Recently in The Roberts Court Category

"In the lower courts, according to a study Professor Long published in the Washington & Lee Law Review last year, Mr. Dylan is by far the most cited songwriter. He has been quoted in 26 opinions. Paul Simon is next, with 8 (12 if you count those attributed to Simon & Garfunkel). Bruce Springsteen has 5."

With great lawyers, you have discussed lepers and crooks: By way of Ted at the Late Adopter, the NYT examines Chief Justice Roberts' use of Dylan in court opinions. "Mr. Dylan has only once before been cited as an authority on Article III standing, which concerns who can bring a lawsuit in federal court...The larger objection is that the citation is not true to the original point Mr. Dylan was making, which was about the freedom that having nothing conveys and not about who may sue a phone company."

"The court's five most conservative members have demonstrated that for all of Justice Antonin Scalia's talk about 'originalism' as a coherent constitutional doctrine, those on the judicial right regularly succumb to the temptation to legislate from the bench. They fall in line behind whatever fashions political conservatism is promoting." In the WP, E.J. Dionne eviscerates the Scalia wing of the Roberts Court for their 5-4 decision in D.C. v. Heller yesterday. As you've no doubt heard by now, the decision (penned by Scalia) parsed the Second Amendment in such a way as to overturn the handgun ban in the District (and seemed to simply ignore the existing precedent of US v. Miller.) As Slate's Dahlia Lithwick deadpanned, "today's decision 'will almost certainly cause more Americans to be killed.'"

As it turns out, the Court went 0-for-2 yesterday, also deciding 5-4 (Alito writing the majority opinion) that McCain-Feingold has been prejudicial against the wealthy. In response, Sen. Feingold noted that the millionaire's amendment was flawed anyway: "I opposed the millionaire’s amendment in its initial form and I never believed it was a core component of campaign finance reform." Still, the decision here may not bode well for campaign finance opinions down the pike. "'What's most significant here is what this means for the future,' said Rick Hasen, a professor at Loyola Law School. 'It tells us that the long-standing limits on corporate and union campaign spending are in grave danger.'"

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times," Justice Anthony M. Kennedy wrote for a five-member majority clearly impatient that some prisoners have been held for six years without a hearing." In a setback for the Dubya administration and a victory for the American way of life, the Supreme Court grants habeas corpus rights to Guantanamo detainees. (The decision in Boumediene v. Bush is now the fourth time the Court has reaffirmed the rule of law over Dubya's monarchial anti-terror policies.)

In vicious dissent, the conservative bloc: Roberts, Scalia, Thomas, and Alito, with Scalia in particular scowling and ranting like a Batman villain. "'America is at war with radical Islamists,' he wrote, adding that the decision 'will almost certainly cause more Americans to be killed.' He went on to say: 'The Nation will live to regret what the court has done today.'" To which I say, "Get over it." I highly doubt we'll regret it as much as your being put on the Court in the first place, Justice Scalia.

One of the staples of the failed drug war, mandatory minimums take two substantial hits as the Supreme Court decides 7-2 in favor of judicial discretion in a pair of drug cases, Kimbrough v. U.S. and Gall v. U.S. "Justices Clarence Thomas and Samuel A. Alito Jr. dissented in both cases."

"'There’s a growing sense, a growing probability, that the next administration could be Democratic,' said Craig L. Fuller, executive vice president of Apco Worldwide, a lobbying and public relations firm, who was a White House official in the Reagan administration. 'Corporate executives, trade associations and lobbying firms have begun to recalibrate their strategies.'" As a Democratic presidency in 2008 looks increasingly likely, business lobbyists scramble for deals under Dubya. "Few industries have more cause for concern than drug companies, which have been a favorite target of Democrats. Republicans run the Washington offices of most major drug companies, and a former Republican House member, Billy Tauzin, is president of their trade association, the Pharmaceutical Research and Manufacturers of America." Well, for them to be really concerned, we Dems have to show more backbone in the face of lobbyists than we have thus far in this Congress. And, as Simon Lazarus recently pointed out anew in The Prospect, no matter who wins in 2008, corporate lobbyists will still have the Roberts Court to back their play for some time to come.

Sigh...According to the NYT, a new ad for John McCain by a soft-money front, Foundation for a Secure and Prosperous America, -- which McCain has disavowed -- exemplifies the rush of unregulated, undisclosed money expected in the 2008 race, thanks in part to the Supreme Court's gutting of McCain-Feingold over the summer. "The decision removed virtually any restrictions on [corporations'] ability to advertise, and made nonprofit corporations, with their few disclosure requirements, the tool of choice for big donors looking to influence elections...They can now run explicitly political advertisements that mention specific candidates right up to Election Day, as long as they have some other ostensible purpose -- even one that closely resembles a candidate’s campaign themes."

"In his telling, virtually everyone who has ever wronged him has done so because of his race...And maybe because he can see no shades of gray, in the end, Thomas careens back and forth in this book between seeing himself as a victim or a self-actualized hero. There is precious little in between." Dahlia Lithwick reads My Grandfather's Son, the new autobiography by Justice Clarence Thomas.

"And then this year, all hell breaks loose. The last few weeks have produced one Oprah-grade revelation after another. Which makes gazing up at the justices today something like waking up the morning after Woodstock: There's a tangle of naked judicial limbs up there on the bench, and the uneasy collective sense that it's best to avoid eye contact." It's that time of
year again: Slate's Dahlia Lithwick reports in from the Supreme Court's first Monday, one made more uncomfortable than usual by the summer's events. "Of this I am certain: In the few hundred pages of his new book, Thomas has managed to undo years of effort by his colleagues to depoliticize the judicial branch."

“'I don’t think of myself as a liberal at all,' he told me during a recent interview in his chambers, laughing and shaking his head. 'I think as part of my general politics, I’m pretty darn conservative." A holdover link from last weekend (and a follow-up of sorts to this 2006 post): Jeffrey Rosen profiles Justice John Paul Stevens in the NYT Magazine. "In criminal-law and death-penalty cases, Stevens has voted against the government and in favor of the individual more frequently than any other sitting justice. He files more dissents and separate opinions than any of his colleagues. He is the court’s most outspoken defender of the need for judicial oversight of executive power. And in recent years, he has written majority opinions in two of the most important cases ruling against the Bush administration’s treatment of suspected enemy combatants in the war on terror."

"This is probably one of the most important cases in decades as it relates to the death penalty." Now we'll really see how pro-life they are...the Supreme Court agrees to hear a case on the constitutionality of lethal injections.

In a challenging pop test of compassion for lefty news readers, Chief Justice John Roberts suffers a seizure at his vacation home in Maine. (He previously experienced a similar seizure in 1993.) Roberts has 'fully recovered from the incident,' and a neurological evaluation 'revealed no cause for concern,' the Supreme Court said in a statement." (Well, I, for one, will admit to breathing a sigh of relief when I found it was Roberts, and not Justice Stevens, who suffered the scrape. In any case, it sounds like the Chief Justice is fine.)

"'Conservatives got everything they could reasonably have hoped for out of the term,' said Thomas C. Goldstein, a Washington lawyer who specializes in Supreme Court litigation." Proving the crucial importance of the Alito-O'Connor switch (and, I'll continue to maintain as my answer to Emily Bazelon's line of questioning, the 2004 election), the Roberts Court flexed its muscle in depressing fashion this week, voting 5-4 (as feared) not only to gut the McCain-Feingold act in the name of "free speech" but also -- seriously, no lie -- to partially roll back Brown v. Board of Education. (In another well-reported case, the majority's inordinate fear of bongs trumped this stalwart commitment to free speech.) So, if you're keeping score, Roberts, Alito, Scalia, Thomas, and Kennedy came down like this: money good, corruption good, drug hysteria good; clean politics bad, youthful irony bad, integration bad. Oh, wonderful. Suddenly, the announcement that the Court will take a look at the Guantanamo cases doesn't sound so appetizing. Update: Slate's slate of legal observers discuss.

"'This is deja vu all over again,' said Justice Stephen G. Breyer. 'We've heard it.'" The Supreme Court hears oral arguments on McCain-Feingold...again, and word suggests the act's fate may now be in jeopardy with Roberts and Alito on the Court. "Those justices seemed open to a Wisconsin anti-abortion group's challenge of a provision that corporate-funded ads broadcast in the weeks before an election not mention a candidate by name." Update: Slate's Dahlia Lithwick was watching too, and agrees that it doesn't look good for McCain-Feingold, which she labels a "Dead Duck Walking."

"The government may use its voice and its regulatory authority to show its profound respect for the life within the woman." In keeping with a tendency to move right incrementally, without necessarily overturning any laws (one that may also pose trouble for the McCain-Feingold act in coming weeks), the Roberts Court upholds a ban against partial-birth abortion 5-4, with Justice Anthony Kennedy the swing vote. (He was joined, of course, by Justices Scalia, Thomas, Roberts, and Alito.) Kennedy's reasoning? According to Slate's always-perceptive Dahlia Lithwick, it was fear of the Inconstant Woman: "Today's holding is a strange reworking of Taming of the Shrew, with Kennedy playing an all-knowing Baptista to a nation of fickle Biancas." For her part, Senator Barbara Boxer sadly summed it up as such: "'It confirms that elections have consequences,'...alluding to Bush's re-election and the seven GOP Senate wins in 2004 which set the stage for the appointment of Roberts and Alito."

With that in mind, all the major candidates for 2008 obviously weighed in on the decision in Gonzales v. Carhart, although everyone pretty much followed to party script, even the ostensibly pro-choice Giuliani. [Clinton | Edwards | Giuliani | McCain | Obama | Richardson | Romney] "Wednesday's ruling raises the stakes for the 2008 presidential election, which is almost certain to pit an abortion-rights Democrat against an anti-abortion Republican." Let's not make the same mistake again, y'all.

"EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change." By a 5-4 decision, the Supreme Court determines that the Dubya EPA violated the Clean Air Act when it refused to regulate greenhouse gas emissions, thus hopefully setting the stage for an (admittedly unlikely) reevaluation of global warming by the executive branch. "Chief Justice John G. Roberts Jr. wrote one dissent, which was joined by Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas." Yep, the usual suspects.

"'The stakes are enormous,' said Michael E. Toner, a Federal Election Commission member who served on President Bush's campaign in 2000. 'We're watching this case very closely.'" It was upheld 5-4 in 2003...can it withstand Justice Alito? The Roberts Court declares it will take another look at McCain-Feingold in the coming session, and opponents of reform are hoping Alito will help them reopen the floodgates. "Richard L. Hasen, an election law expert at Loyola Law School in Los Angeles, said the Supreme Court challenge is 'going to be a prime opportunity for opponents of campaign regulations to make some headway in watering down the standards.'"

Newly released -- and somewhat controversial -- FBI files, dating from the former Chief Justice's two confirmation battles in 1971 and 1986, disclose that William Rehnquist battled a painkiller addiction in the early '80s while serving on the Court. "Doctors interviewed by the FBI told agents that when the associate justice stopped taking the drug, he suffered paranoid delusions. One doctor said Rehnquist thought he heard voices outside his hospital room plotting against him and had 'bizarre ideas and outrageous thoughts,' including imagining 'a CIA plot against him' and 'seeming to see the design patterns on the hospital curtains change configuration.' At one point, a doctor told the investigators, Rehnquist went 'to the lobby in his pajamas in order to try to escape.'"

Regarding ballot initiatives, it was a bad night for same-sex marriage and marijuana decriminalization. Still, there's cause for hope around the country in the six state minimum-wage hikes that passed, as well as the repudiation of the stringent abortion law in South Dakota (Justice Kennedy: take note.) Speaking of the Court, its eminent domain decision of last year took a beating in nine states, although California, Idaho, and Washington thankfully repudiated stronger measures that would effectively hobble any kind of federal land regulation.

Guess who's back? The Roberts Court reconvenes for another term, and all eyes are on Justice Kennedy...

As the legislative and judicial branches struggle to rein in Dubya's excesses, recent Senate testimony on the treatment of Gitmo detainees reveals fissues within the administration's approach to the Hamdan ruling: "The testimony has shown that the Justice Department -- which had insisted on the legality of the existing policy -- is eager to sharply limit the impact of the Supreme Court's decision, while military lawyers and some other Pentagon officials are celebrating it as a vindication of their long-held concerns about U.S. detainee policy." Update: "The President is always right?" (Via Looka.)

In a blow to the monarchial presidency that may also affect future rulings on warrantless wiretaps and torture policy, the Supreme Court strongly rebukes Dubya for his Gitmo tribunals, declaring they "were not authorized by any act of Congress and that their structure and procedures violate the Uniform Code of Military Justice (UCMJ) and the four Geneva Conventions signed in 1949." As Justice Stephen Breyer summed it up in a concurring opinion: "The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a 'blank check.'"

"Every redistricting is a partisan political exercise, but this is going to put it at a level we have never seen...That's the gift that the Supreme Court and Tom DeLay have given us." In other news, the Court votes 5-4 that DeLay's Texas redistricting plan needs to be tweaked -- namely, that one district needs to be redrawn to accommodate the Voting Rights Act -- but is otherwise legal and constitutional. "[W]ith six justices producing 123 pages of opinions, without any five of them able to agree on how to define an unconstitutional gerrymander, politicians of both parties said that the ruling leaves the door wide open to attempts to copy the DeLay strategy in other states."

Boo hiss. The Supreme Court decides 6-3 to strike down a Vermont campaign finance law, which was conceived in part as a challenge to Buckley v. Valeo. "The result appears to doom any future efforts to impose spending limits on state or federal campaigns, legal analysts said." And, in related news, Slate's Dahlia Lithwick and Walter Derringer discuss recent Supreme Court decisions, with special attention to the recent capital punishment case, Kansas vs Marsh.

"'There's been a quiet, silent revolution going on,' Carp said in an interview. 'If you're a conservative, you're going to say, "Thank God." If you're a liberal, you're going to put your hands over your head and say it's a nightmare.'" By way of my friend Mark, CQ's Kenneth Jost laments the Dubya judiciary.

"If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case. Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds." In a Georgetown commencement address, new Chief Justice John Roberts expounds on his view of the job after eight months. Well, we'll see when those next few decisions come in.

Did White House officials steal a file on John Roberts' affirmative action record from the National Archives last year? "This investigation is unresolved and the file is still missing," says a new report by the Archives Inspector General, which Tim Noah dissects over at Slate. (Hmmm...was it reclassified, perhaps?) Still, according to the report, a White House staffer was the last person known to have the file, and "[t]he report's findings contradicted the assertions of Archives officials, who said last August that an attendant had been in the room at all times and that the lawyers had been separated from their bags." The mystery deepens...

'Even if the Court were to rule in Padilla's favor,' Kennedy went on, 'his present custody status would be unaffected. Padilla is scheduled to be tried on criminal charges. Any consideration of what rights he might be able to assert if he were returned to military custody would be hypothetical, and to no effect, at this stage of the proceedings." By a margin of 6-3 (Ginsburg, Breyer, and Souter dissenting), the Supreme Court punts on Padilla, on the grounds that Padilla's dilemma has been rendered "hypothetical" now that he's been transferrred into the normal justice system.

Justice Ginsburg disagrees: "This case...raises a question of profound importance to the Nation. Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an 'enemy combatant'? It is a question the Court heard, and should have decided, two years ago. Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests."

"Leave it to Justice Antonin Scalia to trigger a nationwide debate about the hermeneutics of chin flips." From an "empaneled jury" of Sopranos actors to Justice Scalia's uncharacteristic appeal to foreign precedent, Slate's Dahlia Lithwick muses on the sideshow surrounding the Justice's recent Sicilian kiss-off.

"The president's consistent refusal to try the Guantanamo detainees before criminal courts or courts-martial leads a reasonable observer to conclude that the government's case would fail if it were subjected to scrutiny by an impartial adjudicator. And if that is the only justification for military tribunals, it must be rejected. No one denies that the war on terror presents new challenges to the rule of law. But prosecuting someone with a crime that does not exist, before a commission that does not have rules, simply does not constitute justice under any set of circumstances." Slate files several dispatches on the important case of Hamdan v. Rumsfeld, which the Supreme Court (without Chief Justice Roberts, who has recused himself...as should probably Scalia) will hear today. Emily Bazelon finds that GOP Senators Kyl and Graham seem to have tried to deceive the Court about the legislative history of their Detainee Treatment Act, while Ariel Lavinbuk suggests a compromise solution: the Supreme Court could "find that 'conspiracy' -- the only charge against Hamdan -- does not violate the law of war."

Update: The Court hears the case, and it seems a majority -- Scalia and Alito notwithstanding -- are not amused with the Dubya administration: "Without Chief Justice John Roberts...the argument seemed lopsided against the government." Still, as was expected to be the norm on the Roberts Court,"the outcome of the case will likely turn on moderate Justice Anthony M. Kennedy."

"It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings." Former Justice Sandra Day O'Connor goes after judge-bashers on the right, quoting very intemperate remarks by Boss DeLay and Sen. John Cornyn. Kudos to her, although, as Ed ranted earlier today, this is all coming a bit late, isn't it? I mean, where were Justice O'Connor's concerns about avoiding such ends when she became the swing vote on Bush v. Gore (arguably for dubious personal reasons)? Like her fellow Arizonan John McCain, Justice O'Connor talks nice about standing up to right-wing power-grabs. But, also like McCain, when it was her turn to face them down, she didn't walk the walk.

The Bush administration loves it, but many Justice Dept. officials think it's illegal...Now, it's the Supreme Court's turn to weigh in on Boss DeLay's gerrymandering plan in Texas. "Two years ago, justices split 5-4, in a narrow opening for challenges claiming party politics overly influenced election maps. Justice Anthony M. Kennedy was the key swing voter in that case, and on Wednesday expressed concerns about at least part of the Texas map." (Rehnquist and O'Connor sided against the map challenge then, so a switch by Roberts or Alito will only mean a larger majority against the DeLay redistricting, should the same votes hold.) Update: Justice Ginsburg finds the subject exhausting, and Dahlia Lithwick reports in.

'If anything, Stevens's influence has grown in recent years. He has a knack for building coalitions across ideological lines, and he makes shrewd use of his prerogatives as the senior associate justice. It is largely because of him that a court with seven Republican-appointed members, and nominally headed by a conservative, Chief Justice William H. Rehnquist, produced a string of relatively liberal results in recent cases." The Post's Charles Lane profiles the Court's Supreme lefty and history's third-oldest justice, John-Paul Stevens.

Despite well-publicized concerns in their own Justice Department (which were overruled by senior officials), the White House rides to the rescue of Boss DeLay's troubling redistricting plan by filing an amicus brief before the Supreme Court. "DeLay's efforts on behalf of the plan resulted in his being admonished by the House Ethics Committee and indicted on charges of illegally diverting money to the campaigns of state legislators who drew the new map."

Well, That's that, then. Justices Stevens, Ginsburg, Souter, Breyer, and Kennedy: Please take your vitamins.

"While it's true that O'Connor has tended to vote with the majority more frequently than Kennedy, and that she has done so in some big 5-4 decisions, it's also true that in other extremely contentious areas, it is Kennedy, not O'Connor, who has swung the court leftward." As Dem begin to announce their no votes for Alito (while downplaying the likelihood of a filibuster), Dahlia Lithwick -- who is concerned about Alito's judgment in the relatively precedent-less world of anti-terror-law -- gives us hope for the Court's future in highlighting Anthony Kennedy as the new swing vote. (Clearly, the psycho-right despises him, which speaks well of his jurisprudence in my book.)

Ten days after the Post unearthed a Justice Department memo deeming the recent Texas redistricting a violation of civil liberties, the Supreme Court says it will review the DeLay plan. "The panel stressed that it was deciding 'only the legality' of the redistricting plan, 'not its wisdom.'"

"When my party retakes the White House, there may very well be a Democratic John Roberts nominated to the Court, a man or woman with outstanding qualifications, highly respected by virtually everyone in the legal community, and perhaps with a paper trail of political experience or service on the progressive side of the ideological spectrum. When that day comes, and it will, that will be the test for this Committee and the Senate. And, in the end, it is one of the central reasons I will vote to confirm Judge John Roberts to be perhaps the last Chief Justice of the United States in my lifetime."

By a vote of 13-5, John Roberts is approved by the Senate Judiciary Committee -- with Dems Patrick Leahy, Herb Kohl, and Russ Feingold joining the Republican majority -- and will no doubt become the Court's next Chief Justice. The Dems -- and particularly Sen. Feingold -- are already getting flak for their Yes votes from People for the American Way and other liberal groups. (For their part, Hillary and Joe Biden have decided to keep the 2008 primary voters happy.) Well, just as I think Feingold was right to vote yes on Ashcroft in 2001, I think he made the correct decision here, both in terms of principle and politics.

In terms of principle, I think Feingold's statement above is exactly correct. We could go through 1000 nominees, and Dubya would never pick anyone who comes remotely close to being a progressive -- Sadly, the conservative tinge of the Supreme Court was decided last November, with Dubya's re-election. The question before the Senate was whether Roberts was (a) competent enough to fill the position of Chief and (b) whether he adhered to the broad mainstream (albeit conservative mainstream) of American legal thought. I watched almost all of the Roberts hearings and, although he dodged and weaved past way too many important questions, he was clearly (a) hyper-competent and (b) more respectful of existing legal precedent than many other conservative freakshows Dubya could have appointed (and might still.) Roberts said a number of times that he believed in a constitutional right to privacy, that Griswold was good and settled law, and that (although most agree on this anyway, Janice Rogers Brown notwithstanding) the Lochner Court was not an appropriate or worthwhile historical role model for today's judiciary. Perhaps he's lying, but it's no small business to lie before the Senate. I think Feingold was right to take his word at face value and vote yes, with reservations.

Voting for or against a 50-year-old Chief Justice is not a decision to be taken lightly, and I'm sure Dems on both sides of the vote chose their stance on principle. But, to be base for a moment and consider the politics of the situation, the Yes voters allowed themselves wiggle-room on the next nominee that most Dems have basically wasted on a sure thing. Roberts is replacing Rehnquist, a conservative for a conservative. The real battle lies ahead, when Dubya appoints a justice to take O'Connor's swing-vote position. Where are the Dems who voted no on Roberts going to go? Chances are the next candidate for justice will be less competent and more conservative, in the scary-fundy sense, than Roberts, but the no-voting Dems have lost all pull by not keeping their powder dry. Had the Dems acceded to Roberts' nomination, they would have easier recourse to a possible filibuster in Round 2, particularly with the fair-play-minded Gang of 14. Now, not so much.

At any rate, I'll admit to being already something of a Feingold groupie -- More than any other Dem, except perhaps the late Paul Wellstone, I view him as my Senator in Congress, the closest thing to a true progressive out there. (For what it's worth, I also thought he did a better job than any other Dem in his questioning of Roberts, with the possible exception of Dick Durbin.) Still, I think he made the right decision in this vote, and I hope very much that groups on the left who disagreed with his choice here keep an eye on the big picture and don't start calling for his head.

And Roberts? Well, I'm never going to agree with the guy on a lot of issues, that's for sure. But, in the hearings, I thought he came across as conservative in the old and best sense of the term -- cautious, restrained, not inclined to break tradition -- and not as a frothing, fundamentalist reactionary like any number of judges Dubya has appointed to the bench. Let's hope, for all our sakes, that this turns out to be the case.