Jim Crow Lives in the Jury Box

It's dismaying. While it doesn't seem to get discussed much, the dissent in Miller-El is part of the context that makes Parents Involved so infuriating. Invoking glib tautologies in defense of a "color-blind constitution" becomes pretty hard to sustain when you're unable to find any racial discrimination in a case in which prosecutors systematically excluded black jurors for transparently pretextual reasons. But that's modern conservatism: Brown v. Board has been reinterpreted on the one hand to constitutionally legitimate school systems that are segregated and unequal, while on the other it can prevent school boards from trying to integrate their schools.

In related news, former Time Blog of the Year calls the 14th Amendment "an anachronism."

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EXCLUSIVE! Breaking! Must Credit LGM! Sirens!

LGM has been told that Supreme Court Justices Antonin Scalia, Clarence Thomas, and Samuel Alito are all planning on resigning tomorrow. This will give Barack Obama three more Supreme Court nominations. The fact that our impeccable source did not even have a story about why they are resigning should in no way diminish the credibility of this story, or stop you from linking to it and discussing it.

...seems about right.

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The Politics of the Roberts Court

Shorter Jeffrey Rosen: I am beginning to have serious questions about the existence of Santa Claus.

While I can't resist making fun of Rosen's belated recognition of the obvious, he does go on to raise a serious issue. about the potential for interbranch conflict. Rosen argues that the Court may have overplayed its hand in Citizens United:

It’s impossible, at the moment, to tell whether the reaction to Citizens United will be the beginning of a torrential backlash or will fade into the ether. But John Roberts is now entering politically hazardous territory...Roberts may feel just as confident that he knows the “right” answer in cases like Peek-a-Boo as he did in Citizens United. But political backlashes are hard to predict, contested constitutional visions can’t be successfully imposed by 5-4 majorities, and challenging the president and Congress on matters they care intensely about is a dangerous game. We’ve seen well intentioned but unrestrained chief justices overplay their hands in the past--and it always ends badly for the Court.

There are a couple elements present that could lead to conflict over campaign spending. First, whatever my other quibbles with Friedman and Litwick on this question, they were right about public opinion being unfavorable. And Obama's willingness to criticize the Court at the State of the Union is indeed potentially important. Does this mean that I think that Citizens United is going to cause a major political struggle over judicial power?

In a word, no, for one minor reason and one major one. On the minor reason, the direction of public opinion is only important if an issue is also salient, and I just don't think there's any evidence that a non-trivial number of people will vote on campaign finance. The important reason is the most important factor: do a majority of members of Congress really "care intensely" about campaign finance reform? Almost certainly not, I'd say, and indeed I'd go further and speculate that a substantial majority of Congress is perfectly happy with what the Court did. My friend George Lovell and I use the term "legislative default" to describe a case in which the Court gets the apparently final say on a question because a coalition of members of Congress either substantively supports the Court or doesn't really care how a question is resolve but see political benefits in letting someone else take responsibility. (More explanation here for people with institutional subscriptions or who want to email.) I think that this is the case with campaign finance. The Court has a lot of open congressional support here, at least enough for a minority veto of any attempt to curb the effects of Citizens United. But in addition to that, my guess is that they'll be joined by a lot of members of Congress who don't feel they can vote against campaign reform legislation but are happy to have the courts give them the excuse not to try again. (Cf. John McCain saying that the Court has spoken.)

I don't see any meaningful political action against the Court over campaign finance, not because there's nothing Congress can do but because a majority of Congress supports Citizens United for either substantive or political reasons.

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Today At The Court

Some thoughts on the Miranda-application ruling handed down today.

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The Court and African-Americans

Both the long and short book-length versions of his argument are worth reading, but Michael Klarman's remarks about the Supreme Court's generally poor record when it comes to the rights of African-Americans constitute a very useful summary. These points about the contingency of the Court's recent record are also important:

I would draw three lessons from the last forty years of the Supreme Court’s racial jurisprudence. First, most of these rulings have been five to four. Had there been one more liberal justice, many of these cases likely would have been decided differently. It was not predestined that the Court would reject race-based affirmative action, prematurely terminate the school desegregation project, or reject the argument that the Constitution bars racially disparate impacts regardless of discriminatory motive. Constitutional interpretation involves judicial discretion; judicial discretion reflects political ideology; and conservative justices tend, unsurprisingly, to subscribe to the conservative racial ideology of the party that appointed them. That ideology embraces a narrow, formalist conception of what counts as race discrimination; abhors the use of racial preferences, whether benignly motivated or not; and deems this nation’s ugly history of white supremacy as something more to be repudiated than remedied.

Second, while the political composition of the U.S. Supreme Court is partly fortuitous, the victories of the conservative bloc of justices since 1970 have predominantly been a function of politics. Between 1968 and 2008, Republicans controlled the presidency for twenty-eight years, Democrats for only twelve. Of the fourteen appointments made to the Supreme Court between 1969 and 2006, twelve were made by Republican presidents, most of whom prided themselves on their conservative politics. Because constitutional interpretation is so inextricably fused with politics, it should come as no surprise that justices appointed by presidents for whom very few black people voted would decide race-inflected cases in ways that contravened the preferences of most African Americans.

Because of cases like Roe, it's sometimes argued that LBJ's botched attempts to nominate Warren's replacement and Nixon's 4 quick appointees ended up not making much difference. But on the issues that Nixon cared about, it mattered. San Antonio v. Rodriguez and Milliken v. Bradley -- which combined lent the Court's imprimatur to schools that were both separate and unequal -- were both 5-4 with all of Nixon's appointees in the majority.

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Public Opinion and the Court

I've been meaning to do a writeup about several recent books analyzing the Supreme Court in political context. As a prelude to my comments below, my short take on Barry Friedman's book is that it's good and useful, but tends to conflate one powerful and convincing argument (the Supreme Court rarely acts without substantial support from powerful political forces) with a much less convincing argument (the Supreme Court tends to follow public opinion.) I'll expand on that argument later, but I think something like this problem crops up in his recent piece with Dahlia Lithwick. It's good that the myth that the Court is a generally "counter-majoritarian" institution is being questioned by commentators, but I think at times some caution is in order.

I don't quibble with the claim that Citizens United is probably inconsistent with public opinion, but rather with the idea that this represents a failure (on its ow terms) on the Court's part. I'm a little puzzled by the claim that the Roberts Court has "an uncanny sense of just how much activism the public will tolerate." With some high-profile exceptions, I think the public is willing to tolerate a pretty wide range of judicial activism, if only because it simply doesn't pay attention to most Supreme Court decisions. (I'm fairly confident that there would not have been any impact on public opinion had the Court decided to explicitly overrule McConnell or Flast v. Cohen in its first term.) I don't see what consequences will flow to the Court if Citizens United is nominally unpopular among the public, because it's such a low salience issue. If there's any substantial pushback against the Court, it will come from Congress.

I also don't really buy this:

Consider, too, that Anthony Kennedy is actually the one tone-deaf guy on the usually pitch-perfect Roberts Court. He thrives on being the swing justice, a man of history. But unlike his predecessor in that role, Sandra Day O'Connor, his chest cavity does not include a built-in barometer of the public mood. Kennedy's nothing if not self-assured; he has a sense of rectitude that inclines him to plunge forward once he's made up his mind.

I think the comparison with O'Connor is erroneous. Despite her centrism and preference for narrow opinions, all the evidence I'm aware of suggests that she was nothing if not self-assured, and justices who thought she could be persuaded were almost always disappointed. (It was Kennedy, not O'Connor, who switched sides to join Casey; O'Connor's abortion jurisprudence was always consistent.) In addition, while many people assume that O'Connor's famous centrist landmarks reflected a concern with public opinion, I think this is actually highly debatable. It's true, for example, that Casey was a decent approximation of public opinion, but then it's also exactly the opinion you would expect from a Court whose median votes were country club Republicans whether they cared about public opinion or not. (And note that public opinion can't explain why O'Connor chose to strike down the spousal notification provision in Casey, which was roughly as popular as the ones she upheld.) I'm also curious which one of Kennedy's famous opinions they consider unpopular. Lawrence is certainly consistent with national public opinion. The death penalty cases are tougher, because they deal with such narrow exceptions that there isn't a lot of data, but at a minimum there's no strong national consensus in favor of maintaining the death penalty for adolescents or the mentally handicapped.

I don't mean to suggest that the justices completely ignore public opinion, and I think that some concern with public reaction may help to explain the Roberts Court's usual fetish about minimalism. But I think it's easy to exaggerate the role of public opinion, too. The Court has substantial freedom to diverge from public opinion when it has political support, and when the ideology of the median votes leads in that direction I expect the Court to go there, as it probably did in Citizens United.

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You Disagree With Tony Kennedy (When He Reaches a Conservative Result), You Oppose the Rule of Law

Paul and I have compiled some examples of conservative academics arguing that Obama needs to be sent to Sally Quinn Reeducation Camp or something for disagreeing with an innovative constitutional doctrine just announced by a bare majority of the Court. At the time, though, I missed an even funnier argument, namely William Jacobson's assertion that by criticizing the Court, Obama was threatening the rule of law itself:

The attack on the Supreme Court exposes the intolerance of this President. The politician who campaigned and allegedly champions the rule of law actually has very little use for the rule of law when it does not advance his political agenda.

This is an...interesting argument. Let's examine some other examples of prominent public officials who, in disagreeing with decisions announced by the Supreme Court, therefore oppose the rule of law:

• "The 10th anniversary of the Supreme Court decision in Roe v. Wade is a good time for us to pause and reflect. Our nationwide policy of abortion-on-demand through all nine months of pregnancy [sic] was neither voted for by our people nor enacted by our legislators — not a single state had such unrestricted abortion [sic] before the Supreme Court decreed it to be national policy in 1973. But the consequences of this judicial decision are now obvious: since 1973, more than 15 million unborn children have had their lives snuffed out by legalized abortions. That is over ten times the number of Americans lost in all our nation's wars...Make no mistake, abortion-on-demand is not a right granted by the Constitution." --Saint Ronald Reagan, 1983
• "After a day of consideration, the McCain Campaign has decided to come out hard against yesterday's 5 to 4 decision to grant more rights to court review for enemy combatants held at Guantanamo Bay, Cuba. "The United States Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country," McCain said. He went on to quote from Justice Roberts dissent in the case, rail against "unaccountable judges," and say that the courts are about to be clogged with cases from detainees."

The 2008 election was contested between two candidates who oppose the rule of law -- shocking! Anyway, I could go on, but since I assume that even Jacobson himself doesn't believe in this ridiculous definition of the "rule of law" cataloging further examples would be redundant.

For further comedy, in attempting to claim that Obama's public disagreement with 5 of the Court's 9 members was "unprecedented," Col. Mustard uncritically quotes someone asserting that "[e]ven President Franklin D. Roosevelt, who had a lot of grievances with the Court, never mentioned it in any of his State of the Union messages." This might strike you as implausible in the extreme. Well, I happen to have FDR's 1937 State of the Union Address right here, and...

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The Alito/Obama Non-Story

Neither did anything wrong.

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Yet More Citizens United

I have an article up at The American Prospect putting Citizens United in context as the latest manifestation of the Court's increasing sympathy to the interests of big business.

Some other links of interest:

• Lithwick.
• Liptak.
• Hasen.
• Denniston.
  

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Citizens United

I have more substantive thoughts here. On the point of Roberts's fraudulent "minimalism," I should also note this bit of comedy from Roberts's concurrence, explaining why he voted to overrule two (or, perhaps I should say, one and a half) precedents:

We have had two rounds of briefing in this case, two oral arguments, and 54 amicus briefs to help us carry out our obligation to decide the necessary constitutional questions according to law. We have also had the benefit of a comprehensive dissent that has helped ensure that the Court has considered all the relevant issues.

See, if you think really hard about a case, the case is important enough to generate a lot of amicus briefs, and there's a "comprehensive dissent" signed by 4 justices, overruling precedents even if it's not necessary to decide the case is perfectly fine! This would seem to be a rather, ah, minimalist conception of "minimalism." What important overruling of a landmark precedent wouldn't qualify under this standard?

Not, of course, that I object per se -- better this than Roberts's usual routine of pretending he's not overruling precedents that he's overruling. But can we stop pretending that minimalism has any real content?

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Supremes: Opressed Corporations Lack Political Influence

In a widely expected decision, the Supreme Court ruled 5-4 today that restrictions on corporate campaign spending are unconstitutional. More later today when I've had a chance to read it, but in the meantime I can't resist quoting Mark Tushnet:

Political Scientist Peter Irons wrote a book about sixteen people who took their constitutional claims to the Supreme Court. They included Mary Beth Tinker, who successfully challenged her school board's policy barring her from wearing a black armband to protest the war in Vietnam...Irons called the book The Courage of Their Convictions.

Recently, the winner in Supreme Court cases upholding First Amendment claims have been James Buckley, brother of publisher William F. Buckley who became a United States Senator and federal judge, the Colorado Republican Campaign Committee, and the First National Bank of Boston. Perhaps someone writing a book like Irons's today should call it The Color of Their Money.

Of course, it's not like the Court's conservatives aren't also "free speech" libertarians when it comes to isolated individuals punished for allegedly expressing unpopular views...right?

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Compared To What?

I'm certainly no admirer of Justice Kennedy's jurisprudence, but I nevertheless found Eric Posner's critical (of both Kennedy and the book) review of a recent book about AJK somewhat slippery and disappointing. I haven't read the book, but according to Posner Colucci argues that Kennedy's jurisprudence is more internally consistent than Kennedy's harshest critics acknowledge. Posner will have none of it:

For Kennedy’s libertarian reading of the Constitution to be jurisprudentially respectable, that reading must be based on the text of the Constitution, Founding-era understandings, precedents, constitutional traditions, or other legal sources external to his moral views. Otherwise, he cannot duck the argument that he simply enforces his moral views, which happen to be libertarian.

Colucci identifies some clues but they do not add up to a jurisprudence. Kennedy endorses the familiar idea that judges should not enforce the original understanding of the Constitution, but should constitutionalize and enforce evolving social values. Yet Colucci offers no evidence that Kennedy tries to enforce evolving social values. Why does Kennedy believe that society gives priority to liberty over all the other evolving social values that could be identified—equality, diversity, and privacy, to name a few? Neither Colucci nor Kennedy answers this question. Lacking an explanation, Colucci’s defense of Kennedy doesn’t make any headway against the suspicion that Kennedy votes his moral instincts, thus abusing his judicial role.

This line of criticism -- which is based on what I would see as an excessively formal separation between law and "moral instincts" -- has some clear flaws as a criticism of Kennedy in particular. If the claim is that Kennedy literally does nothing but vote his moral instincts, entirely ignoring "legal sources" -- the claim is quite clearly false, unless you think that Kennedy favors every economic regulation passed by Congress or a state government that wasn't stuck down by the Courts during his tenure. If we assume that Posner is making a more plausible claim -- that Kennedy's moral and political values affect his decisions in cases in which legal materials plausibly support multiple conclusions -- then the criticism is true but lacks much bite insofar as no Supreme Court justice has a "jurisprudence" by this standard. No justice -- most certainly including Scalia and Thomas -- consistently finds that "legal materials" trump their most cherished moral instincts." (It should also be probably be noted here that Posner's excoriation of Kennedy manages to leave out the worst opinion Kennedy will ever write, which was of course joined by the conservative justices we're implicitly meant to believe are more principled. Anybody care to mount an "originalist" defense of Bush v. Gore?)

So why single out Kennedy here? Posner does have an answer:

Kennedy stands out from his colleagues because of the frequency with which he votes to strike down statutes, and the vapid, flowery language he uses to explain his decisions. His aggressive posture toward statutes jars democratic sensibilities, and cuts against a scholarly trend favoring judicial deference. Although striking down statutes is hardly new, in the current environment it demands a more muscular justification than Justice Kennedy has delivered. Instead he delights in gaseous pronouncements. ["Meaning of life" passage from Casey that according to federal law must be cited in every conservative critique of Kennedy although it's not terribly important to the opinion omitted.]

The fact that Kennedy's opinions do contain some irritating prose isn't very helpful to the larger points under discussion, since they hardly constitute the entirety of the justifications offered in the long opinions in which they're embedded. The claim that Kennedy is worse than other Justices because he votes to strike down statutes with an unusually high frequency would be more convincing. But the problem is that it's not true. While it's literally true that Kennedy voted to strike down more statutes than any member of the late Rehnquist Court, every justice on the Court with the exception of Rehnquist voted to strike down legislation at an essentially similar rate.

While I can't say anything about Colucci's book, then, I wouldn't say that Posner's rebuttals are very convincing.

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The Constitutionality of the Filibuster

Sad, but true. I'm particularly wary of trying to construct an argument that the filibuster is unconstitutional using the same kind of logic that's used to argue that health care reform is unconstitutional. I'm also puzzled by the attempt -- which will be familiar to people who read stuff analyzing the legitimacy of judicial review -- to claim that there's something unusual or constitutionally deviant about a counter-majoritarian rule within the American political system. Pretty much everything about the Senate was constructed to be counter-majoritarian. This makes it a very bad political institution, but it makes it hard to claim that individual instances of counter-majoritarian rules explicitly permitted by the text are implicitly unconstitutional.

As an addendum, I suppose it's worth addressing Geoghegan's assertion that "we needn’t rule out the possibility of a Supreme Court case. Surely, the court would not allow the Senate to ignore either the obvious intent of the Constitution." On this, Matt is of course correct that the Supreme Court would probably not even hear the case, and if it did I would be willing to bet serious money that it would uphold the filibuster with a minimum of 8 votes, in terms probably similar to Nixon v. U.S..

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Honest Services

Both Adam Liptak and Lyle Denniston see, after Tuesday's oral arguments, a strong cross-ideological consensus (excluding John Paul Stevens) that the "honest services" statute often used to prosecute corruption cases is unconstitutional. My first reaction, admittedly, is to ponder the cynicism of the Court's right flank; it's hard to imagine Roberts and Alito, in particular, caring in the least about vague statutory language or the arbitrary application of criminal statutes in cases where the defendants weren't frequently rich white men in suits.

Regardless of their motivation, though, and despite the fact that I have less than no sympathy for Conrad Black, I have to say that the arguments that the statute is constitutionally vague strike me as quite convincing:

Justices across the court’s ideological spectrum took turns on Tuesday attacking the law as hopelessly broad and vague.

Justice Steven G. Breyer estimated that there are 150 million workers in the United States and that perhaps 140 million of them could be prosecuted under the government’s interpretation of the law.

Complimenting the boss’s hat “so the boss will leave the room so that the worker can continue to read The Racing Form,” Justice Breyer said, could amount to a federal crime.

See also Scott Horton, who notes some of the highly flimsy prosecutions brought under the statue. The whole area of law is an object lesson of how vague statutory language is an open invitation to prosecutorial abuse, and the fact that some bad people have been caught in the web doesn't change that. The government may need additional tools to prosecute corruption (although note that Joe Bruno was convicted for good old-fashioned mail and wire fraud, not on the vaguer charges), but the statutory language really does need to be more specific.

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Not All Bad Policy Is Unconstitutional

Attempts to use Pfzier pulling out of New London to argue that Kelo was wrong rather than using it to argue that the New London and Connecticut governments were involved in stupid public policy really gives away the "conservatives object to same-sex marriage because of teh judicial activism!!!1!1!" show. It's not just that it's obviously a policy argument, but in the vast majority of cases there's really no pretense otherwise.

Another thing to note is that eminent domain is just one instance of large corporate welfare scheme. Even had the development scheme that required eminent domain never gotten off the ground, New London would still be out the tax breaks, subsidies, and giveaways of public land, and the decentralization of economic regulation conservertarians like so much makes this kind of stuff more, not less, likely. The Courts are probably right not to use the commerce clause to stop these stupid subsidies, just as they were probably right in Kelo. Kelo deserves sympathy for having her house appropriated for a stupid project, but she was protected by the takings clause: she got compensation, while New London's other taxpayers weren't. (I do think Marty Lederman had a point that the courts would be better policing eminent domain abuse by ensuring that takings compensation is on the high side.)

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Juvenile Sentencing and the Eighth Amendment

Lithwick does a good job of summarizing the issues surrounding upcoming oral arguments about whether the 8th Amendment proscribes life-without-parole sentences for juveniles, but one set of facts under consideration raises another set of questions:

Terrance Jamar Graham tried to rob a restaurant with two accomplices. He was charged as an adult and pled guilty. When he violated probation, Graham was sentenced, without trial, to life without parole. He was 17. In both cases the sentencing judges were certain these boys were beyond hope or help.

Even if Graham was 22, it would seem to me that the sentence could be plausibly argued to be disproportionate even under the Supreme Court's excessively narrow standards in Ewing (which still prohibits sentences that are "grossly disproportionate to the crime.") Florida's case looks a little stronger given that the parole violation Graham was accused of was an armed home invasion robbery, but giving him a life sentence on that basis should raise grave due process concerns. If Florida wants to sentence him based on the home invasion, it should prove that he committed the crime in a fair trial (or adduce a plea, which would presumably involve a lesser sentence.) As of now, Graham is getting life-without-parole sentence at a young age for a single robbery charge and a parole violation, which shouldn't be permitted under the 8th Amendment even if he was a little older.

The other thing to note here is the extreme nature of the cases under review (the other case involves a 13 year-old convicted -- on pretty flimsy evidence -- of a serious, but lesser than homicide, violent crime and receive l-w-p) raises the stakes considerably. One the one hand, they make it more likely that Anthony Kennedy's sporadic conscience will be shocked. On the other hand, if the Court upholds the convictions it would essentially send the message that states have almost unlimited authority to give draconian sentences to juveniles as long as they're not actually sentenced to death.

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Your Point Being?

You may remember, in one of the worst slippery slope arguments ever, school district lawyers objecting to the Supreme Court's salutary decision in Safford School District v. Redding because it might inhibit school administrators from conducting humiliating searches of young women based on pitifully weak evidence that they have committed trivial offenses. Uh, I think that was the point! Dahlia Lithwick identifies something similar in yesterday's oral arguments from lawyers arguing that prosecutors who locked two innocent people up for 25 years based on willfully fabricated evidence should have absolute immunity from suit:

Katyal clarifies that "absolute immunity doesn't exist to protect bad apples. It reflects a larger interest in protecting judicial information coming into the judicial process." He says, "If prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence."

But Sotomayor retorts that you want a prosecutor to "flinch when he suspects evidence is perjured or fabricated." In fact you want him to do more than just flinch. You want him to stop. She adds that the two prosecutors in this case were never disciplined for their conduct.

Attempting to make prosecutors liable is, admittedly, a very knotty problem, for reasons the article states well. But to the extent that prosecutors will be inhibited from knowingly using illegal evidence, the argument against absolute immunity actually becomes pretty straightforward.

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Economic Regulation at the Court

Adam Liptak notes that this term's docket has a large number of cases about economic regulation:

By the time the justices left for their summer break in June, a majority of the cases they had agreed to hear — 24 of 45 — concerned business issues, according to a tally by the National Chamber Litigation Center of the United States Chamber of Commerce. The corresponding numbers last year were 16 of 42.

The nature of the cases has changed, too. In recent terms, the business docket was studded with cases about employment discrimination, federal pre-emption of injury suits and the environment. With the exception of a single employment case, all of those categories are missing.

In their stead, important questions about bankruptcy, corporate compensation, patents, antitrust and government oversight of the financial system will confront the justices.

Free Enterprise Fund v. Public Company Accounting Oversight Board, No. 08-861, for instance, concerns an issue that has engaged the court since the New Deal: at what point does the lack of presidential control over independent agencies violate separation-of-powers principles?

[...]

In Jones v. Harris Associates, No. 08-586, the Supreme Court will decide what role the courts should play in regulating the compensation paid to investment advisers for mutual funds. In affirming dismissal of the case, a unanimous three-judge panel of the United States Court of Appeals for the Seventh Circuit, in Chicago, said the issue was a variation on the much-discussed question of whether the markets could be trusted to set executive compensation.

There are other examples. While these cases tend to attract a lot less attention than "social issue" cases, they're very important, especially in this political and economic context. I agree that this increases the potential for confrontations between the Court and the political branches. They'll also give us a good idea about whether Sotomayor is less pro-business than the other more liberal members of the current Court.

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Sotomayor on Economic Issues

An interesting article by Jess Bravin about Sotomayor's recent oral argument queries about whether treating corporations as the equivalent of persons for constitutional purposes:

But Justice Sotomayor suggested the majority might have it all wrong -- and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.

Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with...[imbuing] a creature of state law with human characteristics."

After a confirmation process that revealed little of her legal philosophy, the remark offered an early hint of the direction Justice Sotomayor might want to take the court.

"Progressives who think that corporations already have an unduly large influence on policy in the United States have to feel reassured that this was one of [her] first questions," said Douglas Kendall, president of the liberal Constitutional Accountability Center.

It does seem possible that while Sotomayor might be a Breyeresque wet on civil liberties issues, she may also bring an economic liberalism that really has no representation on the current Court.

The rest of the article is very much worth reading, with good background information about Santa Clara County. What's striking is how cursory the arguments in favor of the very important concept of corporate personhood were, although the constitutional text is silent either way and it's certainly not obvious that it follows from the classical liberal principles that animated the rights in question.

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Campaign Finance and Oral Arguments

In response to Jeff Rosen's recent argument that Elena Kagan blew it at the recent oral arguments on a campaign finance case, Yglesias argues that oral arguments at the Supreme Court probably don't matter anyway. John Sides responds with a summary of some recent scholarship buy Johnson, Walbeck, and Spriggs:

We posit that Supreme Court oral arguments provide justices with useful information that influences their final votes on the merits. To examine the role of these proceedings, we ask the following questions: (1) what factors influence the quality of arguments presented to the Court; and, more importantly, (2) does the quality of a lawyer’s oral argument affect the justices’ final votes on the merits? We answer these questions by utilizing a unique data source—–evaluations Justice Blackmun made of the quality of oral arguments presented to the justices. Our analysis shows that Justice Blackmun’s grading of attorneys is somewhat influenced by conventional indicators of the credibility of attorneys and are not simply the product of Justice Blackmun’s ideological leanings. We thus suggest they can plausibly be seen as measuring the quality of oral argument.

A couple points:

• Even assuming that the J/W/S data establishes that the causal relationship runs in the direction they claim (i.e. that Blackmun didn't just consider oral arguments better when he agreed with them on the merits a priori), generalizing from the case they use is very problematic. It's not just that it's an n of 1 -- whatever might be optimal, in practice social science frequently has to proceed through small case studies. The bigger problem is the identity of the n in this case. Small case studies are most convincing when they represent "tough cases"; that is, if a case shows something occurring when one would expect the opposite. If you were going to name a Supreme Court justice who was unusually likely to be affected by oral arguments in marginal cases, however, the insecure, indecisive, and fussy Blackmun would be at the top of the list. I would be very leery about assuming that this applies to other justices.
• Even if we assume arguendo that Blackmun represents the rule rather than the exception, I think Rosen is engaging in a classic pundit's fallacy. On the merits, I agree with Rosen 100% that the ability of monied interest to dominate political campaigns and the consequences for democracy are a more convincing justification for campaign finance restrictions than the need to alleviate the appearance of corruption. The idea that an argument based on structural inequality is more likely to convince the conservative Republicans who represent a majority of the Court, however, is unpersuasive in the extreme. Kagan made the argument most likely to appeal to the median justice; it almost certainly won't work, but that's because she was drawing dead, not because she made a strategic error.
  

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