NYT: Supreme Court 'declining in relevance'

[cynatnite]

As its caseload lightens dramatically, some critics say that the Supreme Court of the United States is losing its relevance, The New York Times reports on its Thursday front page.

"On the Supreme Court's color-coded master calendar, distributed months before the term began on the first Monday in October, Dec. 6 is marked in red to signify a day when the justices are scheduled to be on the bench, hearing arguments," writes Linda Greenhouse. "The courtroom, however, was empty, and for a simple reason: The court was out of cases. The question is, where have all the cases gone?"

During his confirmation hearings, now-Chief Justice John Roberts said he felt there would plenty of cases for the Court to consider, but "that has not happened," Greenhouse says. "The court has taken about 40 percent fewer cases so far this term than last," she writes, and it "now faces noticeable gaps in its calendar."

Greenhouse denotes various reasons for the decline--fewer appeals, fewer statutes to interpret, less risk-taking by the justices--remarking that it is the "result of forces that have been developing for decades."

http://www.rawstory.com/news/2006/New_York_Times_Supreme_Court_declining_1207.html

[MADem]

1. I'll go with "less risk-taking by the justices" for a thousand, Alex!!!!

And "less law passing by Congress, as well!"

One theory is that the court is so closely divided that neither the liberals nor the conservatives want to risk granting a case in which, at the end of the day, they might not prevail. To accept a case takes four votes, which can be a heartbreaking distance from the five votes it takes to resolve it. Scholars of the court call this risk-averse behavior "defensive denial."...One is the decreasing number of appeals filed on behalf of the federal government by the solicitor general’s office. Over the decades, the Supreme Court has granted cases filed by the solicitor general’s office at a high rate. In the mid-1980s, the office was filing more than 50 petitions per term. But as the lower federal courts have become more conservative and the government has lost fewer cases, the number has plummeted, opening a substantial hole in the court’s docket.

As recently as the court’s 2000 term, the solicitor general filed 24 petitions, of which 17 were granted. Last term, it filed 10, of which the court granted 4. This term, the solicitor general has filed 13 petitions; the court has granted 5, denied 3 and is still considering the rest.

Another explanation lies across the street from the Supreme Court, in Congress. Over the years, about half the court’s docket has been made up not of constitutional cases, but of cases requiring the justices to interpret federal statutes. Statutes from the 1970s, including major environmental laws, antidiscrimination laws and Erisa, the employee-benefits law, have been staples of the court’s docket for decades. But as Congress’s willingness to pass new laws has waned, the flow of statutory cases has begun to dry up.....



The Supremes need to cut the crap with that "decline to take the case" nonsense. It seems to me they're more willing to take cases when the Democrats are in charge--perhaps because a Dem Congress is more willing to get off their asses and pass a few laws--but that could be a false impression/bias on my part.

[Kellyiswise]

2. SCOTUS lost its credibility during the 2000 election decision.

They will never be highly regarded nationally or internationally again.

[in_cog_ni_to]

3. Couldn't agree more. I lost all respect for the court after that debacle.

:grr:

[politick]

5. *

It ebbs and flows. Though I'm not screaming victory from the hilltops, the latest election recults did act to spark some degree of renewed confidence in "the system." It's all kind of on a pendulum, and what's wrong tends to right itself. Yes, this court is seeing fewer cases, but I've also recently read about ho Scalia is emerging as something of a libertarian.

(I will post said article in full, as I am a NYT Select subsciber, and some of you may not be—feel free to skip if not interested):

The conservative ideological majority on the U.S. Supreme Court that determined the 2000 election in favor of President Bush should have grown stronger when Bush chose Justice Samuel Alito to replace the moderate Sandra Day O'Connor. Yet in carrying out its first priority, the war on terror, the White House has encountered unwelcome resistance from the court. Objections to Bush's sweeping view of executive power have come not only from liberals and centrists, like Justice Anthony Kennedy but, more remarkably, from Justice Antonin Scalia, who may end up playing a pivotal role in future war-on-terror cases.

Scalia has long been regarded as an administration favorite. Bush suggested during the 2000 campaign that Scalia was his idea of a model justice. In the court's Bush v. Gore decision, which brought that campaign to an end, Scalia ventured the opaque claim that candidate Bush would experience ''irreparable harm'' if the recount continued in Florida. Not long after, the justice's son was appointed by the president to a top position in the Labor Department. In January 2004, Scalia took a free ride on Vice President Cheney's plane to go duck hunting with him; later he refused to step aside in a major case involving Cheney.

Even beyond these affiliations, Justice Scalia's flamethrowing rhetoric and his hostility to whole chapters of 20th-century jurisprudence have made him a conservative icon and a favorite face on liberal dart boards. The justice has declared that the Constitution not only creates no right to abortion but does not even protect private adult sexual conduct, blasting the court's 2003 decision to strike down a Texas sodomy law as ''largely sign on to the so-called homosexual agenda.'' He has scaled back the exclusionary rule, which bars evidence obtained by unlawful police searches, and made it clear that he would like to do away with Miranda warnings.

Less noted, however, is the fact that Justice Scalia, especially in the last decade, has frequently taken an expansive view of the Bill of Rights, thus supporting defendants in criminal cases. Scalia is one of the intellectual godfathers of a strand of Supreme Court decisions, crystallized by Apprendi v. New Jersey, that revolutionized sentencing laws. Following a strict interpretation of the Fifth Amendment's guarantee of due process of law and the Sixth Amendment's right to trial by jury, Scalia has insisted that any fact used to extend punishment beyond normal statutory limits must be specified and proved to a jury beyond a reasonable doubt. Despite his fevered support for capital punishment, Scalia also joined a court majority in holding that the Constitution requires a death sentence to be decided by a jury, rather than by a judge, effectively setting aside every capital sentence still on direct appeal in five states.

Nor are Scalia's pro-rights decisions limited to one arcane area. In Kyllo v. U.S. (2001), Justice Scalia, writing for the court, deemed police use of heat-seeking technology to detect whether marijuana was being grown inside a house a violation of the Fourth Amendment's prohibition on unreasonable searches. In a 2004 opinion, Scalia spoke for a court majority in finding unconstitutional the widespread practice of using recordings or prepared statements to the police as a substitute for the testimony of unavailable witnesses. And last term, supported by the court's four more liberal justices, Scalia held that a defendant wrongly deprived of the lawyer of his choice gets a new trial, no matter how overwhelming the evidence of his guilt.

Justice Scalia is led to these seemingly divergent positions by his unyielding adherence to a school of constitutional interpretation called originalism. To Scalia, the Bill of Rights means exactly what it did in 1791, no more, no less. The needs of an evolving society, he says, should be addressed by legislation rather than the courts.

In all of this, Scalia is first and foremost a legal formalist -- meaning that to him, the rules are the rules. He did not sign on to the Apprendi cases out of any special sympathy for criminal defendants -- indeed, he once wrote an opinion refusing to uphold an acquittal on the grounds that the defendant's motion for acquittal was filed one day too late. Rather, he was motivated by the assumption that, as he put it in the capital-punishment case, ''the right of trial by jury is in perilous decline.'' In other words, over the years the right had come to be interpreted more narrowly than in 1791.

In adjudicating the war on terror, Scalia has come down strongly on behalf of the administration and its prisoners in a number of cases. The extensive powers claimed by the Bush administration would seem to pose a problem for originalists, because the Bill of Rights was indubitably added to the Constitution to keep the new American executive from repeating the monarchal abuses of King George. Yet in a speech in suburban Cleveland in March 2003, just before the invasion of Iraq (where one of his sons would serve), Justice Scalia told his audience that ''most of the rights that you enjoy go way beyond what the Constitution requires'' and predicted that in war time ''the protections will be ratcheted right down to the constitutional minimum.'' In one of the first war-on-terror cases to reach the court, Rasul v. Bush, a majority agreed that the foreign detainees at Guantánamo had a right to file habeas corpus petitions. Scalia strongly dissented, as one might have expected given the fact that the Constitution's protections are generally intended for only American citizens.

It thus verged on the breathtaking when Justice Scalia wrote in Hamdi v. Rumsfeld: ''Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis. ... Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.''

Hamdi, an American citizen, was supposedly captured among Taliban forces in Afghanistan. Four justices thought that the Congressional resolution passed immediately after 9/11, authorizing the use of force against Al Qaeda, permitted the president to detain Hamdi as an enemy combatant. A majority ruled, however, that Hamdi could not be held indefinitely simply on the president's say-so and was entitled to a meaningful hearing. Justice Scalia would not even concede the first point. Instead, he declared Congress has not given the president the power to hold any American, even one who has taken up arms against his country, as an enemy combatant and instead must press criminal charges or let him go.

Now the looming question is where Scalia will settle as future war-on-terror cases come before the court, and whether his unique jurisprudence will accord him a leading role. The court's centrists, most notably Justices Kennedy and Breyer, are inclined to apply nuanced balancing tests. Weighing, for example, the need to hold battlefield captives like Hamdi against the reality that such a detention could last most of the detainee's lifetime, both justices voted to create a right to a hearing for citizen-combatants. Yet their war-on-terror decisions have been so factbound that they offer little future guidance on the meaning of the rights involved. For instance, what happens when a citizen who is a supposed enemy combatant is captured in this country rather than on the battlefield? The other conservatives on the court -- Justice Thomas and, in their limited times, Justices Alito and Roberts -- have shown an inclination to defer blankly to executive power. Scalia's originalism, too, tends to view executive power expansively, but only when it is applied to the many areas beyond the narrow preserves created by the Bill of Rights. As the Apprendi cases demonstrate, Scalia is more like the court's liberal members in seeing the Bill of Rights as a constitutional trump when it collides with government power.

Apparently unsure about what the future holds, the administration recently has been trying to sidestep the Supreme Court altogether. It persuaded Congress to remove the habeas corpus rights the court had previously granted foreign detainees at Guantánamo. The White House also wants to rewrite the wiretapping laws to bolster the president's assertions that he had the constitutional power to wiretap certain calls without a warrant. The president has asked the lame-duck Republican Congress to push through the change, but the newly emboldened Senate Democrats say they will block it. It appears most likely that when the wiretapping program inevitably reaches the court, the justices will have to weigh the president's claim of inherent authority against the statute in place when the program began. The statute explicitly says its warrant procedure is ''the exclusive means'' to wiretap calls to or from the U.S. for national security reasons.

Scalia has seldom been a consensus builder on the court, preferring to stick with his own views rather than troll for votes. But his occasional alliance with the court's more liberal justices could be struck again in future terror cases. The result would be an unequivocal declaration that executive power must yield to constitutional liberties, even when the nation is on the prolonged war footing we seem to have adopted.

[BattyDem]

7. I was just about to post the same thing.

I used to look to the Supreme Court with hope and respect because I naively thought that they sincerely tried to do their best to interpret the Constitution at all times. But ... December 2000 proved that at least 5 people on that court were nothing more than partisan hacks! I no longer expect them to do what's right - I expect them to do whatever the partisans want them to do. The SC has become a bad joke and I no longer trust their rulings or motives. :-(

[Mendocino]

4. They are desperate for work...

....taking the Anne Nicole Smith probate case.

[jmowreader]

6. They don't want to look like they're legislating from the bench

I think we've all heard this hoary old chestnut from the far right: "We want judges that will interpret the law, not legislate from the bench."

Legislating from the bench means "handing down decisions we don't like."

This concept basically means that the last groundbreaking decision the Supreme Court will ever make is Bush v. Gore--and it says, right in the decision, that it's not precedent-setting, which in itself is a precedent. They're afraid to do anything sweeping, and I don't know why. The last time (okay, the ONLY time) a USSC justice was impeached was Samuel Chase in 1804, and he survived the Senate vote.

[Morgana LaFey]

8. Courts are SUPPOSED to make law -- it's why they're there.

IT IS THE JOB OF THE COURTS TO LEGISLATE FROM THE BENCH. Maybe not your first tier courts, but ALL those to which cases are appealed.

Here's how it works, and it's provided for at the federal level in the Constitution.

Laws are made, but dear God they're often a mess. People who aren't even lawyers make them up in the various state houses and in Congress. Even those who are lawyers sometimes don't think past the ends of their noses -- or maybe the do -- and write up ridiculous stuff that means NOTHING like what they thought it meant.

So, because Party A thinks the law means this and Party B thinks the same law means that, they go to court and some judge decides what HE thinks the law means.

Then the losing party appeals and it goes to the next highest court. THAT's the court at which the decision by the judge MAKES LAW in the form of precedent. "Legal precedent." You've no doubt heard the term. Judges in lower courts who are subject to being overturned or validated at that court's level make it their business (if they're any good) to know what the Appeals Court has decided about the laws they are usually concerned with, and try to follow the LEGAL PRECEDENT set forth by the Appeals Court.

If there are any lawyers around they can kindly correct my description as necessary, but I'm real sure about the role of the Appeals Courts.

[Morgana LaFey]

9. Relevence? Or trust? I think TRUST is missing. nt