rich subtext to this query. Originalists and textualists such as Gorsuch, and his predecessor on the Court, Antonin Scalia, often criticize their colleagues for inventing rights that are not found in the nation’s founding document. Gorsuch’s statement that the Court should spare “a second” for the “arcane” subject of the document was thus a slap at his ideological adversaries; of course, they, too, believe that they are interpreting the Constitution, but, in Gorsuch’s view, only he cares about the document itself.

Gorsuch went on to give his colleagues a civics lecture about the text of the Constitution. “And where exactly do we get authority to revise state legislative lines? When the Constitution authorizes the federal government to step in on state legislative matters, it’s pretty clear—if you look at the Fifteenth Amendment, you look at the Nineteenth Amendment, the Twenty-sixth Amendment, and even the Fourteenth Amendment, Section 2.” In other words, Gorsuch was saying, why should the Court involve itself in the subject of redistricting at all—didn’t the Constitution fail to give the Court the authority to do so?

Ruth Bader Ginsburg, who is bent with age, can sometimes look disengaged or even sleepy during arguments, and she had that droopy look today as well. But, in this moment, she heard Gorsuch very clearly, and she didn’t even raise her head before offering a brisk and convincing dismissal. In her still Brooklyn-flecked drawl, she grumbled, “Where did ‘one person, one vote’ come from?” There might have been an audible woo that echoed through the courtroom. (Ginsburg’s comment seemed to silence Gorsuch for the rest of the arguments.)

In one cutting remark, Ginsburg summed up how Gorsuch’s patronizing lecture omitted some of the Court’s most important precedents, and Smith gratefully followed up on it: “That’s what Reynolds v. Sims and Baker v. Carr did, and a number of other cases that have followed along since.” In these cases, from the early nineteen-sixties, the Court established that the Justices, via the First and Fourteenth Amendments, very much had the right to tell states how to run their elections.

In short, Ginsburg was saying to Gorsuch that he and his allies might control the future of the Supreme Court, but she wasn’t going to let them rewrite the history of it—at least not without a fight.

 
Gorsuck is a 1-2% wet dream.  This seat was stolen and the appointment of Gorsuck has to make people like the Koch bros happy.

But no, the rich people arent running the country... :lmao:

 
***NO ONE IS DEAD DON'T FREAK OUT***

Just wanted to share this cool article I found on fivethirtyeight.  Thoughts?  The link also has some fun charts and graphs that won't c/p.  I gained a bit more appreciation for Roberts after his speech to a graduating class of a prep school which content I had no idea a conservative thought.

https://fivethirtyeight.com/features/is-chief-justice-roberts-a-secret-liberal/

In 2009, The New Yorker’s Jeffrey Toobin wrote that Chief Justice John Roberts, more than any of his colleagues, had “served the interests, and reflected the values, of the contemporary Republican Party.”

My, how things change.

More than a decade after he was first appointed, Roberts does not appear to be the justice he was first made out to be. That could prove pivotal in the next few years, as any of several justices may retire. We could soon see a Roberts Court in more ways than one: with him as both chief justice andswing justice, sitting at the ideological center of the bench. But what kind of court would that be? It’s relatively early in Roberts’s Supreme Court career, but he is beginning to fit the historical pattern, at least quantitatively, of an ideological defector.

The case for a liberal John Roberts starts with his 2012 decision that determined the fate of the Affordable Care Act. The chief justice was widely expected to vote to kill the law — the crown jewel of the Democratic president whom he’d sworn into office three years earlier. Instead, he performed some contorted judicial yoga, declaring that the law’s individual mandate was a constitutionally allowed tax, siding with the liberal bloc and saving Obamacare.

Ever since that decision, the right has been concerned. Just this summer, the conservative news site The Daily Caller noted that Roberts “sided with the Supreme Court’s liberal bloc in two racially-tinged cases this term, breaking with his conservative colleagues in favor of housing-rights activists and a black death row inmate.” In 2015, the conservative National Review described the concern colorfully, and geographically: “John Roberts and Anthony Kennedy will, if the goblins in their heads are sufficiently insistent, ratify whatever Starbucks-customer consensus exists for 80 miles on either side of Interstate 95.”

The concern has even manifested in an adjective that’s been repeatedly applied to Roberts: “wobbly.”

We don’t know for sure what caused Roberts’s leftward shift. Those who talk about the inner workings of the court don’t know, and those who might know don’t talk. None of the many former Roberts clerks I reached out to for insight would talk to me. But we do know there’s been a shift.

To quantify ideology, I’ll use Martin-Quinn scores, a prominent measure created by two political scientists that use justices’ actual votes to place them quantitatively on a left-right spectrum, like DW-NOMINATE scores do for legislators.1 Justices’ shifts over time are usually mild — a matter of degree rather than of kind. But sometimes these shifts have been enough to unravel and reweave the fabric of the court, remaking the law of the land for decades after.

Four modern justices were appointed by Republican presidents and began their high-court careers as conservatives, but shifted left, crossed the center line, and ended up as liberals.

A brief history of the men above:

Justice Harry Blackmun was nominated by Richard Nixon in 1970 and confirmed unanimously by the Senate. In 1973, he authored the court’s opinion in Roe v. Wade, which protected the right to abortion.

Justice John Paul Stevens was nominated by Gerald Ford in 1975. A 2007 Times magazine profile of Stevens called him “The Dissenter” and mentioned the word “liberal” 44 times.

Justice David Souter was nominated by George H.W. Bush in 1990; Bush’s chief of staff said that he would “be a home run for conservatives.” He later voted to reaffirm Roe and dissented in the court’s decision in Bush v. Gore, which handed the presidency to the younger Bush.

And Justice Anthony Kennedy was nominated by Ronald Reagan in 1987. (Kennedy is not a solid liberal but is known as the court’s swing vote.) In 2015, he wrote the opinion that legalized gay marriage nationwide.

Roberts may yet join that list.

It’s not just the Martin-Quinn scores that provide evidence of a leftward shift. We can also see the change in the scores’ ingredients — the justices’ votes. In 2010, for example, Roberts agreed with the positions Justice Clarence Thomas, the most conservative justice according to the Martin-Quinn scores, 89 percent of the time and with Justice Samuel Alito, another conservative, 96 percent of the time, per the SCOTUSblog Stat Pack. He agreed with liberal Justices Elena Kagan and Ruth Bader Ginsburg 69 and 65 percent of the time, respectively. By 2015, with that same court intact, his agreement with those two conservatives dropped to 75 and 84 percent. His agreement with those two liberals spiked to 87 and 78 percent.

Despite the trends in the metrics, many of Roberts’s past Supreme Court positions have, without question, been archly conservative. His majority opinion in Shelby County v. Holder invalidated key provisions of the Voting Rights Act. He was in the majority in Citizens United, the liberal bête noire that protected the injection of corporate money into politics. The Hobby Lobby case was a victory for corporations and a blow to contraception access. He was highly skeptical of social science arguments against partisan gerrymandering in oral arguments this term. (That case has not yet been decided.)

Perhaps because of those decisions, legal experts I spoke with cautioned against reading too much into Roberts’s leftward slide, and they doubted that he is in the early stages of some bloodless liberal judicial coup.

Josh Blackman, a law professor and author of “Unprecedented: The Constitutional Challenge to Obamacare,” attributes the historical “defections” not so much to shifting ideologies but rather to poor initial vetting or presidential indifference to the true political beliefs of their nominees. Souter: merely a New Hampshire Republican. Stevens: never conservative in the first place. Kennedy: ditto. Blackmun: a moderate picked as a compromise after the Senate rejected Nixon’s two previous nominees. But Roberts: a real-deal conservative? “Roberts is no shrinking violet,” Blackman said. Roberts becoming a reliable liberal vote “is the liberal fantasy. But no matter how much Linda Greenhouse wishes it, it’s not going to come true.”2

But it’s not as though there’s nothing to the trend. This type of empirical shifting is common, but not universal — it means something that Roberts is on the move.3 For context, let’s take a look at one of Roberts’s colleagues.

Alito was confirmed to the court four months after Roberts. Both were nominated by George W. Bush and confirmed by a Republican-controlled Senate. Both were federal circuit judges before joining the Supreme Court. Roberts was an editor for the Harvard Law Review and Alito was an editor for the Yale Law Journal. And in their first two terms on the bench, both had nearly identical ideologies.

But beginning around 2007, Roberts and Alito diverged. Roberts now has a Martin-Quinn score more liberal than Kennedy’s score was five years ago, and more liberal too than that of Souter — a “defector” — at certain points in his career. Alito’s score, meanwhile, is about the same as Justice Antonin Scalia’s was when Scalia died last year.

And so we return to the question of why Roberts is drifting to the left. Kevin Quinn, a political scientist at the University of Michigan and co-developer of the Martin-Quinn scores, thinks Roberts’s shift may have something to do with his status as chief justice. “I think it is probably reasonable to assume that at least some of that movement was more a reflection of the institutional realities of being chief than a genuine change in his view of the law.”

Quinn said that former Chief Justice William Rehnquist, rather than Blackmun or Souter, might be the best point of comparison. Roberts clerked for Rehnquist in the early 1980s and took over his seat on the bench after Rehnquist died in 2005. Visually, Roberts’s ideological path is a remarkably fitting continuation of Rehnquist’s.

The chief justice, as opposed to the eight associate justices, is afforded certain special powers. One of these is critical. After the justices hear arguments in a case, they sit in a closed-door meeting called a conference where they cast their initial votes. If the chief is in the majority, he assigns the justice who will write the court’s opinion for that case. The theory goes that this protocol might give Roberts incentive to side with the liberals and vote against his truly held ideology so that he can assign himself the opinion, or assign it to another conservative justice in the majority. That way, the court’s opinion could be crafted in a way that’s more palatable to the chief justice. Strategic moves like these would shift Roberts’s Martin-Quinn score to the left but have no major impact on the actual decisions of the court.

There is evidence, however, that this isn’t Roberts’s game.4 Roberts has never not been chief, so if this strategy is what’s causing him to appear more liberal, he would have had to have started using it only in the last six or seven years, since he was steadily conservative for his first few years on the court. And Rehnquist, who underwent a similar shift, began moving left well before he became chief, so in at least one case we know that the chief’s powers weren’t the sole cause of a political realignment.

If Roberts really is liberalizing, how might that help define the law of the land? One place to look for clues is how Roberts votes in close, 5-4 cases. Since he took his seat, he has presided over 169 such cases, according to the Supreme Court Database. It’s hard to tease out much of a trend because each year only has so many cases to work with. In the 2006 term, Roberts voted in a liberal direction in just 8 percent of close cases.5 The next term, that number was 8 percent again, then 17, then 31, but then 6. By the 2013 term, the number was 30, and then 28 in 2014.6 If you squint, you can see a liberalizing trend, but it’s highly erratic.

This term alone, the court will decide the fate of partisan gerrymandering, shaping the future of American democracy. It will decide a case about a business owner refusing to serve a same-sex couple, shaping the future of gay rights. It will decide a case about cell phones and the privacy of our data. These votes will likely be close. In terms to come, the court may tackle the death penalty, abortion rights, gun rights and issues we can now only imagine.

Chief Justice John Roberts may wobble. No one but he knows where he will fall.
Click to expand...

 
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