The U.S. Supreme Court, 2015-16 Term

October 4, 2015

First Monday in October is upon us. Tomorrow, the U. S. Supreme Court begins its 2015-16 Term. Here at Mark Rubin Writes we will follow the Court once again, relying heavily on and many other resources.

Adam Liptak’s Supreme Court Prepares to Take on Politically Charged Cases for the New York Times, today, provides an excellent overview of the coming Term. I noted in particular his three paragraphs about partisanship, relying on Neal Devins, a law professor at William & Mary. Here they are:

‘This coming term will again put into focus that the court is divided along partisan lines and that the 2016 presidential elections will be hugely consequential in shaping constitutional and other law for perhaps a generation or more,’ said Neal E. Devins, a law professor at William & Mary.

The current court is the first in history split along partisan lines, where the party of the president who appointed each justice is a reliable predictor of judicial ideology. Put another way, all five Republican appointees are to the right of all four Democratic appointees. It was not long ago that Republican appointees like Justices John Paul Stevens and David H. Souter routinely voted with the court’s liberal wing.

As a consequence of the current alignment, Professor Devins said, ‘the Roberts court has generated more marquee decisions divided by party alignment than all other courts combined.’

A very sad commentary that is! The resident of 1600 Pennsylvania Avenue directly affects the composition of the Court, assuming retirements or deaths during his term. As I have noted previously, the new president will see four of its nine justices between 78 and 83 on January 20, 2017. With Professor Devins’ observation, the stakes cannot be greater, from wherever you sit.

Linda Greenhouse wrote A Chief Justice without a Friend on October 1, also for the New York Times. Chief Justice John Roberts has completed 10 years on the Court. He talked about calling balls and strikes, an absurd notion in the best of circumstances. He also advocated for collegiality. (For details read Jeffrey Rosen’s excellent review of an interview with the Chief Justice, Roberts’s Rules, from the January/February 2007 issue of The Atlantic.)

Chief Justice Roberts has not accomplished his collegiality/civility goal. Court opinions reveal an increasingly dyspeptic Justice Antonin Scalia and a plenty “sharp with the needle” Justice Elena Kagan, the senior and junior justices, respectively. (Others have their moments too, including the Chief.) Disagreement on the Court is wholly appropriate, albeit wholly inconsistent with that silly “balls and strikes” analogy. Incivility is not, but it’s not surprising in a country in which political discourse gets sharper and less illuminating by the day.

I suspect the Chief Justice has plenty of friends, in fact. When my daughter and I saw him 16 months ago in the Court chambers, he seemed like a really nice man. There’s that power thing, too; if you’ve got it, you’ll not likely want for friends.

Unfortunately, for one side in today’s world friendly equals weak. Civility describes a squish. And even one disagreements gets you thrown off the island.

So, as the Court begins another term, expect lots of disagreements and plenty of rancor. Sadly, I suspect that’s par for the course, for the foreseeable future, at the Court and in the rest of the public sphere.

[Note: Law posts appear on Tuesday. I’m a day or so early this week because it’s First Monday in October, and because of my personal schedule. Look for the Curator Tuesday afternoon or Wednesday morning.]


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