the president, the senate, and the supreme court: teaching the politics of separation of powers
DESCRIPTION
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. The Constitutional Context. - PowerPoint PPT PresentationTRANSCRIPT
The President, the Senate, and the Supreme Court:
Teaching the Politics of Separation of Powers
Joseph F. Kobylka, Altshuler Distinguished Teaching ProfessorAssociate Professor of Political Science
Prepared for delivery to the APSI, 23 July 2013
The Constitutional Context
The Constitution is a Legal Document, but….
it is an Interpreted Document
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)
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)
Text, Times, and the Court
Over Time…The text of the Constitution has changed
“We the People” have evolvedGovernment has become more “democratic”
The Justices interpreting the Constitution have changedTimes and problems have changed
Governmental responses & policy have changedInterpretational Approaches have changed
Textualism/Intentionalism“Living Constitution”/Common Law
Text, Times, Issues, and the CourtCriminal Law – capital punishment
Privacy – abortion & gay rightsFreedom of Expression – campaign finance
Church-State – school prayerCivil Rights – affirmative action & voting rights
National Power – health care, immigrationPresidential Power – war on terror
Second Amendment – firearm regulation
The Nexus
Question: What Influences Changes in Understanding?
Interpretational Approaches Who is on the CourtAnswer: Interaction between “Law” and “Politics”
President Senate
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)
Republican Presidents (and Candidates) - Political & Legal Selection Criteria
Ronald Reagan (1981-89) “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 (2001-2009) “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.”
Text, Times, Issues, and the CourtBecause of the role the Supreme Court plays in interpreting what the Constitution means, who is on the Court is crucial to constitutional meaning.
Constructing the Court is a political task:• President• Senate• Context
The Supremes Obama Inherited
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: 78-22
Justice Stevens Justice Scalia Justice Kennedy Justice Thomas Justice Ginsburg Justice Breyer Justice Alito
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
The Supremes Obama Inherited
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
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
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
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
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
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
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
Recall: Text, Times, and Issues
Criminal Law – capital punishmentPrivacy – abortion & gay rights
Freedom of Expression – campaign financeChurch-State – school prayer
Civil Rights – affirmative action & voting rightsNational Power – health care, immigration
Presidential Power – war on terrorSecond Amendment – firearm regulation
Descriptive Statistics: 2005-2008 Terms2005
Cases decided: 69 Cases decided with a 5-vote Majority: 16 (22.9%)
2006 Cases decided: 72 Cases decided with a 5-vote Majority: 24 (33.3%)
2007 Cases decided: 71 Cases decided with a 5-vote Majority: 12 (16.9%)
2008 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
The Supremes in 2008: Ideological Spread
Obama’s Opportunities: First Term
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
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
The Present “Roberts” Court
Descriptive Statistics: 2009-2012 Terms2009 (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
Ideological Spacing of the Justices (2012)
Conservative LiberalScalia (Reagan)Thomas (Bush I)Roberts (Bush II) Alito (Bush II)
Ginsburg (Clinton)Breyer (Clinton)Sotomayor (Obama) Kagan (Obama)
Kennedy (Reagan)
a.k.a. “The Constitution”
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)
What are President Obama’s Second Term Prospects to Shape the Court?
It depends… OpportunitiesVacanciesWho retires/leaves
Disposition of the Senate Luck
Potential Obama Nominees
Criteria Constitutional Approach Diversity Age Experience
Judicial Governmental
Opportunities?
The Four Oldest Justices: Ginsburg (80) Scalia (77)
Kennedy (77) Breyer (74)
The Role (and Relevance) of the Senate
Headliner: PresidentBack-Up Band: Senate Two Pinch Points
Partisan Control Democrats currently hold 54-46 seat edge Up from 53-47
Senate Rules Cloture Filibuster
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
Obama’s Opportunities?A Potential Political Blood Bath
And… this “Peculiar Institution” that is the Supreme Court
“Ninety Percenters” O’Connor Kennedy
A Case Study of the Potential Effects of Institutional Constraints, Issue Changes, and Life Tenure
“Wayward” Justices Powell Souter
The Uncertainty of Constrained ChoicesThe President is not Reggie Jackson
TEACHING THE POLITICS OF SEPARATION OF POWERS
The President, the Senate, and the Supreme Court:
Potential Obama NomineesApplying the Criteria (spit-balling names) Sitting Federal Judges
Judge Merrick Garland, D.C. Circuit Judge Mary Murguia, 9th Judge Jacqueline Hong-Ngoc Nguyen, 9th Judge Paul Watford, 9th Judge Diane Wood, 7th
Sitting State Judges Governmental Officials Academics
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
Potential Obama NomineesApplying 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
Potential Obama NomineesApplying 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