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Tammy Kitzmiller, et al., Plaintiffs v. Dover Area School District, et al., Case No. 04vc2688, kitzmiller_342 - November 2005
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Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

The Judiciary as a Lightning Rod
Russell D. Renka
PS103 - May 6, 2009

Politics of the Court
What's Political, and What's Constitutional?
Works Cited

Politics of the Court                     Top; Next Down

    The judiciary is a "third branch" in the American separation of powers federal system.  It lacks the congressional power of the purse.  It lacks the presidential power of the sword.  It ultimately has only judicial review, the power to ultimately define what the Constitution says when disputes arise over that meaning.  And it decides civil and criminal trials involving federal law as well.  That's a lot of power.  Compared to other democracies, which conduct trials but often permit little or no judicial review, the American court system is potent.

    Certainly the social conservatives regard the federal (and state) courts to be important.  That's because a large share of the issues they care most about--those involving abortion and birth control rights, the right to die question, the issues of gay marriage and gay civil rights, evolution v. creationism, home schooling prerogatives, affirmative action in civil rights, and procedural rights of criminal suspects--all centrally involve the federal court system as a key decision-maker.  Their common complaint is that those courts have usurped these powers from the rightfully elected branches of state and federal government.  They want those powers reduced if liberal courts exist; and they want social conservatives on the bench if courts retain power to decide cultural-war issues.  These can be competing strategies; but whatever the mix they adopt, they seek to bend the courts to their goals.  For this reason alone, we witness recent intense political combat over the naming of judges by those elected branches of government.

    On May 3, 2006 Southeast was visited by Associate Justice Antonin Scalia, a member of the Supreme Court since 1986 and a national spokesman and leader of the social conservatives on and off the bench.  He was confirmed for the Court by 98 to 0 that year, but on May 3 said "I wouldn't get 60 votes" if he were nominated for a high Court seat this year.  Given his forthrightness in social conservative positioning plus the 109th Congress Senate head count of 55 Republicans, and not all of them social conservatives, this speculation was probably correct.  Almost certainly it would be so in the 51 to 49 Democratic-majority 110th that was seated on 3 January 2007.  Likewise, in 1993 Justice Ruth Bader Ginsberg received nearly unanimous approval to the Court; but in the hothouse cultural climate of 2006, it's debatable that any social conservative would vote to confirm her.  This is so even though both are indisputably capable jurists.  Even accomplished judges like Scalia and Ginsberg now get reviewed for partisan and ideological correctness on those cultural war issues--most centrally Roe v. Wade on abortion, but other issues as well.  The politics of Roe has poisoned the well.

    The 2005 Kitzmiller v. Dover Area School District creationism case in Pennsylvania demonstrated one such cultural conflict being resolved in a courtroom rather than executive or legislative branch.  The 2005 Terry Schiavo case in Florida is another (even though the Congress attempted to step into that one in the 12th hour).  A succession of such cases are invoked by cultural warriors to highlight judicial actions they deem antagonistic to conservative social goals.  One is the judge's verdict in Dover to the effect that intelligent design is creationist religious doctrine rather than authentic science, thereby disappointing anti-evolution religious leaders who created this case with intent to have it adjudicated.  Quite inevitably, there will be more cultural collisions like this in the near future.  And cultural liberal and secularist interests have their own gripes with the Court, which in April 2007 upheld a federal law outlawing partial birth abortion with no health exception (Gonzales v. Carhart et al., 05-380 and Gonzales v. Planned Parenthood of America, 05-1382; GONZALES v. CARHART; Stout 2007, Supreme Court Upholds Ban on Abortion Procedure - New York Times).  Both recent Bush Court appointees voted with that 5 to 4 majority.

  This is political strategy to elevate cultural issues to a greater status on national institutional agendas.  It has largely succeeded in doing that.  This intensified conflict includes "borking" in reference to the signal Senate defeat in 1987 of President Reagan's nomination of Robert Bork, then the leading academic constitutional law conservative of the nation.  That defeat embittered parties on the conservative side, not least Robert Bork himself.  The Clarence Thomas nomination of 1991 made it all worse, as cultural warriors lined up on both sides for that exceedingly close 52 to 48 confirmation vote to seat Thomas.  Since Democrats then controlled the Senate majority by a substantial margin, President George H.W. Bush followed a "stealth strategy" of finding nominees who lacked the clear written Bork-styled paper trail that would provide fodder for cultural warriors to line up strongly for or against the nominee.  Bush was personally a cultural moderate, and he didn't want to provoke expensive fights after barely getting Thomas confirmed.  That produced the 1990 David Souter nomination, and it sailed through the Senate with ease as Souter's absence of written records and personal controversy made him an easy sell.  He was confirmed by Senate vote of 90 to 9 (Oyez David H. Souter, U.S. Supreme Court Justice; U.S. Senate Roll Call Vote - Souter nomination).  But since Souter's confirmation, conservatives have bitterly cited his moderate and sometimes liberal rulings as proof that only confrontational nomination of true conservative jurists will suffice.

    But Bush lost to Clinton in 1992, and then in midterm 1994, Republicans took over the Congress.  They had cultural liberal Bill Clinton as president right as religious conservatives began to care more deeply about voting Republican to promote traditional values (as Fiorina demonstrates in Culture Wars?).  Clinton continued a stealth strategy where he could, but no high Court nomination came his way in those six years of 1995 to 2000 when Republicans controlled the Senate.  Those Republicans, led by religious conservative John Ashcroft of Missouri, found ways to hold up many lower court nominations from Clinton by keeping them from reaching the Senate floor from the Senate Judiciary Committee.

    So Clinton departed, as George W. Bush assumed office in January 2001.  After May 2001 with a Democratic Senate and Republican president, Democrats on the Senate Judiciary Committee returned the favor and promised that the most culturally conservative nominees would meet with filibusters if they did reach the floor.  That led to the explosive "nuclear option" debates of 2003, 2004 and 2005 where Senate Republican threatened to author a ruling that the filibuster itself was an invalid procedure.  The Committee of Fourteen, a true moderate and bipartisan group of 7 Senators from each party, defused that by concurring that judicially qualified nominees would get floor votes, while the right to filibuster was still held firm for exceptional or extraordinary cases.  That permitted the 2005 nominations and confirmations of two Supreme Court justices.  One was the Chief Justice nominee John Roberts.  The Senate confirmed him by 78 to 22 with all 55 Republicans and 23 of the 45 Senate Democrats voting for him (Political Arithmetik -  Roberts Confirmation Vote, 29 September 2005).  This was partly in deference to his impressive command of constitutional law, which far exceeded that of the Senators (and was painfully obvious to observers of the televised confirmation proceedings).  Also accepted was new Associate Justice Samuel Alito (succeeding retired Justice Sandra Day O'Connor) in January 2006.  He gave a less impressive performance in Senate hearings, and confirmation was closer, by 58 to 42.  A hint on the reason was humored media use of "Scalito" to align Alito with Justice Antonin Scalia (11.3.2005, Political Arithmetik - Initial News Coverage of Alito).  Alito and Roberts then predictably joined Scalia in the 2007 decision to uphold a 2003 federal law outlawing the partial birth abortion procedure (cited above).

    Conservative cultural warriors were elated in predictable fashion, and liberal ones comparably dismayed (Stout 2007, Supreme Court Upholds Ban on Abortion Procedure - New York Times).  Roe v. Wade was still on the books in 2007 and 2008, but could soon be overturned if Republicans continued in control of the nomination process for vacancies on the highest Court.  If that happens, then conservatives will no longer rail against court rulings on cultural issues.  Instead, they will insist upon it.  But now that we know the presidential verdict of 2008, their prospects of that are dim.  With aging Court moderates who may step down, President-elect Obama will likely have 1 or 2 new appointments that will get confirmed by the 60 Democrats in the Senate of the 111th Congress or its successor (the 112th after the 2010 midterm election).

     And on 6 August 2009, that became fact, with the confirmation of Sonia Sotomayor as the newest Associate Justice in replacement of the retired David Souter.  Her confirmation vote was 68 to 31, with 59 Democrats to none opposed (and Kennedy abstaining while at home), and 9 Republicans in favor to 31 opposed.  The New York Times demonstrates that those 9 chiefly came from Democratic territory on the criterion of 2008 presidential vote for Obama (blue) or McCain (red) (8.6.2009, How Republican Senators Voted on Sotomayor - Interactive Graphic -  She is the first Hispanic and the third woman to take a seat on the high Court. 

    The recent confrontational politics of judicial nominations goes beyond the 9 Supreme Court positions down to the 180 seats in the 13 federal Circuit Courts of Appeal (Judicial appointment history for United States federal courts - partisan mix - Wikipedia).  Prior to the 2006 election, President Bush repeatedly promoted hard-line conservative nominations there in defiance of Senate liberal and moderate refusals to confirm them.  Bush in 2007 and 2008 faced a choice similar to President Clinton's lame duck 1999 and 2000:  whether to seek middle ground confirmable choices for the high court and the 13 circuit courts of appeal, or whether to promote ideological cultural conservatives in defiance of Senate Democrats.  Clinton largely avoided ideological collisions, opting instead to put forth a mix of moderates and to allow some tradeouts with key Republicans (a liberal for one circuit court, a conservative for another, both voted through as a package brokered by Senator Orren Hatch of the Senate Judiciary Committee).  Bush did not follow that model, having demonstrated very little inclination to avoid such cultural collision points; but he conceded the impossibility of filling some controversial vacancies with highly conservative nominees.  The value of the Clinton approach is getting court vacancies filled and courts to operate at full speed, considering their overloaded court dockets.  The value of the Bush approach is extension of his political legacy in the predominance of conservative CCA appointments despite high numbers of sustained vacancies there (partisan mix).

Caseload                     Top; Next Down

    The caseload problem should not be taken lightly.  The modern history of federal courts is one of caseload clogging and consequent systematic efforts to winnow down that load.  This has been done with most notable success at the level of the Supreme Court.  During his long tenure as Chief Justice and primary court administrator from 1986 to his death in 2005, William Rehnquist worked to bring the highest Court's annual caseload down from 120 or 130 to approximately 80 cases for that nine-month-long period (beginning October 1 and concluding at the end of June or by July 4).  This was done by several measures, including open and repeated signaling to lower courts and to litigants that any case had to be "ripe" for constitutional interpretation by the high Court, or else the Court's rule of four standard would spurn the writ of certiorari seeking Court order to have to case brought to it.  He was highly successful at that, resulting in about 1 percent of each year's 8000 requests for a writ getting granted (Supreme Court, The Justices' Caseload; details in Supreme Court - Docket; mother site - Supreme Court of the United States).  That made it possible for each Justice and his or her clerks to attend carefully to every case that reached the Court for ultimate review.  In fact, it was so successful that new Chief Justice William Roberts signaled for the 2006-07 session that the Court could address more cases than the calendar was expected to receive; but despite that, the 2006-07 docket was remarkably uncluttered (Greenhouse 2006).  The benchmark of 80 cases per term by 2008 has become well established.

    One reason for case limitation is the high Court's careful avoidance of issues involving executive v. legislative authority to authorize and conduct war.  Since 9-11-2001 that has been the predominant single issue in conduct of the Bush Administration.  But through year 2006 it reached the Court only in two cases.  One was Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (summation in Oyez - Hamdi v. Rumsfeld).  This American citizen was held in a military brig without trial or charges or access to an attorney after being picked up in Afghanistan in fall 2001 and being classified as an enemy combatant.  The Court ruled that that this violated his Fifth Amendment right to Due Process.  This was a rare case of the Court ruling on central questions of suspension of rights during the war on terrorism.  A second important case was the 29 June 2006 of a Yemeni citizen who was once Osama bin Laden's driver in Afghanistan before he was captured there (Hamdan v. Rumsfeld, 548 U.S. (2006) ruling (summation in Oyez -  Hamdan v. Rumsfeld; Totenberg 2006, 'Hamdan v. Rumsfeld' Path to a Landmark Ruling - NPR).  The high Court by 5 to 3 vote rejected a Bush Administration claim of a right to try some Guantanamo detainees as accused war criminals in military tribunals where those accused were denied communication even with with their own lawyers.  They were also denied the right to see evidence against them or to call any witnesses on their own behalf.  The Court held that this procedure was unconstitutional.

   But in general, Court intervention in such matters involving presidential power to make war is a rare thing indeed.  Instead, we may expect a host of additional culturally sensitive arguments to preoccupy the Court's time and attention.

What's Political, and What's Constitutional?               Top; Next Down

    You should understand the the high Court still operates under severe constraints on its power.  First is in terms of policy implementation.  On some questions, the Court can issue an order and expect lower-level courts and criminal justice officialdom to observe its rulings, on penalty of adverse review if they do not.  Normally this involves administration of justice by lower federal courts and by state courts.  Thus when convicted felon Clarence Earl Gideon petitioned the Court in the early 1960s and won a new criminal trial from the State of Florida, the state obliged and this time provided the defendant with a state-appointed counsel in accordance with the federal Sixth Amendment's right to counsel (Gideon v. Wainwright, Landmark Supreme Court Cases; Oyez Gideon v. Wainwright, 372 U.S. 335 (1963), U.S. Supreme Court Case Summary & Oral Argument).

    But on other questions, the Court is heavily dependent on the acceptance of its rulings by officials not subject to Court oversight.  This is particularly the case with most national security decisions of the president.  It also applies to the most celebrated 20th century Court decision, that of Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) (Brown vs. Board of Education - Background Summary; Oyez Brown v. Board of Education (I), 347 U.S. 483 (1954), U.S. Supreme Court Case Summary & Oral Argument).  School desegregation in the south did not proceed substantially in the decade from 1954 to 1964 despite the Court's 1955 order to proceed with "all deliberate speed" to dismantle racially divided dual school systems (Oyez Brown v. Board of Education (II), 349 U.S. 294 (1955), U.S. Supreme Court Case Summary & Oral Argument).

    There is another and perhaps greater constraint on the high Court.  That's inherent to its caseload of 80 compared to 8000 or more annual requests for a writ of certiorari (order to bring a case before the Court).  But it's more inherent to the foundational question of what the Court should decide.  Simply put, it decides only when a constitutional dispute arises, but when is that?  Any question before the Court can be a political question, or a constitutional question.  When it's constitutional, the Court decides it.  When not, the Court leaves the decision to others.

    Patterson (2008) illustrates this problem with our old tandem questions of congressional district malapportionment and the accompanying issue of district gerrymandering.  The Court in 1962 through 1964 declared malapportionment to violate the 14th Amendment's equal protection clause.  In effect, districts must be identical in population after the Census within a given state.  That's the specific meaning of "one person, one vote"  (Patterson 2008, 427).  It's been settled law ever since Baker v. Carr and successor decisions dating from 1962 (Oyez Baker v. Carr, 369 U.S. 186 (1962)).  But those were preceded by a lengthy history of Court refusals to decide this very matter, per Colegrove v. Green (Oyez Colegrove v. Green, 328 U.S. 549 (1946)).  So that issue was a "political question" then.  But leading up to 1962, the 1910 to 1960s malapportionment of districts became more and more flagrant, and civil rights emphasis plus angry suburbanite lawsuits highlighted as much.  The Court changed its mind, and that issue became firmly constitutional.

    Not so for gerrymandering.  In fact, one person, one vote gave license for creative gerrymandering in the years after 1962.  We still watch it flourish.  But it invites every bit the challenge that malapportionment once received.  Vieth v. Jubelirer in 2004 saw the Court closely divided, with conservatives ruling that Pennsylvania's pro-Republican partisan statewide gerrymander of congressional districts was a "political question" for the state to decide (Oyez Vieth v. Jubelirer, 541 U.S. 267 (2004)).  Four liberals argued otherwise, saying that it was a "justiciable" issue where the justices should determine the meaning of the Constitution.  And the 9th judge?  Anthony Kennedy declined to overturn the Pennsylvania mapping, but hinted that other flagrant gerrymanders to come could be subject to Court rulings.

    So you tell me:  is there something inherent to malapportionment that is constitutional in nature, or something about gerrymandering that is not?  The Court strives for consistency in determining what the law is, but here we have a problem.  The Court cannot decide everything.  It decides only those things where our most fundamental law, that of the Constitution, is at stake.  And that's a moving target.

Works Cited

Greenhouse, Linda.  2006.  Dwindling Docket Mystifies Supreme CourtNew York Times, 7 December 2006.

Patterson, Thomas E.  2008.  The American Democracy, 8th ed.  New York:  McGraw Hill.

Stout, David.  2007.  Supreme Court Upholds Ban on Abortion ProcedureNew York Times, 18 April 2007.

Totenberg, Nina.  2006.   'Hamdan v. Rumsfeld' Path to a Landmark RulingNational Public Radio,  ----- 2006.


Copyrightę2009, Russell D. Renka