Supreme Court Kagan Will Join Is Conservative And Fractured

Now that Elena Kagan will fortunately be confirmed as a Supreme Court justice, I wanted to examine the current Court’s philosophy and members.

First, it is exciting for women that for the first time in our country’s history, three females will be serving on the highest court. It wasn’t so long ago that Sandra Day O’Connor became the first woman to do so in 1981.

In addition, there will be six Catholics and three Jews on the Court for the first time in history.

As a personal injury trial attorney, the decisions handed down by the Supreme Court affect my clients’ rights as well as the future of this great country.

It was just last June that the Court’s annual term ended with both restraint and a suspense, as the justices left the Voting Rights Act intact and ordered reargument in Citizens United v. Federal Election Commission, the controversial campaign finance case.

Now, just a year later, the decisions from the Court have changed — for the worse. Judicial activism is rampant. Strict Constitutional construction has gone out the window as outcome-determinitive results rule the day. Republican versus Democratic, conservative versus liberal/moderal fault lines have erupted. Important precedents are often set with the slimmest 5-4 margins. Decisions are frequently unpredictable and logic specious.

That will only intensify with the retirement of Justice John Paul Stevens, a 35 year veteran of the Court and the leader of its liberal wing, even though he is being replaced by Kagan.

Chief Justice Roberts, who joined the court five years ago, took control of it this year, pushing hard on issues of core concern to him, including campaign finance, gun rights and criminal procedure. He was in the majority 92 percent of the time, more than any other justice. Last year that distinction went to Justice Anthony M. Kennedy, who is often regarded as the court’s swing vote. I met Justice Kennedy several years ago when he was in Fort Worth at Texas Wesleyan Law School.

The centerpiece of the last term was, of course, the 5-to-4 decision in Citizens United, allowing unlimited corporate spending in elections. The ruling generated waves of criticism, including comments from President Obama at the State of the Union address in January. It was the most controversial decision since the Rehnquist court handed the presidency to Mr. Bush a decade ago in Bush v. Gore, and it was easily the most debated of the Roberts court era so far. The outcry did not chasten the court.

Some of the issues that have most engaged the Court in recent years were missing this term, which included only one decision concerning national security and none about abortion or about prisoners held at Guantánamo Bay, Cuba.

The Court continued its push to broaden Second Amendment rights, ruling on Monday that the Amendment’s protections apply to state and local gun control laws as well as to federal law.

And the justices further limited the rights of criminal defendants. Last term, the court narrowed earlier decisions barring the use of evidence obtained through police misconduct.

This term, the court was focused on the Miranda rule, which requires the police to warn suspects in custody of their rights before interrogating them. In three decisions this term, the court allowed the police to vary the language of the warning, insist that suspects speak in order to protect their right to remain silent and resume questioning after suspects have invoked their rights.

The court acted quickly — and, some critics said, rashly — in intervening in cases without full briefing and argument. In January, it halted the broadcast of the trial over same-sex marriage in San Francisco partly on a rationale it seemed to disavow five months later. This month, it sent elections in Arizona into disarray by barring the use of a 12-year-old campaign finance law.

Chief Justice Roberts provided a sixth vote in the decision banning life-without-parole sentences for juvenile offenders, though on a narrower ground than the majority. He was the only justice to join every part of Justice Ruth Bader Ginsburg’s majority opinion casting doubt on the conviction of Jeffrey K. Skilling, the former Enron executive.

And the chief justice joined the court’s four more liberal members — Justices Stevens, Ginsburg, Stephen G. Breyer and Sonia Sotomayor — in Justice Breyer’s majority opinion affirming Congressional power to authorize the civil confinement of sex offenders. Justices Kennedy and Alito filed concurrences, making the vote in the case 7 to 2.

Chief Justice Roberts is not wedded to a single judicial methodology like the originalism and textualism that are the touchstones for Justices Scalia and Thomas.

Justices Scalia and Thomas, who voted together 92 percent of the time — the highest of any pair of justices — often take positions based on jurisprudential principles without regard to the outcome in a particular case. In criminal cases, Mr. Clement said, “It’s striking how often if the court gets to a pro-defendant result the majority includes Justice Scalia.”

Chief Justice Roberts and Justice Alito, by contrast, can appear more pragmatic.

Nor does Chief Justice Roberts seem as interested in exploring the limits of federal power as Chief Justice William H. Rehnquist, who died in 2005, and Justice Sandra Day O’Connor, who retired in 2006, had been.

There were more surprises and unusual alliances in this term than in most recent ones. Justice Stevens, for instance, joined the court’s five more conservative members in voting to uphold provisions of a law making it a crime to provide even benign and intangible aid to foreign terrorist organizations.

Justice Sotomayor’s replacement of Justice David H. Souter last year turned out to do almost nothing to alter the court’s ideological balance. She voted with Justices Ginsburg and Breyer 90 percent of the time. Some liberals had feared that her experience as a prosecutor would make her skeptical of some claims from criminal defendants, but she voted in a reliably liberal direction in those and other cases. Her first major dissent was in a case narrowing Miranda rights.

Similarly, the replacement of Justice Stevens by a Justice Kagan, a 50-year-old who has never served as a judge, would in all likelihood do little to affect the voting lineups on the court. But the departure of Justice Stevens nonetheless represents a turning point.

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