I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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This Week At The Supreme Court

Tomorrow, or possibly later in the week, is going to be momentous for the United States Supreme Court.  Among other things, we’re going to have decisions in the Arizona immigration act case, cases from Alabama and Arkansas cases involving whether it is constitutional to sentence juveniles to life-without-parole, and the First Amendment/stolen valor case about prosecuting someone for claiming to have war medals they did not earn.

But most of all, we’re going to have some sort of decision in the health care cases.  I’ve never been more uncertain how cases would come out, not because the law wasn’t clear– under prior commerce clause analysis, the health care act gets upheld– but rather because of the way the arguments went and the noise in the system.  Received legal principles and traditional legal analysis– the sorts of things that would be controlling here under the old-fashioned notions I grew up on– are not really going to decide this.

I just have no idea.

And I have no idea about the juvenile life-without-parole case for similar reasons that are foreboding:  I think the result in that case is going to be determined strictly by whether such a sentence bothers Justice Kennedy, not for any principled reason from the right, left, or otherwise.  A lawyer’s job is predicting what a judge will do in a case.  I think we’re all pretty much at sea at this point.

James Fallows writes a post titled “Five Signs The US Is Undergoing A Coup.”

This is distilled from a longer item earlier today, at the suggestion of my colleagues. It’s a simple game you can try at home. Pick a country and describe a sequence in which:

  • First, a presidential election is decided by five people, who don’t even try to explain their choice in normal legal terms.
  • Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.
  • Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.
  • Meanwhile their party’s representatives in the Senate abuse procedural rules to an extent never previously seen to block legislation — and appointments, especially to the courts.
  • And, when a major piece of legislation gets through, the party’s majority on the Supreme Court prepares to negate it — even though the details of the plan were originally Republican proposals and even though the party’s presidential nominee endorsed these concepts only a few years ago.

How would you describe a democracy where power was being shifted that way?


Underscoring the point, a Bloomberg poll of 21 constitutional scholars found that 19 of them believe the individual mandate is constitutional, but only eight said they expected the Supreme Court to rule that way. The headline nicely conveys the reality of the current Court: “Obama Health Law Seen Valid, Scholars Expect Rejection.”

How would you characterize a legal system that knowledgeable observers assume will not follow the law and instead will advance a particular party-faction agenda? That’s how we used to talk about the Chinese courts when I was living there. Now it’s how law professors are describing the Supreme Court of the John Roberts era.

Meanwhile, George Cochran points me to an article that contends that the Roberts court is the most radical in Supreme Court history, and makes that point by comparing the major decisions in the Roberts court, which have been largely 5-4, to those in the Warren court, which, other than Miranda, were largely unanimous.

What I am mostly struck by is the article’s roll call of towering decisions from the Warren era and their impact:  Brown, leading to the break-down of Jim Crow, Gideon, assuring the right to counsel in criminal cases, New York Times v. Sullivan, guaranteeing that the First Amendment protects speech in the context of libel cases.   These and other unanimous decisions made our country a better place.  And it is hard to call them radical.  They were the product of Republican and Democratic justices.

The cited decisions by the Roberts court are startlingly different.

I’ll note here that my initial reaction to the article was that it had monumental criminal procedure decisions from the Warren era (Gideon, Miranda) but no comparable decisions from the Roberts era.  Is that because the major retrenching or worse occurred during the Rehnquist court (e.g. Teague, which cut back on habeas relief, Illinois v. Gates, which protected illegal police conduct in searches where there was “good faith,” a rubric that trial courts find all-encompassing)? I’m not sure.  One odd factor in criminal cases has been that Breyer will often turn up with the conservatives (witness last week’s confrontation clause case, which came out 4-1-4, with Thomas staking out an utterly incoherent position of explicitly agreeing with the dissent while voting to affirm), and that and some other realignments make the author’s 5-4 characterization of the Roberts court not quite work out, at least in the criminal cases.

Another reason I hesitate to accept the characterization of the Roberts court as most-radical has to do with several other moments in Supreme Court history.  Is this really a more radical era than the era of substantive due process?  Or the decisions in the 1870s to ignore the clear original intent of the Civil War Amendments?*


*Another era I don’t mention in the main text is Dred Scott, because it’s not as clear to me it is a radical decision. It is esxplicitly grounded in Taney’s view of the original intent of the framers about who is and is not a person.  Way back when Judge Bork was using Dred Scott as an exemplar of how not to do originalist decision making, I actually read the opinion and was startled about the degree it really explicitly grapples with the original meaning of the constitutional provisions involved.  It’s an originalist opinion that the Scalias of the world would find it easy to join. There’s no way to read the “original intent” of the constitution independent of the founder’s intentions about slavery.

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