Supreme Court: Courting Conservatives

Last year's "hyperpartisan" Supreme Court produced a "higher share of 5-4 decisions than any term in the last decade." Despite Chief Justice John Roberts's promise to seek greater consensus, 24 out of 68 decisions were resolved by a 5-4 margin.

OCTOBER 2, 2007 by Faiz Shakir, Amanda Terkel, Satyam Khanna,
Matt Corley, Ali Frick, and Jeremy Richmond
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Courting Conservatives

Last year’s “hyperpartisan” Supreme Court produced a “higher share of 5-4 decisions than any term in the last decade.” Despite Chief Justice John Roberts’s promise to seek greater consensus, 24 out of 68 decisions were resolved by a 5-4 margin. As The New York Times notes, “The Roberts bloc has not adhered to any principled theory of judging. The best predictor of how they will vote is to ask: What outcome would a conservative Republican favor as a matter of policy?” “It is not often in the law that so few have so quickly changed so much,” said Justice Stephen Breyer in a high-profile dissent at the end of the last term. This year’s term promises more of the same, with Justice Anthony Kennedy once again the pivotal swing vote. While this Court’s docket contains cases that could potentially strike Kennedy’s “individualistic, even slightly liberal chords,” the four-person Roberts bloc will likely continue to go out of its way to issue activist conservative rulings.

PUSHING FORWARD A REAGAN-ERA AGENDA: During their nomination hearings, Robert promised that he harbored “no agenda,” and Justice Samuel Alito claimed that the judiciary must operate in a “neutral fashion.” But Roberts and Alito, along with Antonin Scalia and Clarence Thomas, “form a solidly conservative bloc that votes together time after time and reaches the results sought by political conservatives.” Conservatives called last year the “best Supreme Court term ever” for big business. It’s unsurprising that Roberts and Alito, both Bush appointees, vote together. Both men also served under Attorney General Edwin Meese in President Reagan’s Justice Department, which famously “released a series of documents” in the 1980s outlining a long-term agenda to change the Court’s interpretation of the Constitution. As a new analysis by the Center for American Progress notes, the Guidelines on Constitutional Litigation ordered Justice Department litigators to advance a rigid view of the Constitution, “listing decisions it viewed as ‘consistent’ and ‘inconsistent’ with the Reagan administration’s interpretation of the nation’s founding document.” Similarly, another document, The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation, predicted “what constitutional questions would be controversial during the 1990s” and “suggested the administration’s preferred answers.” Roberts and Alito, now joined by Scalia and Thomas, are carrying out this Meese agenda, striking down abortion rights, access to justice, and voluntary school desegregation.

ROLLING BACK DISCRIMINATION PROTECTIONS: Last week, with little notice, the Court agreed to hear CBOCS West v. Humphries, which examines whether a statute that prohibits racial discrimination in employment also prohibits retaliation against those who complain of such discrimination. Not too long ago, the Court may have sided with the employees. Two years ago, it ruled 5 to 4 that “Title IX, a law that bars sex discrimination in schools, also covers retaliation. Justice Sandra Day O’Connor wrote the majority opinion.” But her successor, Alito, would likely have been one of the dissenters. It is rare for the justices to hear a case when the issue has been considered by multiple courts of appeals, all of whom are in agreement. But the Roberts court agreed to take Humphries even though “every federal appeals court to consider the issue has agreed that the statute does apply to retaliation,” a move that suggests the case may be used for “advancing a particular agenda.”

THE ‘SUPREME REALM’ OF JUSTICE KENNEDY: Of the 24 cases resolved by a 5-4 margin last term, Kennedy was in the majority in every single one. In all of the 68 cases the court decided by signed opinions, Kennedy dissented only twice. Underscoring this dynamic, the Christian Science Monitor noted that the Court “might just as well be called the supreme realm of Justice Anthony Kennedy.” There is no guarantee that Kennedy will consistently vote with the conservative bloc again this term; some analysts predict that “the highest-profile cases this year are likely to bring a broader mix of both liberal and conservative victories.” For example, in Baze v. Rees, the Court will examine current methods of execution by lethal injection that may cause severe and undetectable pain. The New York Times notes that Kennedy, “who is concerned about death penalty abuses, may provide the fifth vote to hold that these executions violate the Eighth Amendment ban on cruel and unusual punishment.”

HEARING FOR HABEAS CORPUS RIGHTS: One of the most prominent cases the Court will be hearing is “a challenge by inmates at the U.S. naval base at Guantanamo to a federal law limiting their access to courts.” Last year, the justices refused to hear the case. But in “an action without modern precedent,” they reversed course and three months later agreed to take up the case. According to The New York Times, “the development strongly suggested that a majority of the court retains concerns” about the current detainee system, because “the reconsideration required the votes of five justices, instead of the four ordinarily needed to grant a case.” In both 2004 and 2006, Kennedy joined his colleagues and struck down the “Bush administration’s claims of unlimited authority over prisoners in the government’s war on terror.” In response, the conservative 109th Congress passed a law sanctioning Bush’s program and denying the right of habeas corpus to detainees. “The court took this case to make a larger statement of who we are as a people,” said Neal Katyal, a law professor at Georgetown Law Center, who also represents a Guantanamo detainee in a pending case.


ADMINISTRATION — PUBLIC OVERWHELMINGLY OPPOSES BUSH’S FOREIGN AND DOMESTIC PRIORITIES: A Washington PostABC News poll released today shows that almost seven in ten Americans “oppose fully funding President Bush’s $190 billion request for the wars in Iraq and Afghanistan….with 46 percent wanting it cut sharply or entirely.” The poll shows most Americans are upset by Congress’ inability to pass meaningful legislation to change policy in Iraq, but “by a 2 to 1 margin, those who see little accomplishment in Congress’s first nine months blame the inaction on Bush.” The poll also highlights the strong bipartisan support for the recently passed State Children’s Health Insurance Program expansion. “Eighty-one percent of Democrats, 69 percent of independents and 61 percent of Republicans are in favor” of the legislation that Bush has threatened to veto. These positions place Bush on the “wrong side of public opinion on upcoming foreign and domestic policy battles.”  The poll also measured “Bush’s approval rating at 33 percent, equal to his career low in Post-ABC polls.”

ETHICS — BLACKWATER CEO ERIK PRINCE’S RIGHT-WING TIES RUN DEEP: Erik Prince, the CEO of Blackwater USA, is set to testify before the House Oversight and Government Reform Committee today, after the committee issued a stinging memo yesterday revealing that Blackwater employees who engaged in shooting incidents in Iraq had fired first 84 percent of the time. The controversial firm, which was involved in a shootout in Iraq last month that left 11 Iraqis dead, has long-standing ties to right-wing causes. Prince’s father, Edgar Prince, “was instrumental in the creation of the Family Research Council, an influential right-wing Christian group. Furthermore, Erik Prince is the vice-president of the Edgar and Elsa Prince Foundation, a group founded by his parents that “gave at least $470,000 to the FRC and $531,000 to Focus on the Family,” a conservative Christian group run by James Dobson. Prince has also donated hundreds of thousands of dollars to conservative causes including the American Enterprise Institute and the Prison Fellowship Ministries.

IRAQ — ANALYSTS’ ASSESSMENT OF IRAQ CONTINUES TO DIFFER FROM PETRAEUS: When Gen. David Petraeus testified before Congress, his statistics on violence in Iraq differed greatly from those of government watchdogs and press accounts. Bloomberg reports today that defense analysts continue to question the administration’s portrayal of the situation in Iraq, particularly in the southern part of the country. For example, Petraeus “told two Senate committees that Shiites in the south were working out an ‘Iraqi solution’ to their problems and the British had done a ‘good handoff’ to Iraqi troops in Basra.” But currently, there is a sectarian struggle for power in Basra and the “security environment in southern Iraq took a notable turn for the worse in August.” The Shiites “are struggling for money and power in a form closer to criminal gangs than religious or political groups,” observed Anthony Cordesman of the Center for Strategic and International Studies. In contrast, Petraeus stated, “There is an accommodation down there right now that is the kind of Iraqi solution to problems in the South that, you know, is mildly heartening.” “I don’t know which source he’s using,” said Government Accountability Office Comptroller David Walker last month of Petraeus’s statistics.


The Senate voted 92-3 yesterday to “pass a defense policy bill authorizing another $150 billion for the wars in Iraq and Afghanistan.” While the Senate policy bill authorizes the money to be spent, it does not guarantee it. “Bush will have to wait until Congress passes a separate appropriations bill before war funds are transferred to military coffers.”

Ferdowi University yesterday invited President Bush to travel to Iran and “speak on campus about a range of issues, including the Holocaust, terrorism, human rights and U.S. foreign policy.” The invitation “asked Bush to answer questions from students and professors ‘just the same way’ that Ahmadinejad took questions ‘despite all the insults directed at him.'”

The Anti-Defamation League is calling on Sen. John McCain (R-AZ) to “reconsider and withdraw” his comment over the weekend that the Constitution established America as a “Christian nation.”

In his opening statement today, Blackwater Chairman Erik Prince will tell the House Oversight Committee that his company and its employees are victims of a “rush to judgment” about a shootout in Baghdad last month. Though Prince says Blackwater employees “acted appropriately,” the Iraqi government has concluded that they were “unprovoked” when they opened fire.

British Prime Minister Gordon Brown has announced that Britain will withdraw 1,000 troops from Iraq by the end of the year. “Forty one British soldiers have been killed this year, the most since 2003.

The nonpartisan watchdog Taxpayers for Common Sense sent a letter to the House Ethics Committee requesting an “investigation into how a controversial Florida highway earmark tied to Rep. Don Young (R-AK) made it into legislation that had already passed the House and Senate.” But “restrictive House rules” and a recent federal ruling make it “unclear whether any investigation will occur.”

After doubts were raised about the recent death of Abu Usama al-Tunisi, a high-level al Qaeda operative in Iraq, counterterrorism analyst Evan Kohlmann writes of confirmation that Tunisi did in fact die in a recent U.S. military raid.

And finally: Condi’s bodyguard scared a fifth grader. Secretary of State Condoleezza Rice visited an elementary school in Harlem yesterday, where one student was “spooked” by “her muscular security agents.” “Her security might kill me if I ask one question or come two feet near her,” said 10-year-old fifth grader Miles Figaro. “We’ll prove that that’s not true. … You come here,” said Rice, giving him a hug to laughter and applause.

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The Supreme Court “let stand a New York court ruling upholding a state law that forces religious-based social service agencies to subsidize contraceptives as part of prescription drug coverage they offer employees.”


ILLINOIS: “The City of Aurora says a controversial Planned Parenthood clinic can open its doors — immediately.”

MINNESOTA: Members of Minnesota’s congressional delegation write to Gov. Tim Pawlenty (R) “urging his administration to apply for emergency funds for the 35W bridge collapse.”

HEALTH CARE: Eight states will file suit against the Bush administration, challenging stricter eligibility rules for the Children’s Health Insurance Program.


THINK PROGRESS: Rep. Jack Kingston (R-GA) introduces resolution “commending” Rush Limbaugh.

FISHBOWL DC: Sunday’s episode of the Simpson’s mocks Rupert Murdoch’s acquisition of the Wall Street Journal.

HUFF POLITICS: The Huffington Post launches a new blog with original reporting on politics.

FIREDOGLAKE: After his “phony soldier” comments, Rush Limbaugh should be taken off of the Armed Forces Radio network.


“The day you set timelines and deadlines, it’s lost in Iraq.”
— Sen. Lindsey Graham (R-SC), 2/4/07


“Graham told Time Wednesday that the Iraqi leaders have 90 days to start resolving their political differences with real legislative agreements or face a change in strategy by the U.S.”
— Time, 9/26/07

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