Start the Week off with a Bang
Monday mornings are anything but slow at the Supreme Court. To start things off, the Justices decided to accept another abortion case for the following term. It's been a while since the Court has taken up the issue, so two cases for next October's term are a sign that something interesting may happen. Both of the cases deal with the Partial Birth Abortion Act of 2003. That law was struck down by appeals courts in both San Francisco and St. Louis. A similar PBA ban was struck down by the Supreme Court in a 5-4 decision in 2000's Stenberg v Carhart.
The CNN article has a nice big picture of Justice Sam Alito included with the text. All eyes seem to be on him, but I am starting to wonder about that. Doing the rundown of the Justices, 7 of the 9 members of the Court were on the Court in 2000 for Stenberg. Justices Stevens, Souter, Ginsburg, and Breyer voted to strike down the ban. Justices Scalia, Kennedy, and Thomas voted to uphold the ban (and in very strongly worded dissenting opinions). We don't know what Justice Alito will do, but we also don't know what Chief Justice Roberts will do.
Many people, including myself, have assumed that Roberts will be a lock to vote to uphold the ban. His mentor Chief Justice Rehnquist did. However, he may defer to the precedent of Stenberg. I've been thinking about Prof. Cass Sunstein's analysis of Roberts' previous opinions as a judge. Sunstein stated that Roberts is a judicial minimalist who strongly believes in precedent. On the other hand, those were appeals court opinions. Being on the Supreme Court is very different. Maybe Roberts was just waiting to get on the Court to "do some damage". Either way, I think that Roberts' vote should be watched with as much interest as Alito's.
The CNN article has a nice big picture of Justice Sam Alito included with the text. All eyes seem to be on him, but I am starting to wonder about that. Doing the rundown of the Justices, 7 of the 9 members of the Court were on the Court in 2000 for Stenberg. Justices Stevens, Souter, Ginsburg, and Breyer voted to strike down the ban. Justices Scalia, Kennedy, and Thomas voted to uphold the ban (and in very strongly worded dissenting opinions). We don't know what Justice Alito will do, but we also don't know what Chief Justice Roberts will do.
Many people, including myself, have assumed that Roberts will be a lock to vote to uphold the ban. His mentor Chief Justice Rehnquist did. However, he may defer to the precedent of Stenberg. I've been thinking about Prof. Cass Sunstein's analysis of Roberts' previous opinions as a judge. Sunstein stated that Roberts is a judicial minimalist who strongly believes in precedent. On the other hand, those were appeals court opinions. Being on the Supreme Court is very different. Maybe Roberts was just waiting to get on the Court to "do some damage". Either way, I think that Roberts' vote should be watched with as much interest as Alito's.
I think Sunstein's view of Roberts is wrong, for reasons I explained here, and I'd add that I think the Rapanos concurrence's lamentation of the lack of a real majority tends to support that.
Posted by
Simon |
3:35 PM
As time goes on, I think it's becoming more likely that Sunstein was wrong. Not that I would besmerch the reputation of our Chief, but I think that he's been waiting to be on the Court for a long time. He knew that his work on the DC Circuit would be closely scrutinized. He knew that he would be drilled with question at his confirmation hearings. He knew that all of this would eventually come.
I was thinking about his hearings last night (yeah, that's the kind of stuff I think about late at night), and I'm still blown away by his performance. He ran circles around the Senators and their question scripts. I think that masterful bit of oral personal advocacy paired with a fairly minimalist approach to his time on the DC Circuit fooled a bunch of people. I think it fooled Sunstein, and I think it fooled me a bit too. I have been satisfied beyond my expectations at Roberts as Chief thus far. If he keeps this up for the next 30 years, I'm going to be very happy.
I'm still eager to see what will happen with the abortion cases. It's a unique issue in a way. It seems like some judges and Justices get scared of perceived public pressure (like Kennedy did), and they buckle. Will Roberts and Alito buckle? Right now, I'd bet not. But we'll have to wait and see.
Posted by
Steve |
4:04 PM