Thursday, November 20, 2008

The next Supreme Court

The nation's attention is understandably fixated on the deepening financial crisis -- Citigroup is now the latest behemoth to invoke the "too big to fail" card -- and, of course, on whether Hillary Clinton will become our next Secretary of State (she will). Take a minute, though, to realize the ancillary effect that Barack Obama's election will have on the composition of the federal courts and, in particular, the United States Supreme Court. For the last seven years and eight months, George W. Bush has appointed almost 300 hundred judges to the lower district and appellate courts and made two key appointments to the Supreme Court, Chief Justice John Roberts and Sam Alito. Both have proven consistent and committed right-wing jurists -- there is nothing original or compelling about their judicial philosophies. Their opinions read like they've just rolled off the assembly line from the sophisticated network of public interest law groups, law school organizations and non-profit think tanks that comprise the factories where modern conservative jurisprudence has been nurtured and developed into powerful forces in American politics.

By the far the most influential group of this movement of the last 25 years is the Federalist Society, which began as an informal club among law students at Yale, Harvard and the University of Chicago to challenge what these self-described libertarians and conservatives called "orthodox liberalism," which to them was a political ideology just seven steps short of Communism. Since the second Bush administration came to office, the Federalist Society has some sort of connection to almost 50 percent of his judicial appointments. Roberts and Alito are both Federalist Society members. And while the society pretends that its outrage is over the craziness of such out-of-it radicals as David Souter and John Paul Stevens, both appointed by Republican presidents, refusal to adhere to the original intent of the Framers, its real motives are rooted in the conservative cultural, economic and political opposition to the substantive triumphs of modern American liberalism. All constitutional silences tend to favor the rights of majorities to rule, which is pretty much all the time unless they do something, which isn't often, to expand individual rights. Then we need to remember the courts are there to protect the individual from ruthless acts of badly-intentioned legislators or members of the executive branch . . .
. . . unless they're not. You get it, right?
Turns out, though, the Federalist Society will be hibernating in the political woods for the next four years and maybe, if Sarah Palin runs against Obama - oh, by the way, does anyone believe that Sarah Palin will even get invited to speak at the 2012 Republican convention, much less bear that party's standard? -- four more after that. Bush's appointments are young and conservative, and will have an impact on the lower federal courts' work for decades to come. But Obama will have to chance to fill around at minimum 200 vacancies in the lower courts, many of those openings due to the fact that the judicial appointees of Ronald Reagan and George H. W. Bush will be retiring, much more often than not, before Bill Clinton's appointments. I am certain that an Obama administration will take very seriously the judicial recruitment and appointment process, and take advantage, as W did, to shape the judiciary in a moderate to liberal direction. He did, after all, vote against the nominations of Roberts and Alito, as did Hillary Clinton. An Obama Justice Department is going to mean a renaissance for legal liberalism, as hundreds of eager young and established lawyers, some academic and some practioniers, will be vying to work there to undo, where possible, and halt, at minimum, the victories of the Bush administration in the courts and, more generally, the way law is thought of and manipulated throughout our culture. And the lawyers -- and, naturally, Ph.Ds in political science and philosophy -- who don't get into Justice will look elsewhere where they can debate and write about where the law should go and how best to get there.
New judges may well face many more complex statutory and constitutional questions than their predecessors. I am really interested to see how the courts will react to the inevitable challenges brought to the government's much more aggressive posture in regulating, if not, in some cases, taking over "private" industries in the automobile, financial, steel, insurance and real estate sectors. The next ten years or so could see the courts revisiting questions that haven't been raised since the New Deal. Conservatives are worried that Barack Obama will take pain to see that the courts get the attention they deserve as political institutions, and not buy into the nonsense that "the law" stands apart from politics. Let's hope the conservatives are right.

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