Tuesday, May 1, 2007

To answer a question...

DC poses a few questions below regarding Supreme Court groupings. Here is my attempt at an answer.

First, I do not mean "political" in the pejorative sense, as in "these questions are too political for the Court to be considering." The Court is political; it has to answer political questions. So, with that in mind, I would consider "blatantly political" questions to be those which Presidents and the Senate are concerned with when nominating and confirming/rejecting, respectively. In other words, when we hear President Bush say "I want to appoint strict constructionists," that is code for "I want a political conservative on the Court." He is looking for someone who will limit individual rights (abortion, free speech, etc.), support a broad reading of presidential power, fight against a "high wall of separation" between Church and state, and so on. In other words, he wants someone who will take his side on the hot-button issues of the day. And that is fine. I have no problem with that. To expect presidents not to consider politics in nominating Justices is simply absurd; being a Supreme Court Justice is inherently political, and for the president to ignore that would be foolish.

So, anyway, on these hot-button issues, we typically see the "liberals" and "conservatives" group up against each other. For instance, in Gonzales v. Carhart (regarding "partial birth abortion"), we saw a 5-4 split, with the conservatives supporting the law, and the liberals opposing it. However, there are a few hot-button issues that produce some odd results. For instance, Justice Kennedy (who is, now that O'Connor is gone, the closest thing to a "swing vote") typically supports gay rights. Justice Scalia, because of his theory of textualism, tends to support free speech (he ruled that laws against flag burning are unconstitutional). But, in general terms, these so-called "hot-button" issues typically produce partisan splits.

We see odd combinations when it comes to technical or mundane constitutional or legal matters (which represent the overwhelming majority of the Court's business). Since candidates are not vetted based on how they will interpret the Dormant Commerce Clause, for instance, there is not a strong link between party affiliation and vote patterns. So, to answer DC's question more briefly, I think we will see the classic partisan split on the issues that presidents care about when they are nominating Justices (such as abortion, gay rights, presidential power, affirmative action, religious matters, etc.), but we will see more interesting combinations as the cases get less interesting (i.e. more about technical legal issues), oddly enough.

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