Supreme Court of the United States

[onejayhawk]

One or two "surprises" in 12 years on the Court does not make Roberts a swing vote. Kennedy has "strayed" on enough important and controversial matters to legitimately be labeled a "swing" justice on the current Court. If Kennedy resigns is replaced with a Justice who will reliably vote along with Gorsuch, Alito, Thomas and Roberts in the vast majority of cases, we will have a conservative Court with no real "swing vote", unless Kennedy's vacuum somehow motivates Roberts to shift dramatically from where he's been.

It is the nature of a committee to always have a swing vote. Assuming that vote is the Chief Justice, what sort of cases will become tipping point?

J

[B-Fly]

It is the nature of a committee to always have a swing vote. Assuming that vote is the Chief Justice, what sort of cases will become tipping point?

J

Eh, not sure I agree with you. Roberts isn't really moderate in any way. The way in which he's somewhat distinguished himself from Scalia, Thomas and Alito in his years as Chief Justice is that he does like to build consensus where he thinks he can. If the replacement of Kennedy leaves Roberts as the "middle" judge in the conservative-to-liberal spectrum on the 9-judge Court, there will be few if any clear wins for the Court's liberals. The best hope is that Roberts will seek out opportunities for 9-0, 8-1, 7-2 and 6-3 opinions by moderating the holding or deciding the case narrowly enough to allow some of the liberals to join it. That may occasionally dissatisfy Thomas, Alito or Gorsuch enough that they feel compelled to issue a concurring opinion saying they wish the ruling had gone further. But make no mistake, a Court with John Roberts as the "middle" justice would be a deeply conservative Court.

[onejayhawk]

Eh, not sure I agree with you. Roberts isn't really moderate in any way. The way in which he's somewhat distinguished himself from Scalia, Thomas and Alito in his years as Chief Justice is that he does like to build consensus where he thinks he can. If the replacement of Kennedy leaves Roberts as the "middle" judge in the conservative-to-liberal spectrum on the 9-judge Court, there will be few if any clear wins for the Court's liberals. The best hope is that Roberts will seek out opportunities for 9-0, 8-1, 7-2 and 6-3 opinions by moderating the holding or deciding the case narrowly enough to allow some of the liberals to join it. That may occasionally dissatisfy Thomas, Alito or Gorsuch enough that they feel compelled to issue a concurring opinion saying they wish the ruling had gone further. But make no mistake, a Court with John Roberts as the "middle" justice would be a deeply conservative Court.

I did not say he was a moderate. I said he was the middle, unless that turns out to be Gorsuch. Gorsuch seems very much the literalist, even if he does not agree with the written law. If Roberts is the swing vote, what sort of case will he swing?

J

[B-Fly]

I did not say he was a moderate. I said he was the middle, unless that turns out to be Gorsuch. Gorsuch seems very much the literalist, even if he does not agree with the written law. If Roberts is the swing vote, what sort of case will he swing?

J

You're either deliberately or inadvertently misreading me. I see almost no circumstance where he provides the liberal four with the fifth vote they need on a controversial case, leaving four conservatives in the minority. Even if he's in the middle of the Court ideologically, I don't think he'll swing cases to a liberal majority. At best, he'll soften the blow of some decisions by ruling narrowly in order to draw in the liberals every once in a while.

[B-Fly]

A relevant antecedent is the Warren Court after Tom Clark was replaced by Thurgood Marshall in 1967. The liberals (Warren, Brennan, Fortas, Douglas, Marshall) were in the majority of pretty much every case decided, even as Black drifted slightly rightward to occasionally dissent with Harlan, White and Stewart. The only drama back then was whether the liberals would decide cases broadly 5-4 or even 6-3, or if they would decide more narrowly or moderately because they wanted to secure a 7-2, 8-1 or 9-0 decision.

[onejayhawk]

You're either deliberately or inadvertently misreading me. I see almost no circumstance where he provides the liberal four with the fifth vote they need on a controversial case, leaving four conservatives in the minority. Even if he's in the middle of the Court ideologically, I don't think he'll swing cases to a liberal majority. At best, he'll soften the blow of some decisions by ruling narrowly in order to draw in the liberals every once in a while.

You are saying there is no common ground between Roberts and Stevens/Ginsburg/Breyer/Sotomayor. That is counter-intuitive, but OK. I wonder how long Stevens and/or Breyer will put up with a long string of 5-4 losses.

Huge Union case today. I was a Union Steward for over 15 years and this outcome was feared the whole time. The implications are much more severe than generally understood, particularly for the Democratic Party.

J

[Bernie Brewer]

A relevant antecedent is the Warren Court after Tom Clark was replaced by Thurgood Marshall in 1967. The liberals (Warren, Brennan, Fortas, Douglas, Marshall) were in the majority of pretty much every case decided, even as Black drifted slightly rightward to occasionally dissent with Harlan, White and Stewart. The only drama back then was whether the liberals would decide cases broadly 5-4 or even 6-3, or if they would decide more narrowly or moderately because they wanted to secure a 7-2, 8-1 or 9-0 decision.

Per CNN: Kennedy to Retire!

Do Dems now block any Trump appointment, in hopes of delaying it until they can see how 2018 elections and the Big Blue Wave turn out?

[senorsheep]

Per CNN: Kennedy to Retire!

Do Dems now block any Trump appointment, in hopes of delaying it until they can see how 2018 elections and the Big Blue Wave turn out?

After Merrick Garland, why wouldn't they?

[B-Fly]

Per CNN: Kennedy to Retire!

His last small grace note for moderates/liberals was waiting for the announcement of this week's cases to prove to us that the Court already sucks balls as currently constituted, so we shouldn't be as distraught about his retirement as we otherwise might have been.

[Bernie Brewer]

After Merrick Garland, why wouldn't they?

I suspect, what was good for the goose, gets played again, this time, by the Dems. This could bring out the votes on both sides in the fall!

By the way, I'm betting Diane Sykes of Wisconsin. Charlie's ex. But she'll be smart if she think she'll get Garland'd, she'll turn down offer.

[B-Fly]

Is it too much to hope that Trump will nominate his big sister out of family loyalty? (She's a moderate federal district court judge in inactive retired status, age 81.)

[onejayhawk]

https://www.wsj.com/articles/supreme-court-justice-anthony-kennedy-announces-retirement-1530122570

I thought this was likely, now that his pet project is resolved (SD v Wayfair). As has been mentioned, his retirement has been anticipated for years.

Is it too much to hope that Trump will nominate his big sister out of family loyalty? (She's a moderate federal district court judge in inactive retired status, age 81.)

More likely Ted Cruz. He would fit right in.

Anyone know of a list of likely contenders?

I suspect, what was good for the goose, gets played again, this time, by the Dems. This could bring out the votes on both sides in the fall!

By the way, I'm betting Diane Sykes of Wisconsin. Charlie's ex. But she'll be smart if she think she'll get Garland'd, she'll turn down offer.

That would be truly unexpected. The Democrats could have forced a vote on Garland, but they thought they didn't need to do it. Not so this time, even though few people think the Senate will change parties. Expect a new Justice before the election.

Sykes would be by the playbook. Trump always said he would be willing to nominate outside the Ivy League. Two reservations, age and current position.

J

[B-Fly]

Do Dems now block any Trump appointment, in hopes of delaying it until they can see how 2018 elections and the Big Blue Wave turn out?

They'll delay until after the midterms, yes. They probably should delay it until after the 2020 election, lol.

[B-Fly]

You are saying there is no common ground between Roberts and Stevens/Ginsburg/Breyer/Sotomayor. That is counter-intuitive, but OK. I wonder how long Stevens and/or Breyer will put up with a long string of 5-4 losses.

Well since Stevens retired back in 2010, he certainly won't put up with it long, lol.

I think Ginsburg and Breyer will at least try to hold out for 2020. Maybe they announce their impending retirements in Summer 2020 to drive up turnout.

[Judge Jude]

Is it too much to hope that Trump will nominate his big sister out of family loyalty? (She's a moderate federal district court judge in inactive retired status, age 81.)

she was in the 2-1 Third Circuit majority denying NJ sports betting that was overturned by SCOTUS last month. he'll want someone with better judgment