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Over at Slate's "Breakfast Table," Walter Dellinger and Jack Goldsmith have credited the composition of the docket for explaining why, for a time this term, the court looked like it had gone moderate on us and forgotten its 5-4 habits. (Give Tom Goldstein points for predicting much of this back in September.) Now that the term is over, of course, we know that it ended in familiar 5-4 fashion in the big-bang cases (Gitmo, child rape, guns). We know from the stat masters at Scotusblog that 17 percent of cases split 5-4 this year—a lot less than last year, which is the outlier at 33 percent, and between somewhat and a bit less than the previous several terms. After Scotusblog factored in the rarity of 9-0 decisions, it called this term "the most divided in recent history.”
That may not be how most of us will remember it, but in the NYT, Linda Greenhouse makes the same point in singling out as the term’s main theme the enduring influence of Justice Kennedy. Jeffrey Rosen, on the other hand, in TNR sees the term as a lesson in division minimized and writes another love letter to Chief Justice John Roberts in which he calls my much more skeptical judgment of Roberts “premature.” I do give Roberts props for a vote this term—he was in the majority in the 7-2 decision that found a right to sue for retaliation in the Reconstruction-era law written to give former slaves equal rights to make contracts. In that case, Roberts went with precedent over textualist upheaval. But one vote doesn’t a uniter make; in the biggest rulings of the term, Roberts was on his usual side of the ideological split. My feeling about the chief justice continues to be that he’s powerful precisely because he’s smoother than Scalia and Thomas. He doesn’t alienate his colleagues with inflammatory rhetoric like Scalia or bulldoze precedent like Scalia and Thomas. He is more careful. That means he’ll need more time to bring about major shifts in the law, on some fronts, but his votes continue to suggest that he will move the court to the right when he can. I still don’t see the case for supporting Roberts’ nomination and opposing Alito’s, or simply for heralding Roberts as a bullet that liberals dodged, as Rosen puts it. He sees Roberts’ narrow opinion writing as “the only thing standing between them and a Court eager to roll back progressive reforms.” Isn’t there more evidence, again this term, for that thing being Justice Kennedy?
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Adam, I meant neither to endorse "a longtime practitioner" nor to exclude law professors or sitting judges from consideration for court vacancies. Persons holding any of these positions may qualify as "lawyer's lawyers" or, indeed, "judge's judges."
Fitting those two labels is in part a matter of experience. But it is more importantly a matter of temperament—a matter both of the means a person employs to solve a question of law and the manner in which the person explains that resolution in an opinion. There are longtime practitioners who are not lawyer's lawyers. There are members of the bench who are not judge's judges. There are practitioners who display judicial temperament even though they have never donned black robes. Various law professors fit various categories.
The Stevens example is set forth simply to provide food for thought about what may happen when a president gives certain qualities priority over partisan political concerns.
With regard to your specific references, I am not persuaded that the nomination of John G. Roberts Jr., for whom I have great respect, serves as an equivalent example. His intellect, wit, and dignity indeed are welcome additions to the court. But the man who is now chief justice of the United States served in the executive branch, and that experience alone sets him apart from Stevens. Accounts like those in Jeffrey Toobin's The Nine (2007), moreover, suggest a greater ideological bent than was evident in Roberts' nomination hearings; and correct or not, a sense among some Democrats that there was such a bent no doubt underlay the "nay" votes mentioned in the Los Angeles Times article that spurred this blogthread. (This too sets Roberts apart from Stevens: 1975 predictions by U.S. Rep. Bella Abzug, D-N.Y., and the National Organization for Women that Stevens would do harm to women's rights did not convince a single senator to vote against him.) Finally, not all the chief's opinions have adhered to the "balls and strikes" metaphor he famously pitched when seeking nomination; last term's Seattle School District and this term's Medellín may be said to have set precedent as much or more than they followed it.
Though we may exercise a blogger's prerogative of contributing our two cents, we cannot be certain of what either presumptive presidential nominee will do unless and until he has the power actually to make a judicial selection.
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Harris County, Texas, Judge
Caprice Cosper has set Aug. 5 as the date for execution of José Ernesto Medellín, whose bid for relief the U.S. Supreme Court rejected in a 6-3 decision issued at the end of March.
At issue in
Medellín v. Texas was Article 36(b) of the 1963
Vienna Convention on Consular Relations, which requires law-enforcement agents to advise noncitizen suspects of their right to contact their consulate (prior posts
here). The enforceability
vel non of that article had been the subject of considerable litigation in the United States and in the International Court of Justice. In
Medellín—involving a death-row petitioner who, like many persons arrested in the United States for decades after America joined the treaty regime, never was advised of his consular-access rights—the Supreme Court was called upon to consider:
- Did President George W. Bush overstep his constitutional authority by instructing state courts to give to defendants like Medellín "review and reconsider[ation]" of their cases, as mandated by the International Court of Justice in Mexico v. United States (Avena) (2004)?
- Must a court in the United States honor the United States' treaty obligation by itself enforcing the ICJ's decision?
Both issues having been pressed, the court decided both. Treating the latter question first, Chief Justice
John G. Roberts Jr. answered "No," in an opinion that interpreted precedents on whether a treaty provision is self-executing more narrowly than they were treated in, for example, the
Restatement (Third) of the Foreign Relations of the United States (1987). The answer to the former question was "Yes"—in telling a constituent state what to do, the president had violated the Constitution. The dissent of Justice
Stephen G. Breyer relied on the earlier view of nonself-execution doctrine. But to no avail; Breyer was joined by only Justices David H. Souter and Ruth Bader Ginsburg. (
Margaret E. McGuinness'
ASIL Insight here; prior Convictions posts on the decision
here and
here.)
And thus did Medellín this week return to a Texas courtroom.
At this Houston hearing, Medellín's attorneys—
Sandra Babcock, clinical associate professor of law and clinical director, Center for International Human Rights, Northwestern University School of Law,
Donald Donovan of New York's Debevoise & Plimpton—sought to delay execution. "This is a case whose effects go far beyond this courtroom," Babcock said. Donovan added, "This country is committed to the rule of law. We have a legal obligation. We should comply with it."
"I did not intend to hold a hearing. I did intend to set an execution date."
One suspects that this was not the "further appropriate action by the State of Texas" that Justice
John Paul Stevens had in mind when, agreeing with Breyer's view of the nonself-execution doctrine but disagreeing that its threshold had been met, he concurred in the court's judgment in
Medellín.
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