Monday, June 03, 2013

SCOTUS Shocker: Scalia on the Right Side, For Once

Unfortunately, it's the losing side of the 5-4 decision declaring DNA sampling at arrest time to be constitutional.

But WTF happened with Breyer?


doug said...

Lisa, I'm going to read the full decision and dissent given the odd alignment here. Fascinating!

Lisa Hirsch said...

Yeah. I wonder whether Scalia's dissent was on different grounds from those of Kagan, etc.

doug said...

Believe it or not, our beloved Antonin wrote the decision and the other three joined him. What's next, he sides with marriage equality???

Lisa Hirsch said...

That would probably give me a heart attack.

CK Dexter Haven said...

My favorite "strange bed-fellows" case was Granholm v. Heald (2005), the case that struck down state laws that permited in-state wineries to ship directly to consumers but prevented out-of-state wineries to do so. It was a 5-4 opinion, with Kennedy writing the opinion for the Court, and joined by Scalia, Souter, Ginsburg, and Breyer. (Read that again for full effect).

Thomas wrote a dissent that was joined by Rehnquist, Stevens, and O'Conner, plus Stevens wrote a separate dissent that O'Conner also joined.

I think the current case you mention is just the latest example of the fact that trying to pigeon-hole the justices into ready-made buckets doesn't work as well as we think it should. We may think we know what they will decide and/or how they will decide them, but -- surprise, surprise (he says quite sarcastically) -- they happen to be extremely thoughtful jurists deciding cases on their merits using their own deeply held philosophies in interpreting the law. We may or may not agree on those particular philosophies, but to assume they adjudicate based on stuff outside that philosophy is, in my humble opinion, almost always folly.

I, for one, think SCOTUS works best when it represents the broad opinion of this diverse country. We need the Scalias as much as we need the Ginsburgs, and we need them on the Court at the same time. I'd shudder to think of a court with 9 Kennedys, as loveable as he is.

Lisa Hirsch said...

Wow, that is a weird breakdown of the justices indeed.

I actually somewhat disagree that we need the Scalias; he is quite a bit farther to the right than Ginsburg is to the left. Also, here are a couple of graphics illustrating the polarization of the court:

Pro-Business Court

Supreme Court's Move to the Right since the Warren Court.

An Older, More Conservative Court since 1937.

The Times also generally runs an end-of-the-season graphic showing all decisions and where the justices voted.

doug said...

CK: I respectfully disagree, though I wish I could agree. I think this court is far from balanced and notably right leaning. My surprise at this decision wasn't typical because this court is usually quite predictable. Would that there were more surprises! Scalia is an interesting thinker and great writer, but he's also a hypocrite whose decisions do not match his "originalist" lip service as often as not. Obama's appointments are not very liberal at all and I agree with Lisa that the left of the current court isn't as far leaning as the right.

Lisa: Thanks for those links. The proof is in the pudding, concurs this crazy vegan, non-pudding eating fan of your blog. ;)

I appreciate the conversation, you two, including constructive disagreement.

CK Dexter Haven said...

doug: Thanks for the contrary, yet polite, opinion.

I agree with both of you that Scalia is more right than Ginsburg is left on absolute terms, though on this Court, she's probably the left most (though I think Sotomayor may end up being more liberal when its all said and done.)

Perhaps the more appropriate dichotomy would have been Antonin Scale v. Lawrence Tribe (though of course, Mr. Tribe never made it onto the Court).

Lisa Hirsch said...

Tribe never had a chance; he would not have made it out of committee. I would bet that in the long run Sotomayor ends up the farthest left of this court.

And yesterday the rare 9-0 decision, with all of the justices collectively rolling their eyes at the idea of patenting a human gene. They got this one right.

CK Dexter Haven said...

Yes, when The Court goes 9-0, you've just got to smile. Any super-majority , really, is cause for celebration in my book.

Today is full of interesting rulings:

- The Court striking down the Arizona voting law requiring ID (Arizona v. Inter Tribal Council of Arizona, Inc.) by a 7-2 vote w/ your buddy, Nino S., writing for the majority, and Alito and Thomas each writing their own dissents.

- The Court requiring the jury, not the judge, to determine if trial evidence supports mandatory minimum sentences (Alleyne v. United States), with a 5-4 majority consisting of the most unlikely of teams: Thomas(!) joined by Ginsburg, Breyer, Sotomayor, and Kagan). I love that Thomas assigned himself the majority opinion, only to have Breyer and Sotomayor (joined by Ginsburg & Kagan) each write concurring opinions. I can imagine the reasoning: "Well, ok, we'll vote with you, but we ain't signing on to one of your opinions . . ."

- A 5-4 ruling in Maracich v. Spears, a case about exceptions to the Driver's Privacy Protection Act, with Scalia and Breyer once again seemingly swapping idealogical sides. Kennedy wrote for The Court, joined by a fun mix of The Chief, Thomas, Breyer, and Alito. Scalia assigned the dissent to Ginsburg, with Sotomayor and Kagan joining along.

To me, the most interesting idealogical split that has been evolving over the past couple of years is Alito increasingly going off on his own. When he first joined, I think he voted with The Chief 100% of the time (or damn near close to it). These days, he's becoming more and more of an iconoclast -- not quite to the level of Thomas and certainly not of the same flavor of Thomas; that said, he's got some quirky points of view that are bubbling to the surface.

doug said...

What a fascinating day of published opinions. CK: You articulate them so clearly and with a welcome sense of fun and adventure. The rest of the month promises more interesting decisions and, hopefully, more surprising alliances.

CK Dexter Haven said...

Not to say, "I told you so" regarding Alito, but . . . well . . .

One of the decisions handed down today was 8-1, with Alito being the sole dissenter: Descamps v. United States

CK Dexter Haven said...

And I meant to say this a few times earlier:

While I think that Lawrence Tribe is far too liberal for my personal taste, I think that it was truly sad that he never made it onto The Court. As I said before, I believe we need range of opinions on SCOTUS. What I didn't mention is that those opinions should ideally come from brilliant minds on both sides of the issues. No matter how often I disagree with him, Prof. Tribe is definitely brilliant in espousing his point of view.