Supreme Trivia Quiz

National Journal

Elsewhere in this issue I discuss how the outcome of the presidential election might affect the Supreme Court’s future. Below is a midsummer trivia quiz on the Court’s richly quotable past.

Some quotes are by justices, others are about them or the Constitution. Award yourself 1 point for identifying the author of a quote; 2 more for naming the case or the author’s written work (where applicable); and, for Nos. 20-25, add 3 degree-of-difficulty bonus points for naming the author. A perfect score is 81. A score of 42 qualifies you as a Supreme Court expert. Answers are at the end.

1. "I know it when I see it."

2. "If the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

3. "A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens."

4. "John, who the hell is … the guy dressed like a clown?"

5. "Thus, by a tour de force reminiscent not of jurists such as Hale, Holmes, and Hughes, but of escape artists such as Houdini, the Court eludes clear statutory language, ‘uncontradicted’ legislative history, and uniform precedent in concluding that employers are, after all, permitted to consider race in making employment decisions."

6. "Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."

7. "Yes, two, and they are both sitting on the Supreme Court."

8. "The life of the law has not been logic; it has been experience."

In the Balance

National Journal

Among the starkest contrasts between John McCain and Barack Obama is the dramatic difference in their promised approaches to judicial appointments, especially to the closely divided Supreme Court.

McCain, eager to establish credibility with conservatives, has bashed liberal "activist judges" who intrude into "policy questions that should be decided democratically,"and essentially vowed to move the Court sharply to the right in judicial philosophy.

The presumptive Republican nominee has identified Bush-appointed Chief Justice John Roberts and Justice Samuel Alito as models.

Obama, who voted against both men during their Senate confirmation hearings, has said that they and the Court too often side with "the powerful against the powerless" and lack "empathy" for ordinary people. The presumptive Democratic nominee exudes determination to move the Court sharply to the left if he gets the chance.

At a time when the Court is precariously balanced–with four conservatives, four liberals (including the two oldest justices), and the ideologically eclectic Anthony Kennedy–these contrasting approaches have provided opposing activists with nightmare visions to rally the Democratic and Republican bases during the presidential race.

Barbarians on the Bench?

National Journal

At the Supreme Court, the right-wingers are always up to no good, and almost always in charge. Or so it seems to the sizable slice of the journalistic-academic-cosmopolitan world typified by The New York Times‘ editorial page.

A new wrinkle in this summer’s assessments is that the conservative cabal appears to have co-opted liberal Justices Stephen Breyer, David Souter, and John Paul Stevens. Beyond that, even Barack Obama, who has one of the most liberal voting records in the Senate, was somehow seduced into siding with conservative Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts in two big cases.

To explain, let’s examine a July 3 Times editorial, "A Supreme Court on the Brink." It began by lamenting "highly conservative rulings on subjects like voting rights and gun control"; the former showed that the Court had "abandoned its special role in protecting voting rights when it rejected a challenge to Indiana’s harshly anti-democratic voter-ID law," and the latter will add to gun violence by recognizing a right to keep guns for self-defense at home. The editorial went on to decry the "cold-hearted decision" allowing Kentucky to use a particular lethal injection method to execute capital murderers and the decision reducing to a $500 million "pittance" the $2.5 billion punitive damages award against ExxonMobil for the 1989 Exxon Valdez oil spill. The main bright spots, the editorial noted, were the Court’s "third rebuke to the Bush administration on Guantanamo" and the decision striking down the six state laws that made the most vicious rapists of children eligible for the death penalty.

Opening Argument – Affirming Justice Thomas

National Journal

For all the new attention focused on the tired old arguments about whether Clarence Thomas did or did not talk dirty to Anita Hill almost 25 years ago, his recently published memoir raises far more consequential issues. At the top of the list is Justice Thomas’s impassioned account in My Grandfather’s Son and recent media interviews of his conviction that racial affirmative-action preferences do African-Americans more harm than good.

The Thomas memoir brings this complaint to the fore at a time when a little-noticed battle is raging over an impressive and growing body of social-science research that offers some empirical support for Thomas’s view. This research suggests that preferences set many black students up for failure, as well as stigmatize the accomplishments of those who succeed and divert attention from the real causes of racial inequality.

So unsettling is this research — led by Richard Sander, a UCLA law professor and statistician — that affirmative-action champions are desperately seeking to deny Sander and other scholars access to the empirical databases that could provide even more graphic evidence of the costs of using heavy-handed preferences to engineer diversity.

Sander’s sophisticated statistical analyses suggest that racial preferences place so many black students into highly competitive law schools for which they are underqualified — and thus likely to fail — that there are actually fewer black lawyers than there would be if admissions were color-blind. Other scholars of diverse ideological views have joined Sander in seeking to shed more light on the validity (or invalidity) of his findings.

Opening Argument – Law Should Trump Loyalty

National Journal

For all the partisan bitterness in the air and the messes that Attorney General Alberto Gonzales has made, it shouldn’t be that hard for President Bush to replace him with someone far, far more effective. Nor should it be hard to get a conservative Republican nominee of quality confirmed without giving away the store to Democrats or weakening the presidency.

In particular, the right nominee could get through the Senate without caving in to the demands of some Democrats that a special prosecutor be appointed to investigate the White House role in the firings of nine U.S. attorneys, or that Bush abandon his claims of executive privilege.

The big question, at this writing, is whether a president who so clearly values lapdog loyalty over competence, integrity, and independence can bring himself to invert those priorities.

If the nominee inspires bipartisan trust, who needs special prosecutors with their built-in bias toward investigative overkill? The amazingly still-unexplained U.S. attorney firings do smell fishy and do need to be investigated energetically. But this ain’t Watergate. The American people get that.

There is, to be sure, something to the complaint by David Rivkin and Lee Casey, in an August 29 Wall Street Journal op-ed, that "the only unifying theme congressional Democrats have exhibited since taking control last January is an unremitting hostility toward President Bush in particular, and executive power in general."

Any nominee will face a tough confirmation hearing.

But even those Senate Democrats most eager to rub Bush’s nose in the dirt understand that if they come off as obstructionist, or beat the tired "special prosecutor" drum too incessantly, the electorate will punish them. And their hostility to executive power is tempered by their confidence that it will belong to them as of January 20, 2009.

Shortsighted on Judges

The Atlantic

Imagine that two years hence, Sen. Hillary Rodham Clinton, or Sen. Barack Obama, or former Sen. John Edwards is president. She or he will be trying to fill dozens (eventually) of vacancies on federal Courts of Appeals with liberal-leaning nominees. And perhaps one or two Supreme Court vacancies as well.

If and when those nominees face Republican filibusters or other tactics to deny them floor votes, what standing will the new Democratic president have to protest? How, for example, could Obama show his own nominees to be more deserving of confirmation than former Mississippi Judge Leslie Southwick, who is under attack by Obama and other Senate Democrats simply because liberal interest groups consider him too conservative?

Southwick, who is a professionally well-qualified and personally admirable Bush nominee for the U.S. Court of Appeals for the 5th Circuit (covering Louisiana, Mississippi, and Texas), is the latest victim of a judicial confirmation process that has steadily become more degraded by partisan warfare in recent decades.

Senate Democrats’ treatment of Southwick will show whether they are so shortsighted as to provide their Republican adversaries with new precedents and excuses for a campaign to obstruct the next Democratic president’s liberal nominees, no matter how well qualified.

If "too conservative" is reason enough for Democratic senators to block a floor vote on Southwick, who is no right-wing culture warrior, then "too liberal" will be reason enough for Senate Republicans to do the same when the shoe is on the other foot.

The long-term cost to the country is that bit by bit, almost imperceptibly, more and more of the people who would make the best judges—liberal and conservative alike—are less and less willing to put themselves through the ever-longer, ever-more-harrowing gantlet that the confirmation process has become.

Opening Argument – Shortsighted on Judges

National Journal

Imagine that two years hence, Sen. Hillary Rodham Clinton, or Sen. Barack Obama, or former Sen. John Edwards is president. She or he will be trying to fill dozens (eventually) of vacancies on federal Courts of Appeals with liberal-leaning nominees. And perhaps one or two Supreme Court vacancies as well.

If and when those nominees face Republican filibusters or other tactics to deny them floor votes, what standing will the new Democratic president have to protest? How, for example, could Obama show his own nominees to be more deserving of confirmation than former Mississippi Judge Leslie Southwick, who is under attack by Obama and other Senate Democrats simply because liberal interest groups consider him too conservative?

Southwick, who is a professionally well-qualified and personally admirable Bush nominee for the U.S. Court of Appeals for the 5th Circuit (covering Louisiana, Mississippi, and Texas), is the latest victim of a judicial confirmation process that has steadily become more degraded by partisan warfare in recent decades.

Senate Democrats’ treatment of Southwick will show whether they are so shortsighted as to provide their Republican adversaries with new precedents and excuses for a campaign to obstruct the next Democratic president’s liberal nominees, no matter how well qualified.

If "too conservative" is reason enough for Democratic senators to block a floor vote on Southwick, who is no right-wing culture warrior, then "too liberal" will be reason enough for Senate Republicans to do the same when the shoe is on the other foot.

The long-term cost to the country is that bit by bit, almost imperceptibly, more and more of the people who would make the best judges — liberal and conservative alike — are less and less willing to put themselves through the ever-longer, ever-more-harrowing gantlet that the confirmation process has become.

Opening Argument – The Supreme Court: Place Your Bets

National Journal

A year after conservative Justice Samuel Alito succeeded liberal-leaning Justice Sandra Day O’Connor, a disagreement between two of the nation’s best legal journalists about how much President Bush has transformed the Supreme Court prompts this challenge to Court-watchers:

What will the legal landscape look like in 10 years? Make your predictions and place your bets.

In a widely acclaimed book full of revelations about behind-the-scenes battles over the Court, Jan Crawford Greenburg, now of ABC News, says that after decades of disappointment, conservatives have finally won the day. The appointments of Alito and Chief Justice John Roberts will produce a "profound and lasting alteration," Greenburg writes in Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. They and their allies will now engineer "one of the most fateful shifts in the country’s judicial landscape in a generation … with repercussions as yet unimagined," she predicts.

"I’m not holding my breath," retorts Benjamin Wittes in The New Republic Online. Wittes, an author and a guest scholar at the Brookings Institution who until recently wrote the nation’s smartest legal editorials for The Washington Post, highly recommends Greenburg’s book (as do I) for its "genuinely spectacular" reporting. But he dissents from her view that Bush has set the stage for an era of conservative hegemony.

To advance this intriguing discussion, I offer specific predictions below and invite others to offer theirs.

O’Connor’s Rightful Heir?

Newsweek

When conservative Washington lawyers who argue before the Supreme Court talk about "the Greenhouse Effect," they don’t mean global warming. The Greenhouse in question is Linda Greenhouse, the longtime and esteemed Supreme Court reporter for The New York Times. The "effect" is to subtly push Supreme Court justices to the left. Unless a jurist comes to the court with very strongly held, or even fixed, conservative views, there is a tendency to be seduced by the liberal legal establishment that d

When conservative Washington lawyers who argue before the Supreme Court talk about "the Greenhouse Effect," they don’t mean global warming. The Greenhouse in question is Linda Greenhouse, the longtime and esteemed Supreme Court reporter for The New York Times. The "effect" is to subtly push Supreme Court justices to the left. Unless a jurist comes to the court with very strongly held, or even fixed, conservative views, there is a tendency to be seduced by the liberal legal establishment that dominates at elite law schools like Harvard and Yale. Those schools produce a disproportionate number of the law clerks who generally draft opinions for the justices, as well as the sort of professor routinely tapped as a source by Greenhouse, who is regarded as a legal scholar in her own right.

That, at least, is the view of conservatives like U.S. Court of Appeals Judge Laurence Silberman, who popularized the term some years ago. The chief "victim" of the Greenhouse Effect is usually said to be Justice Anthony Kennedy, who has drifted to the left since his appointment …

NewsHour: Analysts Discuss Second Day of Alito Hearings – January 10, 2006

RAY SUAREZ: We are now joined by two court watchers who have been following these hearings closely: Jeffrey Rosen, professor of law at George Washington University and legal affairs editor at the New Republic, and Stuart Taylor, a columnist with National Journal and a fellow at the Brookings Institution.

And Stuart, Judge Alito was in the hot seat for upwards of seven hours. They covered a great many subjects during this first day of questioning. Looking at the arc of the day, how did he do?

STUART TAYLOR: Given the rather arcane rules of this game– and it is sort of a game– I thought he had a pretty strong day after a little bit of a weak opening statement yesterday beginning with the joke that fell flat.

But today he managed to duck the questions he needed to duck. He gave very reassuring answers to the questions that people were worried about. You know: yes, I respect precedent. I would have an open mind about Roe v. Wade; I believe in the right to privacy; I believe in the right to contraception, Griswold v. Connecticut. The president is not above the law. I agree with Justice O’Connor when she said a state of war is not a blank check for the executive when it comes to the rights of the nation’s citizens. The one person/one vote principle is a fundamental part of American law.

So these are all areas where he previously said things that shook some people up, and he to some extent took the sting out of a lot of those. And with the help of Republican senators, he gave some counter examples to the claims that have been made that he very rarely rules in favor of a civil rights plaintiff or a race discrimination complaint.

This isn’t to say that he has no problems, but going in the idea was that he would be confirmed unless he stumbled. I didn’t see him stumble.

RAY SUAREZ: Professor Rosen.