Roberts' Potential Influence on the Court
By Gerry Daly Posted in The Courts — Comments (57) / Email this page » / Leave a comment »
Lyle Dennison on The Supreme Court Nomination Blog made the point that individual Supreme Court justices do not exist in a vacuum. They influence each other:
Each Court of Nine is different — a truism, but an absolutely reliable truism. If the Senate approves Roberts, as seems most likely at this early point, he will bring change to the Court. And, most importantly, his arrival will bring change to every one of the Justices themselves. Unless Roberts were a forgettable Charles Evans Whittaker, which he definitely is not, he has the capacity from the outset to have a noticeable impact on his colleagues and on the new Court — as O’Connor and Powell did when they began.
Shortly after Justice O'Connor announced her pending retirement, I stated in the comments over at Althouse a characteristic I wanted Bush's nominee to have:
Yes, judicial philosophy and temperment are important, as is character.
But I want the best nominee possible, so I would want another characteristic. I would want a judge who is persuasive. I would want a judge who not only would be a reliable vote, but would be the kind of judge who could be convincing to Kennedy, and occasionally to Breyer and occasionally to Souter.
A consensus builder, but one who does so by bringing others his or her direction...
Perhaps a way of getting an indication of how influential Roberts may be with other Justices can be gleaned from looking at the result of the cases he was involved in arguing.
[Continue reading below the fold.]
According to The Crimson, Roberts has argued 39 cases before the Supreme Court, winning 25 of them. With the assistance of Sean at My Election Analysis, I have been able to find 33 cases where Roberts either argued or filed a brief.
[Some caveats before continuing. First, while Sean identified for me most of the cases involved and which side Roberts argued, I did the work in finding the decisions and which way the court decided by myself without peer review; any errors in tallying the results are my own. Additions and corrections are welcomed. Further, while this analysis may show some indication of Roberts' persuasiveness, it does not attempt to show what position Roberts would have taken if he was acting on his own rather than on behalf of a client. Further, just because Justices ended up ruling either for or against his side does not necessarily mean that his argumentation was the determining factor.]
First, I wanted to separate out the unanimous decisions. While some of these may have been cases where the persuasiveness of an argument turned the tide, it strikes me as likely that in most of these the Supreme Court found things to be sufficiently cut and dried that they would have ruled in the direction they did regardless. If this is a valid presumption is up to the reader to decide on their own; I wanted to focus on the non-unanimous decisions. These cases are as follows:
| Cases won unanimously | Cases lost unanimously |
|---|---|
| Adams v. Robertson 520 U.S. 83 | Goldberg v. Sweet 488 U.S. 252 |
| First Options v. Kaplan 514 U.S. 938 | Digital Equipment Corp. v. Desktop Direct 511 U.S. 863 |
| Tyler Pipe Industries v. Washington 483 U.S. 232 | Mine Workers of America v. Bagwell 512 U.S. 527 |
| Gwaltney of Smithfield v. Chesapeake Bay Foundation 484 U.S. 49 | Eastern Associated Coal v. Mine Workers of America 531 U.S. 57 |
| Allegheny Pittsburgh Coal v. Webster County 488 U.S. 366 | |
| U.S. v. Halper | |
| Grubart v. Great Lakes Dredge 513 U.S. 527 | |
| Alaska v. Native Village of Venetie Tribal Gov't 522 U.S. 520 | |
| NCAA v. Smith 525 U.S. 459 | |
| Traffix Devices v. Marketing Displays 532 U.S. 23 | |
| Toyota Motor Mfg. v. Williams | |
| Feltner v. Columbia Pictures Television 523 U.S. 340 |
(In Tyler, Rehnquist and Scalia dissented in part.)
Second, I filtered out two other cases because how to categorize them was unclear. In Withrow v. Williams 507 U.S. 680, the result was mixed. The court affirmed in part and reversed in part (Roberts had filed an amicus advocating a reversal). On part of the reversal, the court was unanimous. In Washington v. Harper 494 U.S. 435, I was unable to determine of which side the amicus filed was in support.
This left me with a list of 15 cases where the case was close enough so that the court was divided. The following table lists the case, if Roberts' side triumphed, which Justices came down on the side Roberts argued, and which Justices came down on the other side.
| Case | Result | For | Against |
|---|---|---|---|
| Rush Prudential v. Moran | Lost | Thomas, Scalia, Rehnquist, Kennedy | Souter, Stevens, O'Connor, Ginsburg, Breyer |
| Smith v. Doe 538 U.S. 84 | Won | Kennedy, Rehnquist, O'Connor, Scalia, Souter, Thomas | Stevens, Ginsburg, Breyer |
| Barnhart v. Peabody Coal 537 U.S. 149 | Lost | O'Connor, Scalia, Thomas | Souter, Rehnquist, Stevens, Kennedy, Ginsburg, Breyer |
| Gonzaga v. Doe 536 U.S. 273 | Won | O'Connor, Scalia, Kennedy, Thomas, Breyer, Souter, Rehnquist | Stevens, Ginsburg |
| Tahoe-Sierra Preservation Council v. Tahoe Regional Planning 535 U.S. 302 | Won | Stevens, O'Connor, Kennedy, Souter, Ginsburg, Breyer | Rehnquist, Scalia, Thomas |
| Rice v. Cayetano 528 U.S. 495 | Lost | Stevens, Ginsburg | Kennedy, Rehnquist, O'Connor, Scalia, Thomas, Breyer, Souter |
| National Credit Union v. First Nat. Bank & Trust 522 U.S. 479 | Won | Thomas, Rehnquist, Kennedy, Ginsburg, Scalia | O'Connor, Stevens, Souter, Breyer |
| Jefferson v. City of Tarrant, Ala. 522 U.S. 75 | Won | Ginsburg, Rehnquist, O'Connor, Scalia, Thomas, Kennedy, Souter, Breyer | Stevens |
| Bray v. Alexandria Women's Health Clinic 506 U.S. 263 | Won | Scalia, Rehnquist, White, Kennedy, Thomas, Souter (in part) | Stevens, Blackmun, O'Connor, Souter (in part) |
| National Railroad Passenger Corp. v. Boston and Maine 503 U.S. 407 | Won | Kennedy, Rehnquist, Stevens, O'Connor, Scalia, Souter | White, Blackmun, Thomas |
| Suter v. Artist M. 503 U.S. 347 | Won | Rehnquist, White, O'Connor, Scalia, Kennedy, Souter, Thomas | Stevens, Blackmun |
| Hudson v. McMillian 503 U.S. 1 | Won | O'Connor, Rehnquist, White, Kennedy, Souter, Stevens, Blackmun | Thomas, Scalia |
| Atlantic Richfield v. USA Petroleum 495 U.S. 328 | Won | Brennan, Marshall, Blackmun, Rehnquist, O'Connor, Scalia, Kennedy | Stevens, White |
| South Dakota v. Dole 483 U.S. 203 | Lost | Brennan, O'Connor | Rehnquist, White, Marshall, Blackmun, Powell, Stevens, Scalia |
| Arkansas Writers' Project v. Ragland 481 U.S. 221 | Won | Marshall, Brennan, White, Blackmun, Powell, O'Connor, Stevens | Scalia, Rehnquist |
Aggregating the results by Justice gives the following:
| Justice | For | Against | Pct. |
|---|---|---|---|
| Brennan | 3 | 0 | 100% |
| Kennedy | 11 | 2 | 84.6% |
| O'Connor | 9 | 4 | 69.2% |
| Thomas | 8 | 4 | 66.7% |
| Rehnquist | 10 | 5 | 66.7% |
| Scalia | 10 | 5 | 66.7% |
| Souter | 7.5 | 4.5 | 62.5% |
| Marshall | 2 | 1 | 66.7% |
| Ginsburg | 4 | 3 | 57.1% |
| White | 4 | 3 | 57.1% |
| Powell | 1 | 1 | 50.0% |
| Blackmun | 3 | 4 | 42.8% |
| Breyer | 3 | 5 | 37.5% |
| Stevens | 5 | 10 | 33.3% |
These results are undoubtably influenced by the type of cases that Roberts would generally be involved in; few of these cases involve social issues. However, in the cases that were brought before the Court where the result was not unanimous and Roberts was involved, it is clear that Justice Stevens was not often swayed by his arguments. However, the percentage of non-unanimous cases where Justice Kennedy sided with Roberts' arguments is notable. The sample size is small, but there is some indication that a Justice Roberts might have considerable influence on Justice Kennedy-- the primary swing vote on the court.
(Correction: I had the results for South Dakota v. Dole reversed, which affected some of the percentages. This has been fixed. Also, I had Feltner v. Columbia Pictures and Rice v. Cayetano backwards, which are fixed.
[Crossposted at DalyThoughts.]
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Roberts' Potential Influence on the Court 57 Comments (0 topical, 57 editorial, 0 hidden) Post a comment »
John Roberts is a Catholic. He said that if a constitutional ruling which he makes will go against his religious beliefs he will just recuse himsself. What do you think of that?
Does this disqualify him to be a SCOTUS?
I remember a West Wing episode wherein President Bartlett who is a Catholic was asked to stay an execution of a deserving felon. Even his Bishop pleaded with him. In the end, he chose to uphold the constitution and just made a confession to his priest.
And one should never take religious instruction from Aaron Sorkin.
The answer to your questions:
(1) At the Supreme Court level, this is more or less meaningless.
(2) Very noble, probably right, probably needless.
(3) Yes, because there's only one of him. He could be a JSCOTUS.
(4) There was no need to confess to his priest. However, the folks who write the West Wing are either not Catholic, or adhere to the teachings of the Supersecret Pope, Pius XXIII, so they don't know that the rest of us recognize a difference between the Church's teachings of a prudential nature and those on faith and morals.
that will help Justice Kennedy is a psychiatrist.
Whew, that's a relief because I was worried when I couldn't find "Qumar" on a map.
But people don't race at high speed through the halls of 1600 Pennsylvania at all hours, never walking, always with grim looks on their faces.
I think the greatest pop culture mystery of the last ten years has nothing to do with Friends or the cancellation of Angel, but why that free advertising for the DNC constantly drew such high ratings from conservatives and normal humans who should've known better.
You should never make L.A. Law look realistic. Never.
You can argue that even if Roberts wasn't arguing for something he would specifically find for (after all attorney's argue for their clients not neccessarily their personal beliefs) he obviously has the ability to persaude others to his way of thinking.
Also, one thing I remember saying when he was nominated that I thought his experience arguing before the court was probably better experience than sitting on the bench of 5 or 10 years. Judges who are promoted quickly, and whose previous lawyering didn't involve much appellate work, probably don't have to work on their ability to argue and persuade as much as a lawyer who does a lot of appellate work.
I also think his experience will allow him to eat Chuckie Schumer and spit him out for breakfast, when Chuckie starts tossing out his "questions."
I just thought it was funny that the Mayor of Sunnydale apparently survived his Ascension and became the Secretary of Agriculture.
That and you have to know that any show with Special Guest Star Ted McGinley is going to be high quality.
We have no idea what Roberts has said behind closed doors. We know what the LA Times claims sources say was said by Roberts in a Meeting with that self loathing Dick Durbin.
But being Catholic should not be a disqualifying factor.
...Yes, Perhaps this is because Kenneday and Roberts have very similar views. I believe the proper list from Conservative to liberal is:
- Thomas
- Rehnquist
- Scalia
- Roberts
- Kennedy
- Breyer
- Scouter
- Stevens
- Ginsburg
I think Roberts is a good choice. I hope to see Ginsburg or Stevens retire, and a conservitive to replace...so that Roberts will be the new middle of the Court.
Also, I do believe that Kennedy would join a 6-2 court (to make it 7-2) to overturn Roe. I also think Kennedy would role back abortion slowely (even with the hope of slowly ending Roe). I just think he is afraid to do it all at once.
I also, however, think he feel betrayed by O'Conner and Souter for the partial-birth abortion thing.
I agree, that on Abortion and a number of other issues, Kennedy is easily influenced.
John Kennedy, Sen Kerry were Catholics....so No I dont feel being Catholic will disbar you as long as you are willing to uphold the Constitution despite it menaing going againsts your Church.
But if there is a conflict between the Constitution and your Church, a Government official, whther he is a president or SCOTUS should uphold the Constitution, right?
However if one is not able to choose between upholding the Constitution or obeying his Church and would just recuse himself...is he a suitable candidate for SCOTUS.
I am speaking on general terms.
we must balance the court, not fill it with conservatives. Do you think the half of the country who voted for Kerry will agree with having a conservative-only court? I sure won't. The day the SCOTUS becomes heavily either conservative or liberal, is the day this country is doomed.
it turns into a religious test, and "good" Catholics need not apply.
I don't think it should matter how religious or not religious a justice is to sit on the court.
We do not demand that anyone who is extremely secular and/or liberal be prohibited from serving, because they might decide to impose their liberal beliefs on the court.
Sorry, but the important thing in a justice is that they interpret the constitution with great care, and do not impose their own beliefs or feelings onto it.
I actually find you will see far less imposition from a conservative Catholic who is an originalist than you will from a Ginsberg (who is very liberal, and I haven't got a clue what her religious belief is, which should be a telling point).
I don't think the faith of the justice should matter on whit, if they are qualified to serve, and this talk of Catholics (or conservatively religoius) as being possibly incapable of serving is scary to me. I think our country will have made a grave error the day we damand that only Cafeteria Catholics and the nominally religoius are fit to serve.
he isn't always on the right side, but with Abortion while I am not convinced he would overturn Roe, I am convinced he would be more than willing to roll back the cases that make restrictions so difficult to implement, and I would love to see them revisit the issue of the "health" exception.
I think Kennedy will be there for all those, the question only being will Roberts be there.
I also think Breyer is a pretty strong moderate and it is always possible he may be willing to do some roll backs on Roe, if he can be persuaded.
Ginsberg, Stevens and Souter are going to be Roe all the way, but I think on some issues a 6-3 is more than a possibility.
Start with the basics -- any of us, Catholic or Muslim or agnostic -- would presumabably refuse to violate our basic ethical code based on some professional duty. And that is a good thing -- a soldier shoud disobey an order to shoot an innocent civilain child. The last thing I want on the Supreme Court is a person who thinks "following orders" is a good excuse for commiting atrocities.
But what American law is a Supreme Court justice constrained to obey, that a good Catholic may not obey? I don't see how the delemma will ever actually arise.
I imagine the Senator wants to create the misconception that Roberts' legal rulings will be based on his religious views, not a fair reading of the law. But that is not what Roberts said; and I know of nothing in Catholic teaching that suggests the Church would seek such control over a judge's rullings (pro-abortion legislators are distinguishable). Frankly, it seems to me that in the last 30 years it is the non-Catholics who have most often, and most dramatically, sacrificed a fair reading of the law to their personal religious/moral beliefs.
Sorry, but the important thing in a justice is that they interpret the constitution with great care, and do not impose their own beliefs or feelings onto it.
I think that is what the poster was worried about.
"conservative" only court.
Also, there are more than enough moderates on the bench presently, and I actually think the people would like to see a conservative court, one that moves a little more slowly, and is more careful, something I don't think the Warren court can be remembered for.
But there are really only three (and one of those is more pragmatic) originalists on the court, two/three consistent liberals and the rest are moderates.
I think the court could use a shift to the right.
and private practice of my faith. Are you saying if you are a Southern Baptist, Catholic, Episcopalian,Jew, Muslim or ANY faith in practice and personally do not believe in divorce, or abotion, I should be put to a litmus test as to my suitability. If you take it a step farther you seem to intimate that only agnostics or athiests are suitable for nomination to SCOTUS... Correct me if I misunderstand.
Or tell it to Bill Clinton who seemed to have no problem with replacing moderate justices like White with radicals like Ginsburg when his party controlled the House and the Senate.
I suppose the Senator's question is really about abortion. On that issue, it bears remembering that Judge Roberts testified in his Court of Appeals confirmation hearing that he viewed Roe as "settled," and would have no problem faithfully applying it in cases before him. So again, how is this new job going to to force Roberts to choose between obeying his religion and upholding the Constitution?
Thought experiment -- between the times of the Dred Scot decision and the 13th Amendment, the "law" in America required that runaway slaves be returned to their masters. During that era, how would we have answered a question as to our undivided loyalty to following the law?
would be:
Does the constitution allow others to disagree with you? What the judges personal preferences are shouldn't matter, as long as they are not inclined to impose them on others.
Forget conservative or liberal. The country would be far better off if only strict constructionists were on the bench. If you want to call that conservative, then go ahead.
What is key about such a court is that it does not prevent a liberal agenda from being put forward; it only requires that the liberal agenda be enacted by law and/or amendment. Such a court, for example, would uphold gay marriage rights, as long as they were legislated. Abortion? Roe vs. Wade might go, but they wouldn't outlaw abortion, either. Affirmative action? They might strike it down, but a constitutional amendment would correct that.
In contrast, an activist court of any ilk can circumvent the will of the people no matter how strong the majority may be.
If a person's religious opposition to divorce is so total that he cannot in good conscience sign a divorce decree, it seems to me he cannot become a judge; or at least not one responsible to decide divorce cases. But again, I highly doubt Judge Roberts would feel unable to rule on such cases, even though the Catholic Church is strongly anti-divorce.
He said that Roe v. Wade was settled from the perspective of an appeals court judge. As an inferior court judge he is required to follow clear Supreme Court precedent. (Well, I suppose his is not required to, but it would be wholly unproductive and disrespectful of the process he reveres to do otherwise.
As a Supreme Court justice he now has the jurisdiction to render decisions that alter or even reverse precedent. And I don't think we know just how wedded Judge Roberts is to precedent. Is he closer to Thomas or to Scalia in that sense?
For starters, I am a pro-Life Catholic......and just pragmatic about Roe V Wade(especially overturning it really does not make abortion illegal)
However, let us give a specific example...
Roberts after studying the Roe V Wade decision, intellectually feels that the decision was constitutional and believe that it should not be overturned.
But As a devout Catholic, he is against Abortion.
What should he do?
Recuse himself or uphold the constitution.
My point is if you are a SCOTUS Justice you have to publicly state that you are willing to to uphold the Constitution despite it going against your Religion.
"The exchange occurred during one of Roberts' informal discussions with senators last week. According to two people who attended the meeting, Roberts was asked by Sen. Richard Durbin (D-Ill.) what he would do if the law required a ruling that his church considers immoral. Roberts is a devout Catholic and is married to an ardent pro-life activist. The Catholic Church considers abortion to be a sin, and various church leaders have stated that government officials supporting abortion should be denied religious rites such as communion. (Pope Benedict XVI is often cited as holding this strict view of the merging of a person's faith and public duties).
Renowned for his unflappable style in oral argument,* Roberts appeared nonplused and, according to sources in the meeting, answered after a long pause that he would probably have to recuse himself.*"
to impose"? The Constitution was never intended as the sole moral authority of civil society. Every individual brings to society an individual faith, or set of principles. A democracy or democratic republic allows the free expression and belief in those principals within the rule of law.
I might turn your question around "Does the Constitution allow you to disagree with others"?
Justice Scalia, also Catholic, privided long and fascinating comments on this topic:
http://pewforum.org/deathpenalty/resources/transcript3.php3
The upshot -- being a good Catholic probably does not preclude a judge from joining in a decision upholding Roe. Of course, a good Catholic may find Roe so repugnant that he does not want to take part in affirming it: in that case, Scalia suggests, a judge should step down.
I think there are two definitions of conservative in this context. One, being a slow progression. The other, being a Thomas-like understanding of the document.
While many might like to see a slow-moving Court, I'm not as sure that there is a sizable number of Americans that would embrace Thomas' desire to return us to the 1868 understanding of the document.
After reading RedState over the past few weeks, I've begun to wonder what an originalist vision of America looks like and I'm not convinced that its an America you could sell to the American people. For example, I wonder if an expansive reading of the Commerce Clause has been beneficial to the American economy. I also wonder if making red states redder and blue states bluer is necessarily a good thing. I suppose my question could be boiled down to this: what are the pros and cons of de-federalizing America? This is, of couse a policy rather than a constitutional question.
Anyways, I don't mean to hijack the thread on an unrelated note, and I hope I didn't cite too many known facts. Was just wondering, is all.
Before becoming Pope, then Cardinal Ratzinger expressed this opinion (which in my view would not necessarily require a judge to vote to overrule Roe, any more than it required a judge, before 1973, to rule that every abortion is a crime, even if the legislature passed no laws against it:
"Regarding the grave sin of abortion or euthanasia, when a person's formal cooperation becomes manifest (understood, in the case of a Catholic politician, as his consistently campaigning and voting for permissive abortion and euthanasia laws), his Pastor should meet with him, instructing him about the Church's teaching, informing him that he is not to present himself for Holy Communion until he brings to an end the objective situation of sin, and warning him that he will otherwise be denied the Eucharist.
http://www.priestsforlife.org/magisterium/bishops/04-07ratzingerommunion.ht
m
whether Roberts would allow his releigious beliefs to interfere with his duty to uphold the Constitution. That conflict is clearest at the Court of Appeals, where Roberts had a constitutional duty to follow Supreme Court decisions. If he reaches the Supreme Court, Roberts -- like the other judges -- has no duty whatsoever to refrain from overruling or modifying prior decisions. Shoot, every year the Court overrules some decision it made before; why should Roberts be more restrained than the other judges, if he believes the Court was wrong on the law?
I might turn your question around "Does the Constitution allow you to disagree with others"?
Turning the question around doesn't matter. It's all about what is constitutional, not the opinion of the person judging.
I owe a hat tip to this essay from Althouse for the Scalia link posted above.
Roe is law - Roberts will NOT be sitting on ANY cases that seek to overturn Roe as written into law. The concept of stare decises or the precedent of upholding Roe in many subsequent rulings will prohibit (IMHO) any change in my lifetime or for many, many years to come. No 5/4 decision will come out of any SC to change this law. It will take a 7/2 decision, at the very least.
"Intellectually feeling" is an oxymoron. As a capable jurist he is obligated to the law. As a human being, or practicing Catholic he may be revolted by abortion.
Look up John Jay and his numerous findings directly related to scripture and the teachings of Christ.
Those were the "deeply held beliefs" of our founding fathers as Mr. Durbin/Schumer like to code their words.
Somehow we survived that first court and yes, Brown vs. Board of Education should have been overturned but has it brought us any closer to the King dream within education?
Are not now the new education czars the teacher's unions who want to water down the reading, writing and arithmetic that served us for the most part so well?
If you're asking an envagelical or pro-life Catholic or Protestant to check his views at the court house door, you might also just as well ask for 50 of the names of the founders to be blotted from the textbooks.
Oh..that's right the left IS already asking for that.
"Roe is law"
I thought it was just a court ruling, I can't seem to find any "Roe Law"......
Ginsburg is Jewish.
Also, Roberts has said that he would make decisions ignoring his personal faith.
a balenced court come into question? America has hosted a very conservative court during FDR and the New Deal era, and we had an extremely liberal court during the warren court...
and in the sense of a court that reflects the american population, meaning 50% of the court are women, and 13% of the court is black is also unfounded (which is why i was so pleased with the nomination of roberts) because i believe that the consitution and the founding fathers wanted the most qualified individals to rule on the court, not the most diverse...
bush is a conservative, therefore it is idiotic for liberals or democrats to expect him to nominate a "consensus candiatate", in other words, a candidate in which the democrats wished they had chosen
The problem with that list is that Scalia is much more conservative than Rehnquist. I'm not sure where to put Roberts yet, but he might be above Rehnquist, too.
Perhaps this is because Kenneday and Roberts have very similar views.
This doesn't make any sense at all. Roberts was arguing those cases for his clients; they do not represent his personal views.
Roe was a ruling, that struck down pre-existing state law restricting a woman's right to abortion, privacy...
Hmmm Roberts may well feel constrained by stare decisis. But the Court reverses itself all the time, despite lip service to that doctrine: famously, overruling its 1980's decision allowing states to criminalize sodomy. Also, it seems to me that the Court, having taken an abortion case almost every year, will take another in the next few; and someone will eventually argue that Roe should be overruled, just as Roberts himself argued in briefs years after Roe was decided. And I am quite sure that, if 5 justices want to overturn Roe, they will not keep their views quiet and wait for 2 more anti-Roe judges to join them.
that only strict constitutionalists should be on the bench...a majority of 5 idealists could change the way that america functions, in that a strict constitutionalist would only decipher the constitution in the way that the founding fathers could decipher, but liberal activist judges are able to twist the constitution into anything they wish
because it's good television.
Personally I find the politics of the West Wing to be of the College Freshman variety. But I always enjoyed the show because they did give a snippet of a world most of us have very little knowledge about.
I suspect that if the show was made witha President from teh other side of the ditch it would be equally populat and have the same demographics.
Because it implies he is going to recuse himself if his constitutional ruling will be against his obedience to the Catholic Church doctrines.
No one reads it until its time to change the lining in the bird cage.
You seem willing to accept blindindly the words of Dick Durbin, and the LA Times.
They can't touch Roberts for his qualifications.
they can't touch Roberts on his decisions
So all they have to get Roberts is the dirty smear tactics of vile self hating Catholics like Dick Durbin. They are attempting to slime the man and what is the best way to do that? To have unnamed sources claim that Roberts said he would put church above the Constitution.
Hey, Maybe it's true. Maybe Roberts said this. It is possible, but is it believable?
Now Dick Durbin. The man who compared American Soldiers to war criminals. He is a believable source? Does anyone really believe that the left would not do anything to smear Roberts?
For most of the past 70 years we have had a predominantly liberal court.
For a few years there after Thomas was confirmed, and before Whizzer White left, it was a moderate to slightly conservative. Then Clinton got to put 2 solid liberals, especially Ginsburg on the court.
No one cried for Balance when Whizzer White left and we got an incredibly liberal justice in his place
Same with Stevens and Ginsburg. The only really "convinceable" justices on any issues dear to conservatives are Kennedy and, to a much lesser extent, Breyer.
I was a fan of Breyer's after reading his Regulation and Its Reform, a significant criticism of the regulatory state he wrote in the early 80s. I wouldn't be surprised if he ended up becoming a more signficant swing vote on some issues. He did side with the conservative block on one of the recent 10 Commandments cases.
A Spokesman for Dick Durbin said that the LA Times article was Wrong
Nothing like a good smear campaign
He is definitely a liberal, but he isn't the leftie that Ginsberg and Stevens (and to a good degree Souter) are. He is really pretty moderate, and I suspect persuadable-since a moderate sits in the center, they probably can see both sides a little less black and white than a liberal or conservative judge does.
Would the results be the same for Souter if Roberts' arguments were spread evenly over Souter's tenure? I don't see the dates here but I recall that the bulk of Roberts' arguments were in his years in the SG's office, which I believe ended in 1992. Souter didn't come out as a full-out liberal his first year or two on the Court.
Anyway, great work as always, Gerry.
It is certainly true that the members of the Court influence each other. But the eight current justices whom Roberts will be joining all have a long and established track record. As in any group dynamic, it is easier to influence a member of the group before he has adopted a clear position on the particular issue under discussion. FOr the other eight justices, few of the fundamental issues are still open in that sense. At the margins, where settled principles are being applied in new contexts or where the question is whether some constitutional holding should be extended or narrowed, there will probably be greater room for the kind of influence you posit. With respect to the constitutional principles themselves, however, I am afraid that it is wishful thinking to expect that the addition of a new justice will cause any of the other justices to change his views.
If the addition of Roberts to the Court has any influence on Justice Kennedy, the most likely explanation is that there are few fundamental principles of constitutional adjudication to which Justice Kennedy is committed. Having no anchor, he is the most likely to drift. But even with him, I would not count on any real change on the major cases (abortion, federalism, the reach of Congressional power under the Commerce Clause, affirmative action/equal protection, etc.).
though Breyer is about as much a disappoint to them as, say, a Kennedy or O'Connor would be to us.
I'm still waiting for the first "Souter" from the Left. (Or even the first Warren, Brennan, or Blackmun.) It may be a long wait.... the closest is probably Byron White, the Kennedy appointee, in later part of his career on the S. Ct. Before that, as I've posted before, you really have to go back to early in the 20th Century to find a Democratic appointee who turned out to be a conservative on the court.
Some of the New Deal FDR judges might be considered conservative in our time, since they would probably oppose a lot of the Left's social agenda being imposed by the courts. However, in their own time, on economic issues like the interpretation of the Commerce Clause and limits on federal power, they were definitely creatures of the left. Pre-1960s it's hard to say the Supreme Court was actively involved in social issues the way it really aggressively became after Brown. (Since Brown was a good idea, that's been the rallying cry for every bit of leftists judicial activism since then - as if being right once makes you always right.)
To be honest, Crank, I went in to this looking for his impact on one Justice (Kennedy) and in accumulating the data figured I might as well do all the others.
The original post over at Althouse which got me started was one by her stating she thought that another conservative on the bench would drive Kennedy leftward. I had mentioned that I hoped Bush would nominate someone persuasive.
Then Roberts was nominated, I saw his success rate in arguing in front of the court, and I went to see how he did specifically with Kennedy.
The rest, as they say, is history.
Oyez.org has a marvelous collection downloadable audio files (aka podcasts) of oral arguments given before the Supreme Court. They've posted several in which Roberts appears at:
http://www.oyez.org/podcast/?p=9
I've listened to them and my impression is that he comes exceptional well prepared and argues his side well, talking slowly and concisely, limiting his claims to what is needed to win. Perhaps his greatest strenth is a knack for not disagreeing any more than necessary with a judge's questions. Even when baited by one of the pro-Roe judges in Bray v. Alexandria Clinic, he kept his cool.
It's also fascinating to listen to the different judges as they probe, question and comment.
I'm not going to bother reading through these cases, but Roberts seems to do a pretty good job of getting Souter to side with him. Also, as far as Souter is concerned, it doesn't matter if the issue is a social one or not, he's been a total failure on the court with regard to all legal issues from a conservative perspective.