As the Justices take the bench for the start of the new Term, Dahlia Lithwick and I take the conservative majority to task for how they have been conducting business.  Click here to see our piece published in Slate:


This is going to be a big week in Supreme Court.  Elena Kagan’s confirmation hearings begin on Monday.  That is the same day we likely will see some of the Term’s big decisions.  I will be doing some blogging on Yahoo! News, though if you want some immediate thoughts keep reading.

There are at least two major pending cases that likely would come down on Monday.  There is the case involving the constitutionality of Chicago’s gun ordinance.  And there is another case challenging the constitutionality of the agency Congress set up to patrol accounting firms after the Enron and WorldCom scandals.

It is not obvious why the Chief Justice would have wanted these cases to happen on the same day that millions tune into the Kagan hearings, if there is anything in the decisions that will lead to heat on the current five-member conservative majority.  Typically the Chief has some control over when decisions come down.  So, some guesses:

1. The decisions will not come down in a conservative direction.  This is not my best guess – I think the Chicago ordinance and the congressional agency are going down.

2. The liberals on the Court were still drafting opinions in response so that release was not ready earlier, when it would be less of a problem.  Or maybe the liberals stalled things out for precisely this reason.

3. If the decisions don’t come down this week, then I’m guessing the Chief had a hand in making sure the collision didn’t happen.

If you think I’m painting the justices as a little too Machiavellian . . . well, this very sort of thing happened in the spring of 1937 as the country was considering FDR’s plan to pack the Supreme Court.  Want to hear more?  Read chapter 7 of my book (including the footnotes!) and Jeff Shesol’s great new book on the Court-packing plan, Supreme Power.


During her confirmation hearings Justice Sonia Sotmayor insisted that the law decides cases, not a justice’s background or ideology.  Linda Greenhouse recently expressed hope that Sotomayor will abandon that line on the Court.  But why?  What could be more instructive than watching Supreme Court justices reaching opposing results while claiming to apply the same law neutrally?

Writing this weekend in The Opinionator, the New York Times’ on-line adjunct, Linda Greenhouse noted the superficial affinity between Sotomayor’s and Chief Justice John Roberts’ views of the law.  Roberts in his confirmation hearings hewed to the neutral law and neutral judge line, famously saying that “Judges are like umpires. Umpires don’t make the rules; they apply them.”  After the flap about her prior remarks that a judge’s background influenced decisions, in her confirmation hearings Sotomayor also took the neutrality line on law and judging.  She appeared to disavow the very characteristic President Obama identified as important to a good justice:  empathy.

But Greenhouse looks at a recent ruling of Sotomayor’s, and expresses the hope that “she does understand, after all, that something beyond an abstraction called “the law” determines how judges behave.”  The basis for Greenhouse’s hope was that Sotomayor signed on to a “statement” Justice John Paul Stevens wrote in the decision to deny a stay of execution to John Allen Muhammed, the D.C. area sniper recently executed by the State of Virginia.  In that statement, Stevens complained about the practice of setting execution dates for inmates before their appeals to the Supreme Court had run their course.

I’m not sure why Greenhouse wants Sotomayor to acknowledge that “something beyond an abstraction called ‘the law’ determines how judges behave.”  Perhaps simply because Greenhouse believes this is true – and if so then she is surely right, at least with regard to salient tightly-balanced Supreme Court cases.  (On the other hand, one might hope for the sake of the rule of law that Greenhouse is not right in countless cases faced by lower court judges.)  But wanting Sotomayor to acknowledge the fact is an entirely different matter.  It is less clear why Greenhouse wants this.

From the baloney fed the public by Supreme Court nominees at their confirmation hearings, one can only assume that the public itself wants to believe “an abstraction called ‘the law’” decides Supreme Court cases.  If not, why would the nominees take this line so devoutly?  Perhaps Senators who must do the confirming believe it, and don’t care what their constituents think, but this story is a little hard to buy.  One must assume nominees say this because it resonates with the public.

At the same time, one is wise to recall Robert Bork’s defeat in just such circumstances.  As I make clear in my chapter 7 of my book, The Will of the People, Bork’s nomination faltered on the fact that the public cares about the results of Supreme Court decisions, not the methodology by which they are reached.

Given the fact that so many conservative results lately are rendered under the supposed neutrality of the law, what Greenhouse really might have hoped is that Sotomayor would hew to the neutrality line while regularly voting the opposite way of the Chief Justice.  Imagine that:  Two Justices, each claiming fidelity to the same neutral and dispositive law, reaching wildly-differing outcomes.  How could that be?

Now, that would be something to think about.