The President, the Senate, and the Supreme Court: Teaching the Politics of Separation of Powers
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1 The President, the Senate, and the Supreme Court: Teaching the Politics of Separation of Powers Joseph F. Kobylka, Altshuler Distinguished Teaching Professor Associate Professor of Political Science Prepared for delivery to the APSI, 23 July 2013
2 The Constitutional Context The Constitution is a Legal Document, but. it is an Interpreted Document
3 The Constitutional- Court Context and who interprets it? The Supremes It is emphatically the province and duty of the judicial department to say what the law is. Chief Justice John Marshall, Marbury v. Madison (1803)
4 The Constitutional- Court Context "We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and our prosperity under the Constitution. - Chief Justice Charles Evans Hughes (1908)
5 Text, Times, and the Court Over Time The text of the Constitution has changed We the People have evolved Government has become more democratic The Justices interpreting the Constitution have changed Times and problems have changed Governmental responses & policy have changed Interpretational Approaches have changed Textualism/Intentionalism Living Constitution /Common Law
6 Text, Times, Issues, and the Court Criminal Law capital punishment Privacy abortion & gay rights Freedom of Expression campaign finance Church-State school prayer Civil Rights affirmative action & voting rights National Power health care, immigration Presidential Power war on terror Second Amendment firearm regulation
7 The Nexus Question: What Influences Changes in Understanding? Interpretational Approaches Who is on the Court Answer: Interaction between Law and Politics President Senate
8 President Obama: Political & Legal Selection Criteria In hard cases, the constitutional text will not be directly on point. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart. (statement opposing confirmation of Chief Justice Roberts) In examining Judge Alito's many decisions, I have seen extraordinarily consistent support for the powerful against the powerless, for the employer against the employee, for the President against the Congress and the Judiciary, and for an overreaching federal government against individual rights and liberties. (statement opposing confirmation of Justice Alito)
9 Republican Presidents (and Candidates) - Political & Legal Selection Criteria Ronald Reagan ( ) We [will] continue to work to overturn Roe v. Wade. the Court ruled wrongly with regard to prayer in public schools.wasn t this a case of the Court going beyond what the Constitution actually says? [promote] equal opportunities for all Americans with no barriers born of bigotry or discrimination. George W. Bush ( ) I have great respect for Justice Scalia for the strength of his mind, the consistency of his convictions, and the judicial philosophy he defends. Mitt Romney will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito. [These] judges will exhibit a genuine appreciation for the text, structure, and history of our Constitution and interpret the Constitution and the laws as they are written.
10 Text, Times, Issues, and the Court Because of the role the Supreme Court plays in interpreting what the Constitution means, who is on the Court is crucial to constitutional meaning. The Supremes Obama Inherited Constructing the Court is a political task: President Senate Context
11 The Supremes Obama Inherited Chief Justice Roberts G. W. Bush (R) 27 January 1955 (58) September 29, 2005 (8) Roman Catholic Indiana Harvard; Harvard Confirmed: Justice Stevens Justice Scalia Justice Kennedy Justice Thomas Justice Ginsburg Justice Breyer Justice Alito
12 The Supremes Obama Inherited Chief Justice Roberts Justice Stevens G. Ford (R) April 20, 1920 (93) December 19, 1975 (35) Protestant Illinois U. Chicago; Northwestern Justice Scalia Justice Kennedy Justice Thomas Justice Ginsburg Justice Breyer Justice Alito
13 The Supremes Obama Inherited Chief Justice Roberts Justice Stevens Justice Scalia R. Reagan March 11, 1936 (77) September 26, 1986 (27) Roman Catholic New Jersey/New York Georgetown; Harvard Justice Kennedy Justice Souter Justice Thomas Justice Ginsburg Justice Breyer Justice Alito
14 The Supremes Obama Inherited Chief Justice Roberts Justice Stevens Justice Scalia Justice Kennedy R. Reagan (R) July 23, 1936 (77) February 11, 1988 (25) Roman Catholic California Stanford; Harvard Justice Souter Justice Thomas Justice Ginsburg Justice Breyer Justice Alito
15 The Supremes Obama Inherited Chief Justice Roberts Justice Stevens Justice Scalia Justice Kennedy Justice Souter G. H. W. Bush September 17, 1939 (74) October 3, 1990 (18) Episcopalian New Hampshire Harvard; Harvard Justice Thomas Justice Ginsburg Justice Breyer Justice Alito
16 The Supremes Obama Inherited Chief Justice Roberts Justice Stevens Justice Scalia Justice Kennedy Justice Souter Justice Thomas G. H. W. Bush June 23, 1948 (65) October 23, 1991 (22) Roman Catholic Georgia Holy Cross; Yale Justice Ginsburg Justice Breyer Justice Alito
17 The Supremes Obama Inherited Chief Justice Roberts Justice Stevens Justice Scalia Justice Kennedy Justice Souter Justice Thomas Justice Ginsburg W. Clinton March 15, 1933 (80) August 10, 1993 (20) Jewish New York Harvard/Columbia Justice Breyer Justice Alito
18 The Supremes Obama Inherited Chief Justice Roberts Justice Stevens Justice Scalia Justice Kennedy Justice Souter Justice Thomas Justice Ginsburg Justice Breyer W. Clinton August 15, 1938 (74) August 3, 1994 (19) Jewish California Stanford; Harvard Justice Alito
19 The Supremes Obama Inherited Chief Justice Roberts Justice Stevens Justice Scalia Justice Kennedy Justice Souter Justice Thomas Justice Ginsburg Justice Breyer Justice Alito G. W. Bush April 1, 1950 (63) January 31, 2006 (6) Roman Catholic New Jersey Princeton; Yale Confirmed: 58-42
20 Recall: Text, Times, and Issues Criminal Law capital punishment Privacy abortion & gay rights Freedom of Expression campaign finance Church-State school prayer Civil Rights affirmative action & voting rights National Power health care, immigration Presidential Power war on terror Second Amendment firearm regulation
21 Descriptive Statistics: Terms Cases decided: 69 Cases decided with a 5-vote Majority: 16 (22.9%) Cases decided: 72 Cases decided with a 5-vote Majority: 24 (33.3%) Cases decided: 71 Cases decided with a 5-vote Majority: 12 (16.9%) Cases decided: 74 Cases decided with a 5-vote Majority: 23 (31.1%) 26.2% of all decisions of the Early Roberts Court Were 5-4 or 5-3
22 The Supremes in 2008: Ideological Spread
23 Obama s Opportunities: First Term
24 The Obama Shaped Supremes Chief Justice Roberts Justice Stevens Justice Scalia Justice Kennedy Justice Thomas Justice Ginsburg Justice Breyer Justice Alito Justice Sotomayor Barack Obama June 25, 1954 (59) August 8, 2009 (4) Catholic New York Princeton; Yale Confirmed: 67-29
25 The Obama Shaped Supremes Chief Justice Roberts Justice Scalia Justice Kennedy Justice Thomas Justice Ginsburg Justice Breyer Justice Alito Justice Sotomayor Justice Kagan Barack Obama April 28, 1960 (53) August 8, 2010 (3) Jewish New York Princeton; Harvard Confirmed: 63-37
26 The Present Roberts Court
27 Descriptive Statistics: Terms 2009 (Sotomayor) Cases decided with a 5-vote Majority: 17.8% (15 of 84) 2010 (Kagan) Cases decided with a 5-vote Majority: 20% (16 of 80) or 22% (18 of 82; Kagan not participating; Court divided 4-4) 2011 (stable bench) Cases decided with a 5-vote Majority: 20% (15 of 75) 2012 (stable bench) Cases decided with a 5-vote Majority: 29% (23 of 78) 24.2% of all decisions of the Roberts Court have been by 5-4 or 5-3 votes Justice Kennedy in the mix: In the majority in 119 of 144 (82.6%) closely divided decisions
28 Ideological Spacing of the Justices (2012) Conservative Scalia (Reagan) Thomas (Bush I) Roberts (Bush II) Alito (Bush II) Liberal Ginsburg (Clinton) Breyer (Clinton) Sotomayor (Obama) Kagan (Obama) Kennedy (Reagan) a.k.a. The Constitution
29 The Conflictual 2012 Term of the Court U.S. v. Windsor (2013) gay marriage case; 5-4 (ideological division) Shelby County v. Holder (2013) VRA 4 case; 5-4 (ideological division) Fisher v. UT (2013) Affirmative action case, 7-1 (strategic) Florida v. Jardines (2013) Drug sniffing dog; 5-4 (mixed) Maryland v. King (2013) DNA cheek swabs, 5-4 (mixed)
30 What are President Obama s Second Term Prospects to Shape the Court? It depends Opportunities Vacancies Who retires/leaves Disposition of the Senate Luck
31 Potential Obama Nominees Criteria Constitutional Approach Diversity Age Experience Judicial Governmental
32 Opportunities? The Four Oldest Justices: Ginsburg (80) Scalia (77) Kennedy (77) Breyer (74)
33 The Role (and Relevance) of the Senate Headliner: President Back-Up Band: Senate Two Pinch Points Partisan Control Democrats currently hold seat edge Up from Senate Rules Cloture Filibuster
34 The Present Politics of Confirmation President: Constitutional Vision and Political Constituencies Senate Traditional: Escalating Trend: Clinton Bush Republican Hostility to All Things Obama Note confirmation votes of SS and EK Test runs for when it counts Contextual Political: Battle Among Republicans The Impact of the Tea Party The Death of Compromise The Need to Reassert After Compromise 2014 Mid-Term Elections Primary Politics Turnout Force Incumbents to the Right or Left Lame Duck President
35 Obama s Opportunities? A Potential Political Blood Bath
36 And this Peculiar Institution that is the Supreme Court A Case Study of the Potential Effects of Institutional Constraints, Issue Changes, and Life Tenure Wayward Justices Powell Souter Ninety Percenters O Connor Kennedy The Uncertainty of Constrained Choices The President is not Reggie Jackson
37 The President, the Senate, and the Supreme Court: TEACHING THE POLITICS OF SEPARATION OF POWERS
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42 Potential Obama Nominees Applying the Criteria (spit-balling names) Sitting Federal Judges Judge Merrick Garland, D.C. Circuit Judge Mary Murguia, 9 th Judge Jacqueline Hong-Ngoc Nguyen, 9 th Judge Paul Watford, 9 th Judge Diane Wood, 7 th Sitting State Judges Governmental Officials Academics
43 Potential Obama Nominees Applying the Criteria (spit-balling names) Sitting Federal Judges Sitting State Judges Cheri Beasley, NC Yvette McGee Brown, OH Patricia Timmons-Goodson, NC Goodwin Liu, CA Governmental Officials Academics
44 Potential Obama Nominees Applying the Criteria (spit-balling names) Sitting Federal Judges Sitting State Judges Governmental Officials Attorney General Kamala Harris (CA) Gov. Jennifer Granholm (MI) Senator Amy Klobuchar (MN) Attorney General Lisa Madigan (IL) Director of Homeland Security Janet Napolitano White House Counsel Kathryn Ruemmler Academics
45 Potential Obama Nominees Applying the Criteria (spit-balling names) Sitting Federal Judges Sitting State Judges Governmental Officials Academics Heather Gerkin, Yale Pamela Karlan, Stanford Neal Katyal, Georgetown Carol Steiker, Harvard Kathleen Sullivan, Stanford
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