Posts Tagged ‘Supreme Court’

Seen to Be Done

Saturday, 1 February 2020

I present this table

Justices of the US Supreme Court in November of 1952
Hugo Lafayette BlackRoosevelt (D)Democrat27 Feb 188618 Aug 1937
Stanley Forman ReedRoosevelt (D)Democrat31 Dec 188427 Jan 1938
Felix FrankfurterRoosevelt (D)Democrat15 Nov 188220 Jan 1939
William Orville DouglasRoosevelt (D)Democrat16 Oct 188617 Apr 1939
Robert Houghwout JacksonRoosevelt (D)Democrat13 Feb 189211 Jul 1941
Harold Hitz BurtonTruman (D)Republican22 Jun 188822 Sep 1945
Frederick Moore VinsonTruman (D)Democrat22 Jan 189021 Jun 1946
Thomas Campbell ClarkTruman (D)Democrat23 Sept 188919 Aug 1949
Sherman MintonTruman (D)Democrat20 Oct 18905 Oct 1949

in advance of polemic that I anticipate over the next five or more years.

The Presidential candidates who might plausibly receive the nomination of the Democratic Party are such that, in the absence of a financial crisis, President Trump is very likely to be reëlected. He has, so far, been able to select two appointees to the US Supreme Court.

Four of the nine Justices now serving are appointees of Democratic Presidents. One of these, Justice Ginsburg, will be 87 years old in March, and has had repeated bouts with cancer. Another, Breyer, will be 82 years old in August; it is very likely that he will leave the Court before 2024. A third, Sotomayor, is in her mid-sixties, but suffers from type 1 diabetes. Whoever is elected to the Presidency in 2020 will surely replace between one and three of these Justices. There may be only one Justice from the Democratic Party in 2024.

Which is why I point to the Court in 1952. It had no Justices other than those appointed by Democratic Presidents, and only one Justice who, prior to appointment, had not been affiliated with the Democratic Party. The Republican Party won the Presidency and a majority in each chamber of Congress. But, if there were any argument that it would be right and proper to increase the number of Justices on the US Supreme Court in order to reëstablish a majority of Republican appointees or somesuch, that argument sank without a trace.

Unappealing Court Logick

Tuesday, 7 December 2010
Court weighs constitutionality of gay marriage ban by Paul Elias & Lisa Leff of the AP

The panel […] seemed worried about allowing the governor and attorney general to effectively kill Proposition 8 by refusing to defend it.

Note that the question here is not whether state officials are required to defend the law in the original hearing, but whether officials are permitted to accept the ruling of the lower court when that ruling rejects a measure. If officials are not permitted to accept such a ruling by a lower court as to the constitutionality of a measure, then one has to ask why these matters shouldn't as a rule go first to the Supreme Court.

Given the present court system, requiring state officials to exhaust their appeals in defense of a measure would creäte an asymmetry in favor of whatever measure had passed; laws would always have to be accepted as in accord with the constitution unless challengers had the resources to fight all the way to the Supreme Court. Beyond that, the residual function of the lower courts would be to allow appeals courts and the Supreme Court to moderate their work-loads by refusing to hear an appeal.

The question of whether supporters of Proposition 8 have standing to appeal the lower court ruling should turn not upon whether this were the only way to ensure that a law is fully defended, nor upon whether it is the only way that what may plausibly be their rights should be defended, but upon whether indeed it is at all plausible that their rights are at stake, regardless of whether state officials are doing anything to protect those rights. If a party were not given standing to defend its rights, on the grounds that state officials were providing such a defense, then state officials could erode those rights by providing a weak defense.

Candidata and Candidate

Wednesday, 27 May 2009

Back when Barack Obama and John McCain had selected their respective running-mates for the Presidential race, a 'Net friend wrote

[…] it does seem that Obama picked the best person to help him govern, whereas McCain picked the best person to help him win.
which was certainly a plausible interpretation of the choice (so long as we tweak it to refer to the expectations of Obama and of McCain).

Now Obama has nominated an appointee to the Supreme Court who is unlikely to sway other judges in favor of left-wing opinion:

The Case Against Sotomayor by Jeffrey Rosen of the New Republic 04 May 2009

[…] Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was not that smart and kind of a bully on the bench, as one former Second Circuit clerk for another judge put it. She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue. (During one argument, an elderly judicial colleague is said to have leaned over and said, Will you please stop talking and let them talk?) […]

Sotomayor has infamously asserted

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.
Well, the logician in me wants to point out that the decisions of any wise person (Latina or otherwise) can be be expected to be better over-all than the decisions of a typical person (white and male or otherwise); wisdom simply isn't typical. So if Sotomayor hadn't implicitly inserted a second wise in front of white male, then she would have expressed something basically true but close-on to vacuous, and cluttered-up with inappropriate adjectives.

Unfortunately, she was arguing against the claim that a wise old man and wise old woman will reach the same conclusion in deciding cases, so she was arguing for a sort of sexism, at least a sexism conditional upon race.

In any case, the problem is that Sotomayor herself isn't wise. That leaves the (somewhat redundant) Latina woman part. That part wouldn't help her to reach better decisions or even to argue effectively for whatever judgments she reached, but it would help the Democrats in future elections and help Obama in particular.

(The Republicans are in poor position to complain about such a selection. When running for President in 1980, Ronald Reagan promised that his first nominee to the SCotUS would be a woman. Worse, the woman whom he nominated was Sandra Day O'Connor, whose judicial philosophy, such as it was, was baddumbmommism — an insistence on ending specific conflicts by imposing pragmatic compromise.)