Listener Mailbag Part II

Today, our hosts are taking a break from the news cycle to share some fun ...

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Today, our hosts are taking a break from the news cycle to share some fun facts about the Supreme Court and answer a series of questions from their listener mailbox: Are Democratic-appointed Supreme Court justices more ideologically reliable than their Republican-appointed counterparts? What are some cases where you are inclined to agree with the legal reasoning but were bothered by the policy outcome? And perhaps most important, how should one go about hiring an attorney? Sarah and David have the scoop.

Show Notes:

-“Cleaning Up Quotations” by Jack Metzler in the Journal of Appellate Practice and Process.

-“ ‘(Cleaned Up)’ Parenthetical Arrives in the Supreme Court” by Eugene Volokh in Reason.

-“Larry Flynt’s Life in Contempt” by Ross Anderson in Los Angeles Magazine.

–“Empirical SCOTUS: Interesting meetings of the minds of Supreme Court justices” by Adam Feldman in SCOTUSBlog.

–Federal Tort Claims Act and Immigration and Nationality Act.

-Cases they mentioned: Keeton v. Hustler Magazine, Inc.,  Knick v. Township of Scott, Bostock v. Clayton County, Masterpiece Cakeshop v. Colorado Civil Rights Commission, Our Lady of Guadalupe School v. Morrissey-Berru, Morse v. Frederick, Rucho v. Common Cause and Kelo v. City of New London.

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Comments (20)
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  1. Mathew A

    I think overall good analysis, but on way to many big cases conservative justices twisted the constitution, or the statue just as much as any liberal justice.

    Most famously of course
    Obamacare
    Gay Marriage
    and now Transgender with Bostock

    Furthermore, I would argue their refusal to give the 2nd amendment any teeth is a travesty. Somehow make no law has transformed to just about any law you want.



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    Matt Y.

    Dangling modifier alert:

    "Flynt had wanted to represent himself, but clearly very drug-addled, the Court refused to allow this." 😳

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  3. Maurice Overby

    Sarah and David, if you haven’t read Ross Douthat’s review of “Promising Young Woman” in NR, I recommend it as necessary before discussing the film next week.
    BTW, given the troubling film tastes that The Dispatch Live casts have exposed, I suggest a remedial movie list be composed for Sarah, David, Jonah, and Steve, perhaps by friends of the family like Douthat, John Podhoretz, or, most importantly, Terry Teachout.

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    William Miller

    I really appreciate the discussion of the ideological composition of the recent court...the SCOTUSBlog piece you referenced is in the sweet spot for nerds like me who like amateur court watching and data analysis.

    Several previous commentors have mentioned that throwing Souter out of an analysis because he is "on an island" seems a little arbitrary and capricious. I think the concern with a lot of conservatives is about a trend that goes back beyond the current court and its most recent departures. It includes Eisenhower's self proclaimed "two biggest mistakes": Brennan and Warren (see link) who I don't believe were mentioned in the episode along with more recent examples like Souter, Kennedy, Roberts, and I hope not Kavanaugh or Barrett.

    https://www.nationalreview.com/bench-memos/day-liberal-judicial-activism-march-1-ed-whelan-4/amp/

    I also enjoyed the discussion about cases where you agreed with the legal reasoning but were disheartened it disagreed with the policy or practical outcomes. The recent example of this that applies most to me is McGirt v. Oklahoma.

    Criminal cases (especially reprehensible alleged sexual crimes) that are overturned by what appear to be legal technicalities are always tough to digest; I know the Franklin quote: "better 100 guilty Persons should escape than that one innocent Person should suffer". That one is easier in theory than in practice, especially when it sets a precedent that may help many felons with heinous crimes contest their sentences.

    I'm also worried about the ripple effects that McGirt could have on Tribal law down the line...especially the Court's view of exceptions to Montana v. U.S., which could have a big impact on my professional role. Scotus denied cert. on FMC Corp. v. Shoshone-Bannock Tribes in January which could have been the bridge between McGirts's application to criminal law and civil law. But they are having oral arguments next week on United States v. Cooley which I've been watching closely because it appears that respondent's counsel may be using it as the next vehicle trying to strengthen the exceptions to Montana or overturn it in whole.

    Despite the uneasiness I have with the policy outcomes of McGirt, I've been through Gorsuch's opinion several times and find it almost flawless from an originalist perspective. Disclaimer: Gorsuch is my favorite active justice. My paraphrasing of the logic of the McGirt opinion: Congress has the ability to do a lot of things in respect to Indian tribes, but just because they didn't do something explicitly a long time ago which is logistically burdensome and politically inconvenient to some now, we're not going to infer it into the law to save congress embarrassment.

    I think that opinion would have been much different, and worse, if any of the Democratically appointed judges in the majority, penned it...but they went along since it was the outcome they felt was "just" and it's what was needed to get Gorsuch on board. The "Other Chief Justice" Kagan at work.

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    Tiffw

    The exception to the Oscar nomination talk is the animated film category. There is a lot of good work in that category, and Soul has multiple nominations, which is exciting since animation is usually relegated to its own category.

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  6. Michael

    Now that you have teased the "ignoring Souter" issue, I think you will have to do an entire podcast about him. Being a New Hampshire attorney, I actually had one brief appearance in front of him when he was still a trial judge. Shortly thereafter, he was elevated to the NH Supreme Court and then the US Circuit Court of Appeals (1st Circuit) before being tapped by HW at the recommendation of his Chief of Staff, former NH Governor Sununu (father of the current Governor Sununu). Before all that, he was in the NH Attorney General Office serving under Warren Rudman (who later served two terms as US Senator) and later succeeded him as Attorney General.

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  7. Jackson

    Sarah, regarding Gerrymandering, you mentioned that the best remedy is to vote out the people who did the Gerrymandering in the first place. One of the reasons that (in my very uneducated legal opinion)k this needs to be handled by the courts is the Gerrymandering reduces the ability for voters to change that system through elections in the first place. If, for example, the voters in a state consistently support one party at 55 - 45 over their opposition, but the opposition has Gerrymandered the state's districts such that it takes over 60% support to overcome, the remedy is effectively unavailable. Granted that I know you're personally opposed to Gerrymandering, why doesn't this effect the legal analysis of whether courts can be involved in regulating this?

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    Cornelius O’Brien

    The complaint about Supreme Court justices bucking the party that nominated them is an old one. Eisenhower said something along the lines of "I regret two decisions I made as President and they're both sitting on the Supreme Court." Oliver Wendell Holmes was confirmed by a Senate that saw him as a safe and short term placeholder and he ended up serving 30 years on courts that were considered revolutionary.

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    Cgoldb

    David, your comments on the key to choosing a lawyer was spot on. A lawyer who thinks it is THEIR case instead of the client's case will mean nothing but grief for the client. And when they get a bill that outstrips anything they ever imagined the matter would cost, from a lawyer who they can't get ahold of to ask what is going on -- well that cures most rational people of ever wanting to be involved with lawyers again.

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    RND

    Interesting discussion of the ideological "loyalty" of various appointees. I note that statistically, throwing out Souter for the analysis is kind of an "other than that Mrs. Lincoln . . ." move. The guy was a Republican appointee for a few decades voting against the conservative position in virtually every case, and thus was himself largely the origin of the conservative obsession with picking Justices that don't "flake out" and vetting them thoroughly. Similarly, the fact that AMK ended up in the "Bork seat" made it easy for activists to look at every ideologically dubious (in some minds) AMK decision, dream about WWRBHD (what would Robert Bork have done) and gnash teeth while mentally substituting a hypothetical Bork vote in every 5-4 AMK decision that sided with the Court's more liberal wing.

    But Souter has provoked the night sweats on the right forever, not because he was "unreliable," (as some are accused of being) but because he was reliable -- reliably against the conservative legal philosophy broadly speaking. The fact that including him would so distort the analysis that he had to be removed kind of proves the point. As for the Souterless analysis I agree that Republicans conservatives aren't wildly more unreliable, but I also think it's a hard thing to judge because Supreme Court practitioners and Justices are really really smart. They know what Justices are immovable on certain issues and are more or less aggressive depending on where they think the majority is. Take the current court. Conservative litigants, seeing a broad 6-3 majority, are more likely to shoot for the moon and lose a Justice or 2 depending on the issue. More liberal litigants, on the other hand, are trying to pull an inside straight and may tailor a whole case towards one Justice (e.g., Bostick). And even this leaves out the effect of the not uncommon Rehnqusitian move of voting with a majority you probably disagree with on some level but writing the decision to limit the damage. I think the bottom line is that the number of confounding factors is too great on a small sample size for statistics to be much help, but regardless, you two are doing a great service by pointing out the nuance in these issues and challenging the assumption that many young lawyers get from partisan media on both sides that every issue is SO political that party affiliation of the nominating President is (or should be) determinative.

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      Aylene Wright

      I get the sense Roberts has followed Rehnquist as well. I think that Roberts siding with the majority in Bostock was mostly so he could assign Gorsuch to write the opinion and therefore limit the damage, even if he didn't write it himself.

      And it's interesting that much of AOs own recent analysis of the Court has basically ignored Gorsuch's decision in Bostock so the they can throw him into the "reliable right" bucket with Thomas and Alito. And I think it's way too early to say ACB definitely belongs in the center-right bucket with BK and the Chief.

      Certainly though the really cynical idea that the Justices are just stooges for the President or Party that appointed them is just that. Unfortunately that seems to be the primary lens most non-lawyer articles on the Court are written with.

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        Aylene Wright

        PS: Also occurs to me that Gorsuch is much friendlier to the criminal defendant bar than Thomas or Alito. Even recall him voting with Sotomayor on some cases. So even the "3-3-3 Court" framing that AO has used is of limited applicability.

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