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Supreme Court

Over at SCOTUS Blog, Tom Goldstein wonders what would happen to the Supreme Court if a Republican were to win the presidency in 2008:

As a consequence, whether the Court moves more fundamentally to the right, so that it could genuinely undo the jurisprudence of the Warren Court, depends on the next President. If two or three of the moderate-to-liberal votes were replaced with genuine conservatives, the existing constraints on more radical doctrinal shifts created by swing votes like Kennedy or O’Connor would be lifted. . . .

In sum, the 2008 election window presents the most significant opportunity to shape the direction of the Supreme Court that can be anticipated for roughly the next two decades – i.e., as far into the future as anyone can reasonably hope to look. For the left and the right, the stakes are genuinely high.

Orin Kerr replies:

I look at things differently, and a thought experiment explains why. Imagine the year is 1969, the end of a decade of 5-4 constitutional blockbusters, and Chief Justice Warren has recently announced his retirement. A time-traveler from 2007 comes back and tells you the dramatic news about who would nominate the Justices of the next four decades. He explains to you that American politics would shift sharply to the right in the future, and that that in the next four decades 12 of the 14 new Justices — over 85% — would be nominated by Republicans.

Orin is right that predicting the future of the Supreme Court based on elections is fraught with peril. Yet there is a fundamental difference between today and 1969 that makes Orin’s hypothetical not very apt. Today, the appointments process is much different — is is far more partisan. Partly because Republican presidents appointed justices who turned out to be liberal, there has been a backlash that has resulted in far more vetting of candidates. Is it possible for more Souters or Blackmuns to slip through a Republican administration? Certainly, anything is possible. But I doubt that it is likely. The lessons of the past will weigh heavily on every president, whether Republican or Democrat. With the Court hanging in the balance, I bet most presidential administrations will carefully vet their nominees.

The days where Supreme Court nominees turn out to be ideological surprises are largely gone. This is due, in part, to the widespread acceptance of the legal realist notion that justices are not neutral interpreters of the law; to the increasing involvement throughout the twentieth century of the Court in the political and social issues of the day; to the increasingly bitter confirmation battles that now have become a hollow ritual of empty rhetoric; and to the lessons of history that nominees not thoroughly vetted can turn into longstanding sources of regret. I wish we could go back to the more innocent age of 1969, but I doubt that we can recover such lost innocence.

The only transformation I see capable of changing the appointments process is a major realignment in political thought. For example, during the New Deal, it was the liberals who were calling for judicial restraint. It took a while before attitudes realigned, with conservative justices (such as Felix Frankfurter) continuing to advocate for judicial restraint while the liberal justices pressed for Warren Court expansion of rights. We’re still living in this paradigm, and until it shifts, we won’t be seeing any more surprise justices.

Therefore, I agree with Tom Goldstein that the next election is pivotal for the Supreme Court.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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