Following up on Mark's previous post, I think the correct analysis of why a Republican dominated court is unlikely to overturn Roe is not that the Justices themselves are primarily motivated to keep the Republican coalition together. Rather, the argument has to do with Presidential motivations in nominating particular Justices to the Supreme Court. That is, if you focus primarily on the motivation of Justices after they get on the bench you are looking in the wrong place for an explanation.

Since the failure of the Bork nomination in 1987, it has become clear that Republican Presidents and the party itself would pay a political cost if the Supreme Court appeared ready to overturn Roe v. Wade. Hence they have chosen people who were likely to weaken Roe but not directly overrule it. Ronald Reagan, for example, appointed Anthony Kennedy as a compromise candidate who could win easy confirmation. Kennedy has turned out to be far more moderate than Robert Bork would likely have been, and indeed, one can hardly imagine Robert Bork writing either Casey or Lawrence v. Texas.

Jeffrey Rosen reminds us that the contemporary Supreme Court has been remarkably friendly to business interests. It is good to have an account of this in the popular press every now and then, and no one is more deft than Rosen in telling the story. But the story itself should hardly surprise anyone.

From the standpoint of political science it is unremarkable that the modern Supreme Court has tended to side with business interests. First, as a preliminary matter, it is rare that someone gets appointed to the Supreme Court unless they are simultaneously acceptable to the mainstream of American politics, to political elites, and to elites in the organized bar. The same is true of the lower federal courts as well, although to a lesser extent. Candidates drawn from this pool are unlikely to be very hostile to business interests, and there is a good chance that they will be sympathetic. These tendencies mean that, in the long run, federal judges sympathetic to or supportive of the claims of business litigants will be more numerous than judges hostile to those claims.

This Wall Street Journal op-ed by Steven Calabresi and John McGinnis argues for John McCain on the grounds that he will appoint the judges who will "restor[e] constitutional government" and prevent Democrats from "threaten[ing] the jurisprudential gains of the past three decades, and provid[ing] new impetus to judicial activism of a kind not seen since the 1960s":
The expected value of any presidential candidate for the future of the American judiciary must be discounted by the probability that the candidate will not prevail in the election. For other kinds of issues, it may be argued that it is better to lose with the perfect candidate than to win with an imperfect one. The party lives to fight another day and can reverse the bad policies of an intervening presidency.

The judiciary is different. On Jan. 20, 2009, six of the nine Supreme Court justices will be over 70. Most of them could be replaced by the next president, particularly if he or she is re-elected. Given the prospect of accelerating gains in modern medical technology, some of the new justices may serve for half a century. Even if a more perfect candidate were somehow elected in 2012, he would not be able to undo the damage, especially to the Supreme Court.

Following up on Mark Graber's most recent post on the Supreme Court, consider why we might expect that the Supreme Court will not in fact produce principled results significantly superior to those produced by the national political process. One reason, famously suggested by Yale political scientist Robert Dahl, is that the U.S. Supreme Court tends, over time, to cooperate with the views of the dominant national political coalition. It does this by ratifying and legitimating most of the results of the national political process, by policing state and local governments so that they stay roughly in line with the views of national political elites, and (as Mark himself has pointed out) by acting as a political backstop to resolve controversies that national politicians would rather not have to take responsibility for.

The Supreme Court does tend to slow down rapid change when there is a shift in political regimes (and accompanying constitutional values), but eventually it goes along because new Justices appointed by the dominant national coalition replace older ones.

Following the oral argument in Heller, people have been having a good old time making fun of the Justices and their pretty transparent political motivations. Dahlia Lithwick's amusing account of the oral argument is one of her best.

Although I enjoy making sport of the Justices as much as anyone, the question of whether the 2nd Amendment protects an individual right, including a right to self defense, is not that difficult, at least to me. The framers of the 14th amendment assumed that it was one of the privileges or immunities of citizens of the United States. And if a right is a privilege or immunity of citizens of the United States, it hard for me to conclude that it does not bind the United States as well as the individual states.

Now, as a unreconstructed liberal (I'll show you pictures of my bleeding heart), I don't particularly like this result. But it follows sufficiently strongly from other commitments I have about the Constitution that I must accept it.

That's how I come out on the case, but of course, none of the Justices is likely to reason the way I do. So what do I think of their approaches and rationalizations, which were vividly on display at yesterday morning's oral argument?

Over at Convictions, David Barron argues that the eagerness of conservatives to uphold gun rights shows that they are also eager to overturn Roe, despite the damage this would do to the Republican party.

As one of the leading purveyors of the claim that the Court will chip away at Roe without overruling it, I respectfully suggest that David's logic is flawed.

The legal culture today is marked by an easy acceptance of the notion that politics have a major influence on decisions by the Supreme Court. That was the point of several recent books on the Supreme Court (including my favorite, Toobin’s The Nine). It was the point of Judge Posner’s 2005 Harvard Law Review article on the Supreme Court--“A Political Court.” Political scientists have relentlessly pounded the “judging is politics” theme for four decades now (still presenting it as if we didn’t already know). And newspapers today routinely explain SCOTUS decisions in terms of political alignments of the judges.

Although we like to think of ourselves as more world-wise than our nineteenth century forebears in holding this sophisticated perspective on the Court, they weren’t the formalist dummies we often make them out to be.

The influence of politics on Supreme Court decisions was the subject of an 1893 article—“Politics and the Supreme Court of the United States”—in the American Law Review (then older and more prestigious than the Harvard Law Review).

George Packer's article in the New Yorker on "The Fall of Conservatism" reports that "most" of the younger conservatives he spoke with "predicted that Republicans will lose the Presidency this year and suffer a rout in Congress."  He quotes Republican strategist Ed Rollins:  "Today, if you're not rich or Southern or born again, the chances of your being a Republican are not great."

Suppose these predictions and analyses are correct.  What are the implications for the Supreme Court and especially for the continued vitality of Roe v. Wade?

Today's Washington Post has an article that discusses "The Downside of Obama Strategy," i.e., that he actually has the audacity to believe that every Democrat's (and, perhaps, every American's) vote should count equally. The article notes (accurately) that Clinton has done better in large, electoral-vote-rich states than has Obama, which has ostensibly provoked fears about the prospects of his winning in November. It doesn't matter that he has received more popular votes than Clinton in contested elections--which allows us to omit Michigan and Florida--and, of course, that he has won more delegates. All that matters, according to a number of quoted Clinton supporters, is the vote in large states. So what we have is an attempt to apply to the nominating process the Electoral College's effective disenfranchisement of those unlucky enough to live in states where they are the political minority and the insane emphasis on a relatively few "battleground" states . One gather that Clinton will lose to Obama in today's caucuses in Wyoming. But, hey, it doesn't matter what Wyoming Democrats think, because they live in a Republican state.

Chris Elmendorf
U.C. Davis School of Law

The New York Times reports that "28 retired generals and admirals plan to release a letter on Friday urging Congress to repeal" the law requring the military's don't ask don't tell policy. This is an unjust policy that is on its way to repeal. The only question is when.

A Wall Street Journal columnist today suggests that “Obama’s ‘Identity’ Beat Hillary’s ‘Identity.’” His argument is that the Democratic party is dominated by identity politics, and Senator Clinton lost because the race card beat the sex card.

The columnist claims, furthermore, that Obama (influenced by legal theorists at Harvard) sees matters in terms of identity politics, regardless of his professed desire to move beyond it. The columnist writes:
After South Carolina, the campaigns accused each other of playing the race or gender card. Obama deflected this charge. "I don't want to deny the role of race and gender in our society," Obama said. "They're there, and they're powerful. But I don't think it's productive."

I'm not convinced. I think Barack Obama is more inclined to interpret American life in the formal categories of identity politics than is generally thought, or even than would older "conventional liberals" like Al Gore or John Kerry. Legal theorists have been a main source of its ideas; it's hard to imagine that Barack and Michelle Obama didn't hear a lot about "marginalized constituencies" at Harvard Law School. Sen. Obama may not be so conventional after all.

During the past decade, prominent political scientists have written terrific essays under the rubric "political regimes." Many essays cite as foundational such previous work as Robert Dahl’s "Decision-Making in a Democracy: The Supreme Court as a National Policymaker," 6 Journal of Public Law 279 (1957). Neither Dahl nor the first studies which elaborated his thesis, however, used the term "political regimes" to describe their analysis. Indeed, these foundational works had a somewhat different point than works which self-consciously employ the "political regimes" label. At least, this is true of an essay I wrote that is sometimes cited in this vein. With some luck, this post (and possibly a few others) will clarify matters and not add to the confusion.

The current situation in the Democratic and Republican parties is almost entirely a function of the fact that they operate under two strikingly different election systems. It is "natural experiment" that has much to teach us about institutional design. The Democrats are operating under a classic system of proportional representation. The only real surprise is that it so quickly was reduced to a two-person contest, probably a function of the enormous amounts of money needed to finance a modern campaign. The Republicans, on the other hand, have chosen to operate, in many states, under a classic first-past-the-post winner-take-all system. This means that John McCain was able to get all of Missouri's delegates by getting, I believe, 34% of the total vote in that state. I haven't done the numbers to know what would be happening in the Democratic race if states operated on a first-past-the-post winner take all system. At the very least, Clinton would have hundreds of additional delegates from New York, New Jersey, and California, for starters, not to mention similar possibilities in Texas and Ohio, should she win either by even one vote. If Republicans had adopted a p.r. system similar to the Democrats, then John McCain would by no means have the nomination locked up, and we could all look forward to a circus at the Republican convention in Minneapolis.

Most law professors and lawyers are convinced that the Supreme Court has a special capacity to be guided by constitutional values. Professor Ronald Dworkin of Oxford and New York University Law School described the Supreme Court as “an institution that calls some issues from the battleground of power politics to the forum of principle.” The Supreme Court “is predestined in the long run not only by the thrilling tradition of Anglo-American law but also by the hard facts of its position in the structure of American institutions,” Professor Henry Hart of Harvard Law School agreed, “to be a voice of reason, charged with the creative function of discerning afresh and of articulating and developing impersonal and durable principles of constitutional law.” Elected officials who make the slightest effort to limit federal judicial power bring down the wrath of a united bar. Lawyers of different political persuasions do not agree on much, but most wax eloquent about the virtues of an independent judiciary.

In a previous post I predicted that the Supreme Court would find for individual rights advocates in the upcoming Heller case, but that this might advantage gun control advocates and the Democratic party in the short run. Responding to my analysis, James Skoufis over at Real Clear Politics argues:

What affect will a decision next spring in the Second Amendment case, Heller v. District of Columbia, have on the upcoming 2008 elections?

Bob Bauer

Chris Elmendorf, who has written some of the best work on institutional design in the field, has offered a thoughtful response to our extended riff on the merits of the Carter-Baker Commission's voter ID decision. We agree with much of his nuanced and smartly critical post. We agree fully, for example, with his points on the right uses to make of experts. More generally, we think that Elmendorf overstates our dissatisfaction with the Carter-Baker Commission: one of us has had positive things to say about the Commission's role, and the other has acknowledged its usefulness despite harboring stronger reservations about the Commissions design and decisionmaking process.

As I noted in a previous post, I have been having an exchange with Professor Michael Klarman over at the American Constitutional Society. My last post seems particularly relevant to some concerns of Balkinization, so as either a public servive or, more likely, pathetic self-promotion, I've reproduced an edited version.

Michael Klarman’s work on the constitutional history of race correctly notes that American racial politics have historically been subject to periods of polarization, and that this polarization has had surprising consequences. Every major burst of civil rights activism in the United States has been preceded by an intense period of polarization, marked by increased militant commitments to the racial status quo in the south. To an extent rarely commented on, the Constitution of the United States may be responsible this polarization and may also bias ordinary politics toward more conservative racial views.

At this time of year my thoughts turn to Bush v. Gore. That’s because I have taught a Fourteenth Amendment class in the fall semester for about 12 years. In November 2000, happily teaching my students the nuances of the right of privacy, I was fielding an increasing number of questions about the election crisis. I hadn’t planned to teach voting rights that year, but I saw it would be helpful to devote some class time to the developing litigation. As I suspect many conlaw profs were doing that November, I explained to the class that given institutional and justiciability concerns, there was little likelihood the Supreme Court would intervene in the middle of one of the most political processes we have (and constitutionally unique to boot).

George W. Bush is now in the midst of trying to ensure his legacy. His speech this Friday at the Conservative Political Action Committee made clear that he sees the future direction of the Republican party as continuing what he regards as his signature policies: demanding lower taxes appointing conservative judges, increasing spending on defense, and fighting the war on terror, which, for Bush, means continuing the war in Iraq and the military occupation of Iraq indefinitely. Put another way, Bush's speech put down a marker that if John McCain or any other Republican wants to be elected in 2008, Bush expects it will be by a continuation of his basic policies-- a third term of the George W. Bush Administration. It is worth noting that on almost all of the issues just mentioned, John McCain appears to be following Bush.

The Republicans, now divided, are trying to put the Reagan coalition together again. Bush's advice is: do it my way. Use my Presidency and its commitments-- low taxes, a conservative judiciary, and national security in an age of terrorism as the party's mantra going forward. To know what the Republicans stand for, look at what I stand for.

It appears that John McCain is the anointed (at least by the press) nominee of the Republican Party, not least becasue he carried a number of Northeastern states in which he basically stands no chance of winning in November and because he won 33% of the vote in Missouri and, apparently, 44% of the Republican vote in California. As to the former, the winner-take-all feature had been engineered to slingshot Rudy Giuliani into the lead. Obviously, things changed. (California is not winner-take-all for the Republicans.) Missouri is also a winner-take-all state, which means, by definition, that a candidate rejected by 67% of the relevant electorate can nonetheless "win" because of being first-past-the-post. Perhaps McCain might have won in a run-off or alternative transferrable vote, but there is certainly reason to doubt this in Missouri.

Bob Bauer

On Thursday Bob Pastor offered a measured defense of the Carter-Baker Commission's recommendation on voter identification against criticisms that we (along with Brad Smith) levied in the wake of the Supreme Court's Crawford decision. One of us agrees with a good deal of what Pastor says about the merits of shadow institutions like the Carter-Baker Commission and the useful purpose the Commission served in Crawford (see here); the other is more skeptical (see here). But there are a few issues where we both part company with Pastor.

We remain convinced that the public deserved something better than what the Carter-Baker Commission produced on the photo i.d. question. The main source of disagreement between us and Pastor turns on the difference between a bipartisan compromise and a nonpartisan decision. There are many issues for which a bipartisan compromise will be a satisfactory, even superior alternative. This is not one of them.

Needless to say, many pundits are now commenting on the rules of the Democratic Party re the selection of its presidential candidate. See, e.g., E.J. Dionne's column in today's Washington Post, where he writes that "Democrats have contrived a nominating contest that even Rube Goldberg would have considered too convoluted, too dysfunctional and too improbable to name as his own." Save for the certainly peculiar way by which Texas names its delegates--I had the pleasure of voting twice for Barack Obama, once in early voting (in a secret ballot) and then several days later at my local caucus (which is definitely not secret)--I don't share the hostility to a preference-sensitive proportional representation system that does not negate the votes of everyone who doesn't vote for "the winner" (who may, as with McCain in a number of states, get distinctly less than a majority of the vote). But I've already made such arguments, and I won't rehearse them again. My current grumpiness is about something else, though regular readings of Balkinization shouldn't be surprised by what I'm about to write.

All of the presidential candidates seem to be picking up Barack Obama's theme of change and portraying themselves as agents of change. If things keep going the way they have been, the 2008 election now looks to be as defining a moment as 1932, 1968 or 1980. (If things keep going, that is. A lot can happen in ten months).

If 2008 turns out to be a pivotal election, defining a new political era, it is important to give credit where credit is due. Two key reasons for the change will be the crackup of the coalition of the dominant party of the era, the Republicans, and the almost complete political failure of George W. Bush and his chief political adviser, Karl Rove. Let me begin with the second feature, and move to the first.

A number of scholars have recently proposed that we should cut back on the Supreme Court's power of judicial review of legislation. The idea of abolishing it, however, appears to be gaining little traction. Judicial review has positive benefits and dumping it strikes many as too drastic (although the UK has done fine without it). Another suggestion out there is to eliminate court jurisdiction over certain types of cases. That also seems overly blunt.

In a series of posts, I have raised various points Judge Richard Posner makes in his fascinating new book, How Judges Think. To put it with a bit of exaggeration, Posner skewers (with great style) just about everyone who says anything about judging, with the exception of pragmatic judges and advocates of pragmatic judging. A main theme of the book is his attack on the many delusions of "legalists." His prime example of a legalist is Justice Scalia (he identifies me as a legalist as well, so it's a broad category). Here is one of his more interesting arguments about legalists:

As many of you who regularly read my blog know, I'm not big into politics here. (It's a fascinating, but dirty business.) I've written the rare column about it, but I watched the returns on Thursday's Iowa caucuses with some interest, and I thought I'd write something about it, as the 2008 presidential campaigns got officially underway.

As you all know, Barack Obama and Mike Huckabee were the winners on the Democratic and Republican sides, respectively. Obviously both candidates got a huge boost from winning the first major political contest of the 2008 presidential campaign. But I thought some pundits went a little overboard with the pronounciations they were making, especially about Obama.