tag:theconversation.com,2011:/ca/topics/justice-antonin-scalia-25142/articlesJustice Antonin Scalia – The Conversation2022-07-04T15:05:53Ztag:theconversation.com,2011:article/1860842022-07-04T15:05:53Z2022-07-04T15:05:53ZCan Americans be shielded from the U.S. Supreme Court?<figure><img src="https://images.theconversation.com/files/471894/original/file-20220630-13-7tc4el.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C4543%2C2908&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The U.S. Supreme Court is seen behind security fencing on June 28, 2022. </span> <span class="attribution"><span class="source">(AP Photo/Mariam Zuhaib)</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/can-americans-be-shielded-from-the-u-s--supreme-court" width="100%" height="400"></iframe>
<p>When United States <a href="https://www.nytimes.com/2016/02/14/us/antonin-scalia-death.html">Supreme Court Justice Antonin Scalia died</a> with 10 months left in President Barack Obama’s second term, Mitch McConnell, the Senate majority leader at the time, took the extreme step of <a href="https://www.npr.org/2018/06/29/624467256/what-happened-with-merrick-garland-in-2016-and-why-it-matters-now">refusing to hold hearings</a> for his nominated replacement, Merrick Garland. </p>
<p>McConnell hoped that a Republican might soon win the presidency and choose a different nominee. He got his wish. </p>
<p><a href="https://www.cnn.com/2016/12/21/politics/donald-trump-hillary-clinton-popular-vote-final-count/index.html">Despite getting three million fewer votes than Hillary Clinton</a>, Donald Trump won the presidency that November. Now, 18 months since his presidency ended, Trump’s impact on American life has probably never been more substantial as the Supreme Court he reshaped has pushed America in a sharply conservative direction. </p>
<h2>Crumbling democratic norms</h2>
<p>In fact, <a href="https://www.supremecourt.gov/about/biographies.aspx">five out of the nine justices</a> on the court this term were appointed by men who became president while losing the popular vote. Trump managed <a href="https://www.pewresearch.org/fact-tank/2021/01/13/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/">to appoint a third of the court during his four years in office, compared to Obama’s two appointments</a> in eight years. </p>
<p>The combination of crumbling democratic norms in the appointments process and an ideological court out of step with mainstream America raises questions of how the Supreme Court could be reformed.</p>
<p>These lifetime appointees have now jolted America <a href="https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf">on guns</a>, <a href="https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf">Christian prayer in public schools</a>, <a href="https://www.supremecourt.gov/orders/courtorders/062822zr1_9ol1.pdf">racial gerrymandering</a> of electoral districts and abortion rights. The conservative pivot shows no signs of stopping. </p>
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Read more:
<a href="https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-including-striking-down-legal-segregation-and-reversing-roe-185941">The Supreme Court has overturned precedent dozens of times, including striking down legal segregation and reversing Roe</a>
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<p>In <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">his concurrence</a> in the case that overthrew <em>Roe v. Wade</em>, Justice Clarence Thomas also urged a re-examination of same-sex marriage, sodomy laws and contraceptive use. The court will rule on <a href="https://www.newyorker.com/news/daily-comment/the-supreme-court-appears-ready-finally-to-defeat-affirmative-action">affirmative action</a> next term. </p>
<p>With confidence in the U.S. Supreme Court at an <a href="https://news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx">all-time low</a>, many want something done to <a href="https://www.politico.com/f/?id=00000180-8d22-d337-a9cc-bfaa481a0000&nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f115-dd93-ad7f-f91513e50001&nlid=630318">check the court’s influence</a>. </p>
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<img alt="A woman in a parade holds a sign that reads Clarence Thomas and Ginni Thomas are coming after gay rights next" src="https://images.theconversation.com/files/471895/original/file-20220630-15-mjkpkg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/471895/original/file-20220630-15-mjkpkg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/471895/original/file-20220630-15-mjkpkg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/471895/original/file-20220630-15-mjkpkg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/471895/original/file-20220630-15-mjkpkg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/471895/original/file-20220630-15-mjkpkg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/471895/original/file-20220630-15-mjkpkg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A reveller holds a sign referring to Supreme Court Justice Clarence Thomas and his wife, Ginni, as she marches down Fifth Avenue during the annual NYC Pride March in June 2022.</span>
<span class="attribution"><span class="source">(AP Photo/Mary Altaffer)</span></span>
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<h2>Suggestions for reform</h2>
<p>The U.S. Constitution gives Congress power over the size and structure of the judicial branch. Justices serve for life, barring impeachment, making removal difficult. Altering the size of the court, however, can be done by statute.</p>
<p>The constitution does not say there must be nine justices on the Supreme Court. In fact, there has been considerable <a href="https://www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21-1.pdf">variation in the number of justices</a> over the course of American history — between five and 10 justices comprised the court before Congress settled on nine in 1869. </p>
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<img alt="A grey-haired man wearing glasses in a suit with a red tie smiles as he walks past reporters." src="https://images.theconversation.com/files/471899/original/file-20220630-23-kuhtue.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/471899/original/file-20220630-23-kuhtue.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=417&fit=crop&dpr=1 600w, https://images.theconversation.com/files/471899/original/file-20220630-23-kuhtue.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=417&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/471899/original/file-20220630-23-kuhtue.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=417&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/471899/original/file-20220630-23-kuhtue.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=524&fit=crop&dpr=1 754w, https://images.theconversation.com/files/471899/original/file-20220630-23-kuhtue.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=524&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/471899/original/file-20220630-23-kuhtue.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=524&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">In this 2016 photo, Merrick Garland, Obama’s choice to replace the late Justice Antonin Scalia on the Supreme Court and now attorney general under Joe Biden, arrives for a meeting in Washington.</span>
<span class="attribution"><span class="source">(AP Photo/Pablo Martinez Monsivais)</span></span>
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<p>Many of these changes were undertaken for political reasons, and talk of changing the size of the court continued. Republicans’ refusal to consider Garland’s nomination reinvigorated interest in expanding it. In 2021, President Joe Biden <a href="https://www.whitehouse.gov/pcscotus/">created a commission</a> to evaluate a variety of reforms.</p>
<p><a href="https://www.rutgers.edu/news/what-court-packing">Court-packing</a> — expanding the size of the Supreme Court for purposes that could be viewed as partisan — is not the only reform option available. Introducing <a href="https://www.whitehouse.gov/wp-content/uploads/2021/06/Dixon-Letter-SC-commission-June-25-final.pdf">term limits</a> would bring the Supreme Court in line with most of the world’s high courts. </p>
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<p>Other structural reform proposals include <a href="https://balkin.blogspot.com/2020/10/dont-pack-court-regularize-appointments.html">having subsets</a> of justices hear each case or establishing a system <a href="https://www.yalelawjournal.org/feature/how-to-save-the-supreme-court">where judges rotate between the Supreme Court and lower federal courts</a>. Others aim for ideological balance by creating a set number of seats for Democratic and Republican nominees. </p>
<p>Some ideas are easier to implement than others. While expanding the size of the U.S. Supreme Court can be done by passing a law, other proposals require constitutional change. The difficult process of <a href="https://www.pewresearch.org/fact-tank/2018/04/12/a-look-at-proposed-constitutional-amendments-and-how-seldom-they-go-anywhere/">amending the U.S. Constitution</a> makes statutory reforms that much more attractive. </p>
<p><a href="https://www.brookings.edu/policy2020/votervital/what-is-the-senate-filibuster-and-what-would-it-take-to-eliminate-it/">Changes would require Democratic House and Senate majorities in favour of a new law as well as a majority of senators willing to set aside the filibuster to pass it</a>. The Democrats are short several votes on eliminating the filibuster, but the court’s recent decisions might help them make gains in this fall’s mid-term elections. </p>
<h2>Ideologically motivated</h2>
<p>Why does the court’s size matter? When justices are neutral umpires <a href="https://www.uscourts.gov/educational-resources/educational-activities/chief-justice-roberts-statement-nomination-process#:%7E:text=I%20will%20be%20open%20to,not%20to%20pitch%20or%20bat.">calling balls and strikes</a>, their number is not so important. </p>
<p>But when decisions are seen as ideologically motivated, <a href="https://doi.org/10.1111/j.1540-5907.2012.00616.x">judicial legitimacy</a> — the key tool the court has to enforce its decisions — is threatened. Restoring ideological balance to the Supreme Court is a means to preserve its institutional legitimacy.</p>
<p>Can the court change direction? Biden expressed concern that court-packing could backfire by making it even more politicized. However, reforms that bring Supreme Court decisions <a href="https://doi.org/10.1515/for-2022-2043">in line with public opinion</a> should increase legitimacy of what used to be the <a href="https://news.gallup.com/poll/355124/americans-trust-government-remains-low.aspx">most trusted branch</a> of American government. </p>
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<img alt="A man with grey hair and glasses speaks." src="https://images.theconversation.com/files/471901/original/file-20220630-22-5d8a8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/471901/original/file-20220630-22-5d8a8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/471901/original/file-20220630-22-5d8a8y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/471901/original/file-20220630-22-5d8a8y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/471901/original/file-20220630-22-5d8a8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/471901/original/file-20220630-22-5d8a8y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/471901/original/file-20220630-22-5d8a8y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">McConnell speaks with reporters following a closed-door caucus lunch at the Capitol in Washington.</span>
<span class="attribution"><span class="source">(AP Photo/J. Scott Applewhite)</span></span>
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<p>Even if the court is expanded, the nomination process for justices has become open warfare between the Democrats and Republicans. With mid-term elections ahead, McConnell has indicated that, if Republicans win a majority in the Senate, they would treat a nomination from Biden in 2023 or 2024 as they did Obama’s in 2016, <a href="https://www.ny1.com/nyc/all-boroughs/news/2021/06/14/biden-mcconnell-supreme-court">keeping a seat vacant</a> in the hopes of a new Republican president.</p>
<h2>An ominous future</h2>
<p>Democracy rests in large part on the perception that political institutions are doing their jobs fairly and for the common welfare. </p>
<p>There have been periods of American history where one branch of government has sunk beneath the others in their perceived legitimacy. But with ratings of Congress and the president so low, having the legitimacy of the Supreme Court sink as well brings <a href="https://news.gallup.com/poll/5392/trust-government.aspx">faith in the overall system</a> to dangerously low levels.</p>
<p>Among other worries, if a court that most view as biased is called upon to decide the 2024 presidential election, the remaining pieces of American democracy could crumble fast.</p><img src="https://counter.theconversation.com/content/186084/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The combination of crumbling democratic norms in the U.S. Supreme Court appointments process and an ideological court out of step with mainstream America raises questions of how it could be reformed.Matthew Lebo, Professor and Chair, Department of Political Science, Western UniversityEllen Key, Professor, Department of Government and Justice Studies, Appalachian State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1692352021-11-01T18:34:54Z2021-11-01T18:34:54ZGun rights at the Supreme Court: Justices will consider if the fundamental right to keep a gun at home applies to carrying weapons in public<figure><img src="https://images.theconversation.com/files/428616/original/file-20211026-25-f6ludh.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C4601%2C3062&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Dozens of people attended an open carry rally led by Joey Gibson, leader of the Patriot Prayer group, on May 20, 2018, in Seattle. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/dozens-attend-an-open-carry-rally-led-by-joey-gibson-leader-news-photo/960672862?adppopup=true">Karen Ducey/Getty Images</a></span></figcaption></figure><p>The <a href="https://www.thetrace.org/2021/05/supreme-court-gun-rights-concealed-carry-new-york-corlett/">Supreme Court is set to hear arguments Nov. 3</a>, 2021, on a clear question: Does the constitutional right to possess a gun extend outside the home? The answer may alter gun regulations in many states. </p>
<p>The crux of the <a href="https://theconversation.com/first-major-second-amendment-case-before-the-supreme-court-in-over-a-decade-could-topple-gun-restrictions-166703">issue before the court</a> is captured by a debate that Thomas Jefferson had with himself at the time of the founding.</p>
<p>When Jefferson was drafting a proposed constitution for his home state of Virginia in June 1776, he <a href="https://www.monticello.org/site/research-and-collections/no-freeman-shall-be-debarred-use-arms#footnote3_h70lbu1">suggested a clause</a> that read “No freeman shall ever be debarred the use of arms.” </p>
<p>In the second draft, he added in brackets, “[within his own lands or tenements].”</p>
<p>Jefferson’s debate with himself captures the question posed to the court: Is the purpose of the right to “keep and bear arms” the protection of a citizen’s “own lands,” or is it self-protection in general? Does the Second Amendment to the U.S. Constitution recognize a right to keep and bear arms in the home, or a right to “keep” firearms in the home and also “bear” them outside of the home for protection in society? </p>
<p>The plaintiffs in the upcoming case <a href="https://www.scotusblog.com/case-files/cases/new-york-state-rifle-pistol-association-inc-v-bruen/">New York Rifle & Pistol Association v. Bruen</a> want the court to strike down the state’s restrictions and allow citizens who meet basic requirements, such as having no criminal convictions, to carry concealed weapons.</p>
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<img alt="A man with a tattoo that reads 'We the People' carrying a gun in a leather holster" src="https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&rect=22%2C9%2C3035%2C1894&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=378&fit=crop&dpr=1 600w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=378&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=378&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=475&fit=crop&dpr=1 754w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=475&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=475&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Will an upcoming Supreme Court ruling loosen gun laws across the country?</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Texas-Handguns/a65f863ca87e4b59b68b98d8db568bc1/photo?Query=guns%20open%20carry&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=280&currentItemNo=5">AP Photo/Eric Gay</a></span>
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<h2>Gun in the house</h2>
<p>There are surprisingly few <a href="https://theconversation.com/first-major-second-amendment-case-before-the-supreme-court-in-over-a-decade-could-topple-gun-restrictions-166703">Supreme Court rulings</a> on the meaning of the Second Amendment. </p>
<p>The question of whether the amendment recognizes a fundamental right – on par with free speech or free exercise of religion – was not decided until 2008 in the landmark ruling in <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf">District of Columbia v. Heller</a>. For the first time, the court recognized a clear individual right to bear arms for the purpose of self-defense. This <a href="http://content.time.com/time/specials/packages/article/0,28804,2036448_2036452_2036455,00.html">deeply disputed 5-4 ruling</a> was expanded <a href="https://www.supremecourt.gov/opinions/09pdf/08-1521.pdf">two years later to cover state laws</a>.</p>
<p>The Heller ruling stated that the Second Amendment’s right is like the others in the <a href="https://www.archives.gov/founding-docs/bill-of-rights-transcript">Bill of Rights</a>, which cannot be violated without the most compelling reasons. The amendment, the ruling says, “surely <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf#page=66">elevates above all other interests</a> the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The Washington, D.C., law intended to reduce crime cannot ban firearms in “<a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf#page=59">the home</a>, where the need for defense of self, family, and property is most acute.”</p>
<p>That ruling – written by Justice Antonin Scalia, who died in 2016 and was <a href="https://www.npr.org/2017/04/07/522902281/senate-confirms-gorsuch-to-supreme-court">replaced by Justice Neil Gorsuch</a> – also recognized that “like most rights, the right secured by the Second Amendment is <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf#page=57">not unlimited</a>.” Scalia cited regulations like “longstanding prohibitions on the possession of firearms by felons and the mentally ill” or “prohibitions on carrying concealed weapons” as “presumptively lawful.”</p>
<p>The principal dissent was written by Justice Stephen Breyer, the only dissenter in Heller still serving on the court. He emphasized the balance between core rights and the needs for public safety. </p>
<p>“If a resident has a <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf#page=146">handgun in the home</a> that he can use for self-defense,” wrote Breyer, “then he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence.”</p>
<h2>Concealed carry laws</h2>
<p>State governments follow very different procedures for determining who will be allowed to carry a concealed firearm outside of the home. </p>
<p>“<a href="https://worldpopulationreview.com/state-rankings/open-carry-states">Open carry</a>,” or just having a handgun in plain sight on a belt holster or carrying a long gun (rifle or shotgun), is actually legal in many places. The general idea is that carrying openly would be done only by an honest actor, so less regulation is needed. “Concealed carry,” having a hidden weapon in a pocket or under a jacket, is far more restricted. </p>
<p>At one end of the continuum are near-bans on what are called “concealed carry licenses,” while at the other end are states in which no license is needed. These laws are referred to as “<a href="https://www.cnn.com/2021/09/01/us/texas-open-carry-laws/index.html">constitutional carry</a>,” meaning the U.S. Constitution itself is a citizen’s <a href="https://concealedguns.procon.org/state-by-state-concealed-carry-permit-laws/">license to carry</a> a firearm. </p>
<p>In between these two positions are rules known as “shall issue,” whereby the government issues a license if the applicant meets the requirements such as having no felony convictions, or “may issue,” which gives the government discretion to deny a license based on perceptions of fitness.</p>
<p>New York state has “may issue” laws with <a href="https://codes.findlaw.com/ny/penal-law/pen-sect-400-00.html">stringent requirements</a>, which in practice allow almost no licenses to be issued. Applicants must demonstrate a “<a href="https://sheriff.ongov.net/wp-content/uploads/2016/06/propercauseforconcealedcarry.pdf">proper cause</a>” – such as being in imminent danger from a known source – which effectively eliminates ordinary applicants. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A head-and-shoulders photo of the late Supreme Court Justice Antonin Scalia." src="https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The 2008 Heller ruling, written by Justice Antonin Scalia, pictured here, stated that the Second Amendment is a right like the others in the Bill of Rights.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supreme-court-associate-justice-antonin-scalia-testifies-news-photo/100024252?adppopup=true">Chip Somodevilla/Getty Images</a></span>
</figcaption>
</figure>
<h2>Regulation or eradication</h2>
<p>The strongest argument in the <a href="https://www.supremecourt.gov/DocketPDF/20/20-843/164031/20201217110211298_2020-12-17%20NRA-Corlett%20Cert%20Petition%20FINAL.pdf">gun owners’ brief</a> to the Supreme Court relates to New York’s insistence that citizens show an exceptional or extraordinary need to exercise a right that the court has recognized as fundamental.</p>
<p>No other fundamental right, such as freedom of speech or religion, is limited to people who can demonstrate special circumstances. Instead, fundamental rights are understood to be held by ordinary people in ordinary circumstances.</p>
<p>The strongest argument in the <a href="https://www.supremecourt.gov/DocketPDF/20/20-843/169604/20210222170827872_20-843_Brief%20in%20Opposition.pdf">opposing brief</a> from the New York State Police is federalism – the longstanding conservative argument that state lawmakers hold wide latitude to determine their own regulations to serve as “<a href="https://www.supremecourt.gov/DocketPDF/20/20-843/169604/20210222170827872_20-843_Brief%20in%20Opposition.pdf#page=33">laboratories of experimentation</a>,” as Justice Louis Brandeis <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep285/usrep285262/usrep285262.pdf#page=50">phrased it</a> in 1932. The federalist principle suggests that the court should defer to the judgment of state legislatures representing the needs of local citizens.</p>
<p>As a <a href="https://doi.org/10.1007/978-3-030-53851-4">close observer of the Supreme Court</a>, I can imagine an outcome to the case in which the justices rule that, under the Second Amendment, a state can limit but not eliminate the core purposes of the protected right. </p>
<p>The Heller decision identifies at least one purpose as self-defense. The question is whether a specific concealed carry law creates a burden so strong that it becomes equivalent to eradication of the right to self-protection, or whether it imposes a legitimate public safety regulation that still maintains the core right for citizens who assert it.</p>
<h2>Individual rights vs. fellow citizens</h2>
<p>The most permissive laws that allow unrestricted concealed carry are almost certainly not mandated by the Constitution.</p>
<p>“Shall issue” laws, which allow states to screen applicants for flaws but compel local governments to provide a concealed carry license to qualified citizens, are likely to be seen even by the conservative justices as legitimate regulations that do not create unconstitutional burdens. </p>
<p>However, the current court might be likely to see a “may issue” law like New York’s, which allows the government to deny a license to nearly every applicant, as creating a burden that blocks the core of the right to self-protection where ordinary citizens are exposed to greater threats – outside the home.</p>
<p>The dissenters will likely focus on Scalia’s invocation of the home as the height of the defensive right, allowing for restrictions outside one’s “own lands,” where individual rights are balanced against the interests of fellow citizens.</p>
<p>[<em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>.]</p><img src="https://counter.theconversation.com/content/169235/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court ruled in 2008 that you have a constitutional right to have a gun in your home. Now, the justices will consider how far outside of the home that right extends.Morgan Marietta, Associate Professor of Political Science, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1465442020-09-20T01:32:35Z2020-09-20T01:32:35ZCan Trump and McConnell get through the 4 steps to seat a Supreme Court justice in just 6 weeks?<figure><img src="https://images.theconversation.com/files/358895/original/file-20200919-24-1olljv3.jpg?ixlib=rb-1.1.0&rect=44%2C26%2C5946%2C3952&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A political battle is shaping up over the confirmation of the next Supreme Court Justice.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-place-flowers-outside-of-the-us-supreme-court-in-news-photo/1228593524?adppopup=true">Jose Luis Magana / AFP/Getty Images</a></span></figcaption></figure><p>United States Supreme Court Justice Ruth Bader Ginsburg died on Sept. 18, thrusting the acrimonious struggle for control of the Supreme Court into public view. </p>
<p>President Trump and Senate Majority Leader Mitch McConnell have already <a href="https://www.foxnews.com/politics/trump-urges-republicans-fill-ginsburg-vacancy-without-delay">vowed to nominate and confirm</a> a replacement for the 87-year-old justice and women’s rights icon. </p>
<p>This <a href="https://www.cnn.com/2020/09/18/politics/merrick-garland-senate-republicans-timeline/index.html">contradicts the justification the Republican-controlled Senate used</a> when they refused to consider the nomination of Merrick Garland, President Barack Obama’s pick for the Court after the death of Antonin Scalia in February 2016. </p>
<p>Garland, a <a href="https://theconversation.com/polar-bears-princess-diana-gun-rights-the-opinions-of-obamas-supreme-court-nominee-merrick-garland-56398">moderate judge</a> on the D.C. Circuit Court of Appeals, was nominated in March 2016, but McConnell balked on the basis that it was an election year. </p>
<p>“The American people are about to weigh in on who is going to be the president,” <a href="https://news.yahoo.com/then-now-mcconnell-others-said-135903405.html">said McConnell in March 2016</a>. “And that’s the person, whoever that may be, who ought to be making this appointment.”</p>
<figure class="align-center ">
<img alt="Senate Majority Leader Mitch McConnell and Sen. Lindsey Graham walking together" src="https://images.theconversation.com/files/358894/original/file-20200919-14-ea9ssc.jpg?ixlib=rb-1.1.0&rect=110%2C84%2C5428%2C3633&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/358894/original/file-20200919-14-ea9ssc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/358894/original/file-20200919-14-ea9ssc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/358894/original/file-20200919-14-ea9ssc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/358894/original/file-20200919-14-ea9ssc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/358894/original/file-20200919-14-ea9ssc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/358894/original/file-20200919-14-ea9ssc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Senate Majority Leader Mitch McConnell and Sen. Lindsey Graham both have consequential roles in the confirmation of a new Supreme Court justice.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/senate-majority-leader-mitch-mcconnell-and-sen-lindsey-news-photo/1213995507?adppopup=true">Drew Angerer/Getty Images</a></span>
</figcaption>
</figure>
<p>The 2020 presidential election was just 46 days away on the day of Bader Ginsburg’s death, but McConnell has apparently abandoned such considerations this time around. Trump tweeted on Sept. 19 that he would nominate a replacement <a href="https://www.nytimes.com/2020/09/19/us/politics/ginsburg-trump-vote-senate.html?action=click&module=Spotlight&pgtype=Homepage">“without delay.”</a> </p>
<p>Since the 1990s, the Supreme Court has increasingly split 5-4 <a href="https://www.nytimes.com/2010/07/25/us/25roberts.html?pagewanted=all">along ideological lines</a> on many important cases, including decisions on voting rights, affirmative action, gay marriage, the Affordable Care Act, gerrymandering and gun rights. </p>
<p>Being able to replace a reliable liberal voice on the Court with a conservative justice would entrench a 6-3 tilt towards the right for years. There is bound to be vehement opposition from the Democrats. </p>
<p>However the politics play out, there is a process for Supreme Court nominations and confirmations. Here are the four steps:</p>
<h2>Step 1: The presidential pick</h2>
<p>The first thing to know is that the Constitution of the United States gives the power of nomination to the president.</p>
<p><a href="https://constitutioncenter.org/interactive-constitution/article/article-ii">Article II, section 2</a> provides that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.” </p>
<p>By law, so long as he is in the White House, President Trump can nominate whomever he wants to replace Justice Ginsburg. Appointment is really a three-step process: nomination (by the president), confirmation (by the Senate), and appointment (by the president again).</p>
<p>Things can get tricky somewhere between nomination and confirmation. But changes made in the Senate – in particular, the rule change in 2017 that allows a Supreme Court Justice to be <a href="https://www.nytimes.com/2020/09/19/us/politics/mitch-mcconnell-trump-supreme-court.html?action=click&module=Spotlight&pgtype=Homepage">confirmed with 51 votes</a>, instead of 60 – are likely to smooth the way considerably.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/358896/original/file-20200919-20-1n8v0t8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Ruth Bader Ginsburg" src="https://images.theconversation.com/files/358896/original/file-20200919-20-1n8v0t8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/358896/original/file-20200919-20-1n8v0t8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/358896/original/file-20200919-20-1n8v0t8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/358896/original/file-20200919-20-1n8v0t8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/358896/original/file-20200919-20-1n8v0t8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/358896/original/file-20200919-20-1n8v0t8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/358896/original/file-20200919-20-1n8v0t8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Will the Republican-dominated Senate be able to confirm a replacement for Ruth Bader Ginsburg?</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supreme-court-justice-ruth-bader-ginsburg-celebrating-her-news-photo/1059477384?adppopup=true">Nikki Kahn/The Washington Post via Getty Images</a></span>
</figcaption>
</figure>
<h2>Step 2: The Senate Judiciary Committee</h2>
<p>Once the president has made a choice, the nomination is <a href="http://www.judiciary.senate.gov/nominations/supreme-court">referred to the United States Senate</a>. </p>
<p>Since the early 19th century, this has meant that the nomination will first be considered by a smaller group within the Senate, the Senate Judiciary Committee. The only exception was in 2016, when the Judiciary Committee refused to consider President Obama’s nomination of Judge Garland.</p>
<p>The Judiciary Committee currently has <a href="https://www.judiciary.senate.gov/about/members">22 members</a> – 12 Republicans and 10 Democrats – and has a three-step process of its own. </p>
<p>First, it conducts an investigation into the nominee’s background. This process can take 30 to 45 days, but it’s easy to imagine it going a lot faster.</p>
<p>Second, the committee holds a public hearing, in which the nominee is questioned and may give testimony about everything from her judicial philosophy to her stand on abortion. This may give voters a chance to see the Democratic vice presidential nominee, Kamala Harris, who also serves on the Judiciary Committee, display her prosecutorial skills during questioning of the nominee.</p>
<p>Finally, the committee will report its recommendation to the full Senate as either favorable, negative, or no recommendation.</p>
<p>The 10 Democratic members of the committee have already sent a letter to the chairman, Republican Sen. Lindsey Graham, <a href="https://www.nytimes.com/live/2020/09/19/us/live-rbg-death-supreme-court?action=click&module=Spotlight&pgtype=Homepage">calling on him</a> to “state unequivocally and publicly that you will not consider any nominee to fill Justice Ginsburg’s seat until after the next President is inaugurated.” </p>
<p>But that seems highly unlikely, given Graham’s new statements <a href="https://thehill.com/homenews/senate/517223-graham-signals-support-for-confirming-a-nominee-this-year">backtracking from</a> his 2018 assertions that he would not want a confirmation vote on a Supreme Court appointment in a presidential election year. </p>
<p>“I want you to use my words against me,” said Graham at the time, “[if] a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.” </p>
<p>Once the public hearings have concluded, if the Democrats want to buy time, they can <a href="https://www.newyorker.com/news/daily-comment/can-trump-and-mcconnell-push-through-a-successor-to-ruth-bader-ginsburg?reload">delay the committee vote for a week</a>. But after that, it’s on to the main floor of the Senate.</p>
<p>So let’s move on to the next stage, shall we?</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/cuO97cMCozk?wmode=transparent&start=854" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Senate Judiciary Committee Chairman Joe Biden and others question Ruth Bader Ginsburg during her 1993 Supreme Court confirmation hearings.</span></figcaption>
</figure>
<h2>Step 3: The full Senate</h2>
<p>There are 100 senators in the United States Senate – two for each state. Currently, the Senate is <a href="https://en.wikipedia.org/wiki/List_of_current_United_States_Senators">majority Republican</a>, with 53 Republicans, 45 Democrats and two Independents, who both caucus with the Democrats. </p>
<p>While the Senate has historically followed rules so arcane and incomprehensible that otherwise reasonable writers freely refer to them as “<a href="http://voices.washingtonpost.com/ezra-klein/2010/05/one_insane_senate_procedure_us.html">insane</a>,” they can now be changed by <a href="https://www.businessinsider.com/what-happens-if-supreme-court-justice-dies-retires-election-rbg-2020-7">a simple majority vote</a>, which simplifies matters for the majority party considerably. </p>
<p>If the motion that the nomination be considered is made during a special “executive” session of the Senate, then the motion itself is debatable and can be blocked by <a href="https://en.wikipedia.org/wiki/Filibuster_in_the_United_States_Senate">filibuster</a> – that movie-ready delay tactic in which which a senator recites Shakespeare, <a href="http://nypost.com/2013/09/25/cruz-vows-to-speak-till-he-cant-against-obamacare/">Dr. Seuss</a> or recipes for fried oysters until everyone gives up and goes home. </p>
<p>But closing debate on the motion so that the Senate could move on to a vote no longer requires a supermajority of 60 votes, just a bare 51-Senator majority. So filibustering is likely to be about as effective as a paper hammer.</p>
<p>After that, the Democrats can insist on a minimum of 30 hours of debate, and then, they will be out of options to delay or stop a confirmation vote.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/358897/original/file-20200919-24-r73d1m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Supreme Court nominee Robert Bork being introduced at his confirmation hearings by former President Gerald Ford." src="https://images.theconversation.com/files/358897/original/file-20200919-24-r73d1m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/358897/original/file-20200919-24-r73d1m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=441&fit=crop&dpr=1 600w, https://images.theconversation.com/files/358897/original/file-20200919-24-r73d1m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=441&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/358897/original/file-20200919-24-r73d1m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=441&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/358897/original/file-20200919-24-r73d1m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=554&fit=crop&dpr=1 754w, https://images.theconversation.com/files/358897/original/file-20200919-24-r73d1m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=554&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/358897/original/file-20200919-24-r73d1m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=554&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Not all nominees get confirmed by the Senate. In 1987, Reagan nominee Robert Bork was not confirmed. Bork, center, is introduced at the start of his confirmation hearings by former President Gerald Ford, left.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/OBITBORK/06c318e381844079b741dc6dc37e2a60/photo?Query=Robert%20AND%20Bork&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=123&currentItemNo=7">Charles Tasnadi/AP</a></span>
</figcaption>
</figure>
<h2>Step 4: The vote</h2>
<p>The vote to confirm requires a <a href="http://fpc.state.gov/documents/organization/50146.pdf">simple majority</a> of the senators present and voting. If the nominee is confirmed, the secretary of the Senate will transmit the confirmation vote to the president. </p>
<p>The president then will sign a commission appointing the person to the Supreme Court. </p>
<h2>The timing</h2>
<p>The real question is whether all of this can be accomplished before the election on Nov. 3, or if it will roll over into the lame-duck session of Congress after the election.</p>
<p>Either way it will be a first. The Senate has never filled a Supreme Court vacancy this close to a presidential election. The closest time in the past was when Chief Justice Charles Charles Evans Hughes <a href="https://www.nytimes.com/2020/09/19/us/politics/supreme-court-trump.html">resigned from the Court to run for president</a>. And that was 150 days before the election. </p>
<p><em>This story incorporates material from <a href="https://theconversation.com/four-steps-to-appointing-a-supreme-court-justice-54715">an article originally published on Feb. 14, 2016</a>.</em></p>
<p><em>This article has been updated to correct that Charles Evans Hughes’ vacancy was, until now, the one filled the closest to the presidential election.</em></p><img src="https://counter.theconversation.com/content/146544/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Caren Morrison does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Justice Ruth Bader Ginsburg’s death has sparked a battle over the future of the Supreme Court. Against that backdrop, a nominee faces prescribed steps towards a confirmation vote in the Senate.Caren Morrison, Associate Professor of Law, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/674982016-11-01T02:15:36Z2016-11-01T02:15:36ZWhy the Supreme Court matters for workers<p>Donald Trump touts that as president he would be good for American workers. </p>
<p>Although many of <a href="http://www.huffingtonpost.com/entry/trump-talks-tough-but-his-policies-might-do-little_us_5815d1f3e4b09b190529c623">his plans are vague or possibly harmful,</a> there is one clear outcome of a Trump presidency: with the power to appoint Supreme Court justices, <a href="http://www.advocate.com/election/2016/10/10/donald-trump-vows-appoint-supreme-court-justice-mold-scalia">Trump promises to continue a conservative majority</a>. </p>
<p>We usually think of the Supreme Court in terms of what it means for abortion rights, marriage equality and the Second Amendment. At the <a href="https://www.washingtonpost.com/news/the-fix/wp/2016/10/19/the-final-trump-clinton-debate-transcript-annotated/">third presidential debate</a>, that’s what we heard. </p>
<p>Trump vowed to appoint justices in the mold of the late Antonin Scalia who would be hostile to Roe v. Wade and bolster gun rights. Hillary Clinton said her nominees would support women’s rights, marriage equality and reverse <a href="https://www.publicintegrity.org/2012/10/18/11527/citizens-united-decision-and-why-it-matters">Citizens United</a>. </p>
<p>The candidates did not, however, address the Supreme Court’s substantial impact on the workplace – an impact that’s often ignored amid these hot-button issues.</p>
<p>Almost five decades of a conservative Court majority have sharply limited the rights of workers to unionize, form class actions and fight discrimination. The results have been profound and help explain the deterioration of the working class and the rise of <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2425296">economic inequality</a> in recent decades.</p>
<p>The court is now in a 4-4 split between liberal and conservative justices. The Senate’s refusal to confirm President Barack Obama’s nominee to replace Scalia means it’s likely the next occupant of the Oval Office will get to pick who fills that seat – and possibly several more. That will determine the kind of court Americans have for years or even decades to come.</p>
<p>Conservative appointments by a President Trump would likely continue the decimation of workplace justice, particularly collective efforts to improve working conditions and pay. As <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2836671.">I have documented</a>, a look back at some of the court’s recent rulings shows how. </p>
<h2>Killing off the class action</h2>
<p>Take the case of <a href="http://www.scotusblog.com/case-files/cases/wal-mart-v-dukes/">Wal-Mart v. Dukes</a>. </p>
<p>In 2001, past and present female workers of Wal-Mart sued the company for paying and promoting them less than their male counterparts. The workers joined together to file a class action – a legal procedure that makes it possible for relatively small claims to be aggregated so that plaintiffs can afford to bring a case. They are also <a href="http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1054&context=nulr_online">far more efficient</a> for our judicial system than hearing scores of similar claims separately. </p>
<p>Yet in 2011, <a href="https://supreme.justia.com/cases/federal/us/564/10-277/">Justice Scalia wrote</a> the opinion for a 5-4 majority that Wal-Mart was essentially too big to sue. Scalia said the plaintiff’s claims lacked a common basis and scoffed at the notion that Wal-Mart’s discretionary pay and promotion system could result in company-wide discrimination. </p>
<p>In dissent, <a href="https://www.law.cornell.edu/supct/html/10-277.ZX.html">Justice Ruth Ginsburg countered</a> that discrimination is most likely to flourish in discretionary systems like Wal-mart’s due to stereotyped assumptions that managers make about female employees, even unconsciously. </p>
<p>As a result of the ruling, the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2232349">effectiveness</a> of the class action tool in employment cases <a href="https://www.propublica.org/article/the-impact-and-echoes-of-the-wal-mart-discrimination-case">has been reduced</a>.</p>
<p>Then, in 2016, the court – without Justice Scalia – <a href="https://www.supremecourt.gov/opinions/15pdf/14-1146_0pm1.pdf">declined to expand Wal-Mart v. Dukes</a> (in a 6-2 vote) by resisting an employer’s bid to disallow statistical evidence in all class actions. </p>
<p>In that case, employees at a Tyson pork processing plant used statistics to establish the amount of time they were not paid for taking on and off their protective gear. Statistical sampling was necessary because Tyson failed to keep accurate time records. The analysis showed that employees spent an average of 18 to about 21 minutes on this task, depending on their job duties. This additional time made some employees eligible for overtime pay.</p>
<p>As a result of the case, the use of statistics in class action cases <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2860332">will continue to be hotly litigated</a>.</p>
<h2>Eroding the right to organize</h2>
<p>In the past, one of the key ways workers have improved their pay and working conditions is by forming a union. </p>
<p>Indeed, collective bargaining is associated with a <a href="http://www.epi.org/publication/benefits-of-collective-bargaining/">wage premium of 13.6 percent</a>, compared with workers who aren’t covered by such an agreement. Conversely, the <a href="https://theconversation.com/the-rise-and-fall-of-us-labor-unions-and-why-they-still-matter-38263">ongoing decline in union membership</a> is a key factor in growing economic inequality, <a href="http://asr.sagepub.com/content/76/4/513.short">depressing wages</a> of union and non-union members alike. </p>
<p>The Supreme Court has helped accelerate that decline. In 2014, the court struck down a 2003 law granting home health care workers in Illinois who are paid by Medicaid the right to collectively bargain for better wages and working conditions.</p>
<p><a href="http://www.scotusblog.com/case-files/cases/harris-v-quinn/">Justice Samuel Alito concluded</a> for the 5-4 majority that the First Amendment prohibited the state from requiring these workers to pay union dues. In so doing, <a href="https://www.law.cornell.edu/supremecourt/text/431/209">he circumvented years of precedent</a> upholding union dues for public employees as necessary to prevent <a href="https://theconversation.com/right-to-works-rapid-spread-is-creating-more-union-free-riders-38805">free-riding by non-members</a> and to give the state a single entity for negotiating purposes. </p>
<p>In dissent, <a href="http://www.scotusblog.com/case-files/cases/harris-v-quinn/">Justice Elena Kagan described</a> the labor instability that would result from the court’s ruling. She also noted evidence that collective bargaining helped the workers double their wages, obtain health insurance and receive better training and enhanced workplace safety. Those benefits could vanish without collective bargaining, harming not only the workers but also the elderly and disabled people for whom they care. </p>
<p>Scalia’s sudden death in February ended up giving unions a reprieve in another important case involving the constitutionality of requiring public workers to pay their fair share of union dues, even if they aren’t a member. That case, <a href="http://www.scotusblog.com/case-files/cases/friedrichs-v-california-teachers-association/">Friedrichs v. California Teachers Association</a>, was heard in January, with a <a href="https://www.washingtonpost.com/news/wonk/wp/2016/02/13/the-most-significant-case-that-could-be-immediately-affected-by-scalias-death/">skeptical Scalia</a> in attendance, but in March the Court issued a 4-4 decision that left a lower court’s decision upholding such fees intact. </p>
<p>Split decisions mean whatever ruling immediately preceded the hearing before the Supreme Court stands but doesn’t create a precedent. This issue will arise again, and, obviously, the next justice will tilt the balance.</p>
<h2>Health care and religious belief</h2>
<p>Health care is another area where a slim conservative majority has rolled back worker protections. </p>
<p>In <a href="http://www.scotusblog.com/case-files/cases/sebelius-v-hobby-lobby-stores-inc/">Burwell v. Hobby Lobby Stores, Inc.</a>, Hobby Lobby and other privately held employers objected on religious grounds to paying for certain forms of legally mandated contraceptive coverage for millions of employees and their dependents. The court in 2014 upheld the employers’ religious claims in a 5-4 ruling.</p>
<p>In so doing, the court privileged the religious beliefs of business owners against the health care needs of employees. The decision overturned part of the <a href="https://theconversation.com/for-women-even-a-small-co-pay-for-contraception-can-be-a-big-deal-41877">Affordable Care Act</a> – a law passed through our democratic process with an express purpose of expanding preventative care for women and reducing gender inequities in the cost of care. </p>
<p>The connection between access to contraception and the economic success of women is <a href="http://theconversation.com/how-limiting-womens-access-to-birth-control-and-abortions-hurts-the-economy-57546">clear cut</a>. To succeed in education and in the workplace, women need the ability to control the timing and size of their families.<br>
The Hobby Lobby ruling expresses a robust view of equality for corporations but none for women. It might spread to other areas as well. As <a href="http://www.theatlantic.com/politics/archive/2014/06/read-justice-ginsburgs-passionate-35-page-dissent-in-the-hobby-lobby-decision/373703/">Justice Ginsburg asked</a>: </p>
<blockquote>
<p>“Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work?”</p>
</blockquote>
<p>The Obama Administration <a href="http://kff.org/womens-health-policy/issue-brief/round-2-on-the-legal-challenges-to-contraceptive-coverage-are-nonprofits-substantially-burdened-by-the-accommodation/">approved accommodations</a> for religious employers to avoid paying for employees’ contraceptive coverage directly. All they had to do was fill out a form, and, under the accommodation, insurers would pay for it instead. </p>
<p><a href="http://www.scotusblog.com/case-files/cases/zubik-v-burwell/">Some non-profit religious employers objected</a> to even that and took their claim to the Supreme Court earlier this year.</p>
<p>Apparently at an impasse and without a ninth justice, the court sent the government and the religious employers <a href="http://www.theatlantic.com/politics/archive/2016/05/the-supreme-courts-non-sensical-ruling-in-zubik/482967/">back to the drawing board</a> to find a solution. Thus, it remains unresolved – for now – whether the Obama Administration’s accommodation on birth control coverage is lawful. And once again, who fills Scalia’s seat will likely determine whether such coverage remains a part of Obamacare for employees of religious employers. </p>
<h2>The Supreme Court matters</h2>
<p>These are just a few of the more significant cases of recent years in which a slim conservative majority has rolled back worker rights. </p>
<p>It’s likely that these issues will continue to be fought in the courts and find their way to the Supreme Court, along with many others. Simply put, a Trump-appointed Justice is far more likely, in my view, to rule against workers than a Clinton nominee. </p>
<p>Whatever impact his other policies would have on the working class, it is clear his appointments for the highest court in the land would hurt workers and make it that much harder for them to join together to fight for their rights.</p><img src="https://counter.theconversation.com/content/67498/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michele Gilman is affiliated with the Women's Law Center of Maryland and the ACLU of Maryland. She is a registered Democrat and has donated to Democrats in the past. </span></em></p>A Trump victory on Nov. 8 would preserve a conservative majority on the court. A look back at its recent decisions shows why that would be very bad for workers’ rights.Michele Gilman, Venable Professor of Law, University of BaltimoreLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/648762016-09-20T03:41:04Z2016-09-20T03:41:04ZThe future of the US Supreme Court is at stake no matter who wins in November<figure><img src="https://images.theconversation.com/files/137633/original/image-20160913-4944-tt5n3s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The next president will have a unique opportunity to mould the Supreme Court bench.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Supreme_Court.jpg">Ken Hammond, US Department of Agriculture</a></span></figcaption></figure><p>At a recent rally of Donald Trump supporters in North Carolina, Republican vice-presidential candidate Mike Pence said the result of the November presidential election would determine the shape of the US Supreme Court <a href="http://www.greensboro.com/news/government/elections/pence-calls-trump-election-crucial-for-supreme-court-video/article_ecf9ac0b-01f6-5b91-a22a-eae2eb31c9a9.html">for the next 40 years</a>. </p>
<p>Pence’s words were not just overblown political rhetoric. The next president will have a unique opportunity to mould the Supreme Court bench.</p>
<p>The age of the justices is the key reason. For the past 65 years, the average age of retirement for Supreme Court justices <a href="http://www.scotusblog.com/2016/09/the-court-after-scalia-the-2016-election-and-the-fate-of-the-wall-separating-church-and-state/">has been 78</a>. With three current justices 78 or older and one seat on the court vacant, the next president may end up nominating four justices in their first term.</p>
<h2>The current court</h2>
<p><a href="http://www.archives.gov/exhibits/charters/constitution_transcript.html">Article 3, Section 1</a> of the US Constitution provides Supreme Court justices:</p>
<blockquote>
<p>… shall hold their offices during good behaviour. </p>
</blockquote>
<p>In short, justices are appointed for life or until such time as they choose to retire. </p>
<p>The <a href="https://www.supremecourt.gov/about/biographies.aspx">three justices</a> nudging (or over) 80 include two of the acknowledged liberals, Ruth Bader Ginsburg and Stephen Breyer – both of whom were appointed by Bill Clinton. </p>
<p>They, along with Sonia Sotomayor and Elena Kagan (both nominated by Barack Obama), constitute the liberal wing of the bench. As liberals, they have favoured lifting restrictions on <a href="https://www.supremecourt.gov/opinions/15pdf/15-274_new_e18f.pdf">access to abortion</a>, limiting the scope of <a href="https://www.supremecourt.gov/opinions/15pdf/14-1373_83i7.pdf">police power to search</a>, and <a href="https://www.supremecourt.gov/opinions/15pdf/14-981_4g15.pdf">affirmative action</a>. </p>
<p>Although nominated to the Supreme Court by Republican president Ronald Reagan, <a href="https://www.supremecourt.gov/about/biographies.aspx">Anthony Kennedy</a>, who turned 80 in July, is known as the swing justice. </p>
<p>In close decisions, Kennedy’s vote has often been the deciding one. For instance, he authored the majority opinion (5-4) in the <a href="https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf">2015 case</a> that affirmed the right to same-sex marriage. As expected, the four liberal justices joined his decision. </p>
<p>The remaining three justices – John Roberts, Clarence Thomas and Samuel Alito – are acknowledged conservatives. George H.W. Bush nominated Thomas, while his son nominated Alito and Roberts.</p>
<p>None of the three are likely to retire in the near future. If, however, the winner of November’s presidential election secures a second term in 2020, then there is a distinct possibility that one or more of the conservative justices may retire.</p>
<p>Therefore, if the next president serves two terms, they may end up replacing almost the entire Supreme Court bench. No president since Franklin Roosevelt, who <a href="https://www.supremecourt.gov/about/members_text.aspx">appointed eight justices</a> from the late 1930s into the early 1940s, has enjoyed such a privilege. The last president to nominate more than three justices was Dwight Eisenhower, who nominated four between 1955 and 1958.</p>
<h2>Scalia’s vacant seat</h2>
<p>In addition to the possible retirements, the Supreme Court is still one justice down.</p>
<p>Antonin Scalia <a href="http://www.nytimes.com/2016/02/14/us/antonin-scalia-death.html?_r=0">died suddenly in February 2016</a>. Obama moved swiftly to nominate a replacement for Scalia. He chose <a href="https://www.whitehouse.gov/scotus">Merrick Garland</a>, chief justice of the Washington D.C. Circuit Court. </p>
<p>But the Republican-controlled Senate Judiciary Committee has <a href="http://observer.com/2016/05/republican-congressman-calls-on-senate-to-give-merrick-garland-a-hearing/">refused to call</a> nomination hearings for Garland. The responsibility of filling Scalia’s vacant seat, argue the Republicans, belongs to the next president, not to Obama. </p>
<h2>The Senate’s role</h2>
<p>The presidential election will not be the only election to determine the future shape of the Supreme Court.</p>
<p>The Senate Judiciary Committee, and then the Senate, votes on and confirms nominees to the court.</p>
<p>Even if Hillary Clinton wins the presidency, her right to shape the Supreme Court is not assured. If the Republicans maintain control of the Senate, future nominations face the possibility of being deadlocked or delayed. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/137634/original/image-20160913-4958-ms0whj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/137634/original/image-20160913-4958-ms0whj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/137634/original/image-20160913-4958-ms0whj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/137634/original/image-20160913-4958-ms0whj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/137634/original/image-20160913-4958-ms0whj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/137634/original/image-20160913-4958-ms0whj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/137634/original/image-20160913-4958-ms0whj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Marbury v Madison (1803), US Supreme Court.</span>
<span class="attribution"><span class="source">Wikimedia Commons</span></span>
</figcaption>
</figure>
<h2>The Supreme Court and the election</h2>
<p>Convention dictates the justices remain non-partisan, removed from the fray of contemporary politics. Their role is to act as a check on both the executive and the legislature to ensure politics does not prompt government to overstep constitutional authority. </p>
<p>But as the current court has shown, justices tend to vote in line with the political leanings of the president who appointed them. This is hardly a surprise. Presidents nominate well-qualified candidates, but they also pick those likely to support their legislative and political agendas.</p>
<p>This election has signalled a departure from tradition. In May, Ginsburg <a href="http://www.smh.com.au/world/did-supreme-court-justice-ruth-bader-ginsburg-cross-a-line-in-bashing-donald-trump-20160712-gq3poa.html">publicly lambasted</a> Trump. In doing so, she broke with convention, which dictates that Supreme Court justices do not comment on current politics – particularly presidential candidates. </p>
<p>In June, Trump responded with an unusual move of his own, releasing a list of <a href="https://www.donaldjtrump.com/press-releases/donald-j.-trump-releases-list-of-names-of-potential-united-states-supreme-c">11 potential nominees</a> to the court. As expected, all are conservative. All are white. </p>
<p>These recent actions signal the extent to which the court itself and the presidential candidates realise what’s at stake this election. Over the next four years, the Supreme Court is likely to hear cases relating to voting rights, <a href="http://www.scotusblog.com/2016/09/the-court-after-scalia-the-2016-election-and-the-fate-of-the-wall-separating-church-and-state/">freedom of religion</a>, gun control and abortion rights. The next president will play an important role in determining who gets to hear those cases.</p>
<p>Speaking to the crowd in North Carolina, Pence <a href="http://www.greensboro.com/news/government/elections/pence-calls-trump-election-crucial-for-supreme-court-video/article_ecf9ac0b-01f6-5b91-a22a-eae2eb31c9a9.html">warned</a> a Clinton Supreme Court would use “unaccountable power to make unconstitutional decisions”. His words were an <a href="http://crdl.usg.edu/export/html/ugabma/wsbn/crdl_ugabma_wsbn_42214.html?Welcome">eerie echo</a> of claims made by white southern Democrats in the 1950s as they pushed back against the <a href="http://www.civilrights.org/education/brown/?">historic Supreme Court decision</a> that desegregated public schools in 1954.</p>
<p>For the Supreme Court, the stakes in this election are high. The future of justice in the US hinges on the outcome of November’s vote.</p><img src="https://counter.theconversation.com/content/64876/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Felicity Turner does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>With three current Supreme Court justices aged 78 or older and one seat on the court vacant, the next US president may end up nominating four justices in their first term.Felicity Turner, Assistant Professor of History, Armstrong State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/550152016-03-14T10:06:27Z2016-03-14T10:06:27ZWhy we have the most polarized Supreme Court in history<p>The unexpected passing of Justice Antonin Scalia has had and will have enormous ramifications across the American polity. </p>
<p>Prior to his passing on February 13, hardly a word was mentioned about the Supreme Court in any of the presidential debates. In contrast, subsequent <a href="https://www.washingtonpost.com/news/the-fix/wp/2016/02/25/the-cnntelemundo-republican-debate-transcript-annotated/">debates</a> mentioned the words “court” or “justice” more than 20 times. </p>
<p>And barely an hour after Scalia’s passing, Senate Majority Leader Mitch McConnell declared that no replacement should be named until after the 2016 election. </p>
<p>As to the court itself, the impacts of Scalia’s passing could be significant, including a reprieve for affirmative action (Fisher v. Texas), an inability to prohibit mandatory union dues by public employees (Friedrichs v. California Teachers’ Association) and greater leeway under the Second Amendment to regulate guns (Voisine v. United States). </p>
<p>In fact, if a Democratic president gets to appoint the next justice, the doctrine that the Second Amendment provides an individual right to bear arms, and not just a right of state militias (United States v. Heller), could fall, as could the doctrine that campaign contributions by individuals and corporations are a form of speech protected by the First Amendment. </p>
<p>My confidence in this assertion is based on the fact that in recent times, unlike any time in our history, we are unlikely to see conservative Democrats or liberal Republicans on the Supreme Court. </p>
<p>That’s because the Supreme Court is more polarized politically than it’s ever been. If historical trends continue, the next Supreme Court justice will not be a moderate, but a person with strong ideological views.</p>
<h2>Different times</h2>
<p>For the first time in the Supreme Court’s history, every Republican on the court is to the right of every Democrat, as measured by the <a href="http://mqscores.berkeley.edu/">Martin-Quinn score</a>.</p>
<p>I submit that at least part of the reason for this polarization on the court is the polarization in the Senate.</p>
<p>Because justices are nominated by the president and confirmed by the Senate, the impact of party on the choice of justices should roughly reflect the amount of partisan division at the time of the justices’ appointment. And indeed, we have seen this in decades past.</p>
<p>For example, the 94th Senate confirmed John Paul Stevens, a liberal Republican, at a time when there were many liberal Republicans in the Senate, such as Jacob Javits (New York) and Edward Brooke (Massachusetts). </p>
<p>Similarly, the 92nd Senate confirmed Lewis Powell, a conservative Democrat, at a time when conservative Democrats such as John Stennis and James Eastland (both Mississippi) were fairly common. </p>
<p>Given <a href="http://poq.oxfordjournals.org/content/75/4/812.short">growing party polarization in Congress over the last 30 years</a>, we should also expect a relatively tighter fit between party and voting behavior on the court in 2010 than we would find in 1994. But has that actually been the case? </p>
<h2>Spreading partisanship</h2>
<p>Consider the following evidence. I start by examining the overlap between partisanship in the 98th Senate (1983-84) and the justices serving 10 years later – that is, the 1994 term of the court. With new appointments every few years a polarized Senate would not have an immediate effect on the court, but over time the impact would grow.</p>
<p>As the graph below shows, there was a fair amount of overlap in partisanship in the 98th Senate as represented by <a href="http://blogs.iq.harvard.edu/sss/archives/2005/10/ideal_points_1.shtml">ideal points</a>, a common way to measure political leanings. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/113640/original/image-20160302-25866-1fv0fi3.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/113640/original/image-20160302-25866-1fv0fi3.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=437&fit=crop&dpr=1 600w, https://images.theconversation.com/files/113640/original/image-20160302-25866-1fv0fi3.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=437&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/113640/original/image-20160302-25866-1fv0fi3.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=437&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/113640/original/image-20160302-25866-1fv0fi3.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=549&fit=crop&dpr=1 754w, https://images.theconversation.com/files/113640/original/image-20160302-25866-1fv0fi3.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=549&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/113640/original/image-20160302-25866-1fv0fi3.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=549&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Figure 1: Ideal points (liberal to conservative) by party 98th Senate with Republican senators in black, Democratic senators in white.</span>
</figcaption>
</figure>
<p>Ten years later, we find, based on <a href="http://mqscores.berkeley.edu/">commonly used ideology scores of the justices</a>, Republican Justice John Paul Stevens to be the most liberal member of the court, while Republican Justice David Souter falls to the left of Democratic Justice Stephen Breyer.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/113641/original/image-20160302-25897-10p52ev.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/113641/original/image-20160302-25897-10p52ev.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=437&fit=crop&dpr=1 600w, https://images.theconversation.com/files/113641/original/image-20160302-25897-10p52ev.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=437&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/113641/original/image-20160302-25897-10p52ev.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=437&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/113641/original/image-20160302-25897-10p52ev.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=549&fit=crop&dpr=1 754w, https://images.theconversation.com/files/113641/original/image-20160302-25897-10p52ev.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=549&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/113641/original/image-20160302-25897-10p52ev.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=549&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Figure 2. Ideal points (liberal to conservative) of the justices by party, 1994 term. Legend: nominees by Republican presidents in CAPS.</span>
<span class="attribution"><span class="source">Andrew Martin and Kevin Quinn</span></span>
</figcaption>
</figure>
<p>Then I look at the partisanship in the 107th Senate (2001-03) and the justices serving on the 2010-11 term. By the 107th Senate, we observe far less overlap between Republicans and Democrats. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/113642/original/image-20160302-25869-119av96.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/113642/original/image-20160302-25869-119av96.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=436&fit=crop&dpr=1 600w, https://images.theconversation.com/files/113642/original/image-20160302-25869-119av96.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=436&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/113642/original/image-20160302-25869-119av96.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=436&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/113642/original/image-20160302-25869-119av96.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=548&fit=crop&dpr=1 754w, https://images.theconversation.com/files/113642/original/image-20160302-25869-119av96.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=548&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/113642/original/image-20160302-25869-119av96.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=548&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Ideal points (liberal to conservative) by party, 107th Senate with Republican senators in black, Democratic sSenators in white.</span>
</figcaption>
</figure>
<p>The increasing homogeneity of the Republican Party since the 1980s, combined with the battle cry “<a href="http://www.wsj.com/articles/SB112173866457289093">No More Souters</a>,” should make it increasingly difficult for a Republican president to nominate a Supreme Court justice who overlaps ideologically with Democratic justices. </p>
<p>Has this happened? While Harriet Miers’ lack of qualifications no doubt hurt her chances for confirmation, her failure was certainly aided and abetted by conservatives who were not certain about her ideological purity, given her ambiguous statements about abortion rights as well as her past political contributions to Democrats Albert Gore and Lloyd Bentsen. In fact, conservative commentator Charles Krauthammer <a href="http://www.washingtonpost.com/wp-dyn/content/article/2005/10/06/AR2005100601468.html">laid out her eventual exit strategy</a>. (She eventually withdrew her nomination.)</p>
<p>To a lesser extent, liberal Democrats vocally expressed some dissatisfaction that President Obama’s choice to replace Justice Stevens, Elena Kagan, was <a href="http://www.nytimes.com/2010/05/11/us/politics/11nominees.html">not sufficiently liberal</a>. While Democrats had no intention of voting against Kagan, the carping about her nomination was certainly a signal from liberal Democrats to President Obama to resist further movement toward the political center in future nominations. </p>
<p>The make-up of today’s court does indeed reflect a partisan legislature. Ten years after the 107th Senate, and given Justice Stevens’ retirement, we no longer observe any overlap between Republicans and Democrats on the court, as seen in the chart below. The five Republicans on the court (in CAPS) place above the four Democrats.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/113643/original/image-20160302-25918-nw6k64.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/113643/original/image-20160302-25918-nw6k64.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/113643/original/image-20160302-25918-nw6k64.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=437&fit=crop&dpr=1 600w, https://images.theconversation.com/files/113643/original/image-20160302-25918-nw6k64.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=437&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/113643/original/image-20160302-25918-nw6k64.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=437&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/113643/original/image-20160302-25918-nw6k64.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=549&fit=crop&dpr=1 754w, https://images.theconversation.com/files/113643/original/image-20160302-25918-nw6k64.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=549&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/113643/original/image-20160302-25918-nw6k64.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=549&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Ideal points (liberal to conservative) of the justices, 2010 term, with nominees by Republican presidents in CAPS.</span>
<span class="attribution"><span class="source">Andrew Martin and Kevin Quinn</span>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>To be sure, this complete segregation by party exists only because of the retirement of Justice Stevens in 2010. But Justice Stevens, from the moderate wing of the Republican Party, was appointed at a time when there were many moderates and even some liberals in the Republican Party. </p>
<p>My model of course cannot predict how long partisan-ideological aberrations such as Stevens will remain on the court. But as long as the partisan-ideological stance of the Senate remains, the Supreme Court will continue, with a certain time lag, to gain justices on either ends of the partisan spectrum.</p><img src="https://counter.theconversation.com/content/55015/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeffrey Segal receives funding from National Science Foundation. </span></em></p>You’re not imagining it: the Supreme Court has gotten more polarized politically than in years past, thanks to fewer moderates in the Senate.Jeffrey Segal, Professor of Political Science, Stony Brook University (The State University of New York)Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/558022016-03-11T11:12:48Z2016-03-11T11:12:48ZSupreme Court losing luster in public’s eyes<p>In her iconic rendition of “Proud Mary,” Tina Turner begins with a sultry hiss:</p>
<blockquote>
<p>Sometimes we like to do things nice and easy. But we never like to do things completely nice and easy, because sometimes we like to do things nice…and rough!</p>
</blockquote>
<p>The same may be said when it comes to analyzing public survey data about the Supreme Court (to strengthen the metaphor, you could envision this law professor at his keyboard in a sequined cocktail dress, but I don’t recommend it).</p>
<p>There are certain “easy” things one can say about the numbers, and I will turn to them first. Then there are deeper implications, which is where the going gets rough, and I will discuss those second. </p>
<p>First, the easy bit.</p>
<h2>Democrats and Republicans take turns yelling</h2>
<p>The Pew Research Center has been conducting surveys on the Supreme Court for over 30 years. Their <a href="http://www.people-press.org/2015/07/29/negative-views-of-supreme-court-at-record-high-driven-by-republican-dissatisfaction/">most recent survey</a> from 2015
shows that 48 percent of the public holds a favorable opinion of the Supreme Court, as compared to 43 percent, who report a negative opinion. </p>
<p>Pew reports a recent decline in public approval, which it attributes to a sharp drop in support from conservatives after the Supreme Court’s decisions in the<a href="https://theconversation.com/the-supreme-court-upholds-same-sex-marriage-expert-reaction-43961"> same-sex marriage</a> and <a href="https://theconversation.com/experts-react-as-obamacare-survives-another-near-death-experience-43233">Obamacare</a> cases.</p>
<p>But before you conservatives get too hot and bothered, note this: as recently as 2010, the shoe was on the other foot, when declining public support for the Supreme Court was accelerated by liberals, who then viewed the court less favorably than conservatives.</p>
<p>None of this is especially surprising.</p>
<p>First, <a href="http://www.people-press.org/2015/07/29/negative-views-of-supreme-court-at-record-high-driven-by-republican-dissatisfaction/">70 percent</a> of us, according to Pew, think that politics influences the choices justices make. And <a href="http://www.cambridge.org/US/academic/subjects/politics-international-relations/american-government-politics-and-policy/supreme-court-and-attitudinal-model-revisited">social science data</a> corroborate the public’s view, by showing a strong correlation between a justice’s ideological predilections and the decisions he or she makes.</p>
<p>Second, 56 percent believe that that the justices “should consider what most Americans think” when they decide cases. </p>
<p>It’s true that canons of judicial ethics direct judges not to be influenced by “public clamor” when deciding cases. And indeed many college-educated folk share this view. </p>
<p>But when a significant segment of the public thinks that the justices make political choices and that the public’s political preferences should influence those choices, it follows that the public will view the court more or less favorably depending on whether the court implements the public’s political preferences.</p>
<p>All of which may have little to do with the legal questions the court is deciding. </p>
<p>For example, whether the public thought favorably of the Supreme Court after its decision to uphold the Affordable Care Act case may have more to do with whether the public liked Obamacare than whether it thought the legislation exceeded Congress’s constitutional authority to regulate commerce or raise taxes. </p>
<p>And so, Republicans and Democrats take turns yelling at the court, depending on whose ox the court has gored lately. </p>
<p>So far, so easy. </p>
<p>But here is where the sledding gets rougher. </p>
<h2>Long-term loss in popular support</h2>
<p>Over the past 30 years, <a href="http://www.people-press.org/2015/07/29/negative-views-of-supreme-court-at-record-high-driven-by-republican-dissatisfaction/">the Pew numbers</a> show that favorable views of the Supreme Court have declined from 64 percent in 1985 to 48 percent in 2015, while unfavorable opinions have increased from 28 percent to 43 percent. </p>
<p>Why? </p>
<p>It’s not as simple as saying that the Supreme Court has gotten too liberal or too conservative, because liberals and conservatives have both contributed to the long, slow decline in popular support for the Supreme Court.</p>
<p>Part of the answer may be that the public is simply fed up with the federal government generally, which includes the Supreme Court for reasons having nothing to do with the court specifically. </p>
<p>But something more is at work here, which has politicized the court in new and different ways. Just check out this <a href="http://media.cagle.com/77/2013/10/22/139124_600.jpg">political cartoon</a> where a tree that has lost its leaves reveals twigs spelling out the faults of each of the government’s three branches. “Incompetence” is the legislative branch’s problem and “secrecy” the executive’s. </p>
<p>And the judiciary’s? “Politics.” But what does that mean?</p>
<h2>The impact of the partisan divide</h2>
<p>It is not just that the court or its justices have acquired an ideological bent – we’ve known that for a long time, and political scientists <a href="http://press.princeton.edu/titles/8940.html">Greg Caldeira and James Gibson</a> have shown that the public does not second-guess the court’s legitimacy on that basis. </p>
<p>In a new book, <em><a href="https://global.oup.com/academic/product/courting-peril-9780190233495?lang=en&cc=us#">Courting Peril: The Political Transformation of the American Judiciary</a>,</em> I argue that a combination of events generations in the making is turning the American judiciary into a <a href="https://theconversation.com/why-do-we-pretend-supreme-court-justices-are-anything-but-political-officials-54941">much more political place</a>, in which the public is increasingly skeptical of judges and their motives. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/114336/original/image-20160308-22132-dwzmai.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/114336/original/image-20160308-22132-dwzmai.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=908&fit=crop&dpr=1 600w, https://images.theconversation.com/files/114336/original/image-20160308-22132-dwzmai.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=908&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/114336/original/image-20160308-22132-dwzmai.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=908&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/114336/original/image-20160308-22132-dwzmai.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1141&fit=crop&dpr=1 754w, https://images.theconversation.com/files/114336/original/image-20160308-22132-dwzmai.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1141&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/114336/original/image-20160308-22132-dwzmai.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1141&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Ronald Reagan with Robert Bork in the Oval Office.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Reagan_with_Robert_Bork_1987.jpg">US Government</a></span>
</figcaption>
</figure>
<p>This began in earnest in 1987 with the Senate’s rejection of <a href="http://blog.constitutioncenter.org/2015/10/on-this-day-senate-rejects-robert-bork-for-the-supreme-court/">Robert Bork’s nomination</a> to the Supreme Court. It was a nomination process so contentious that it inspired a new verb, “to bork,” defined by the <a href="http://www.oxforddictionaries.com/us/definition/american_english/bork">Oxford English Dictionary</a> as: </p>
<blockquote>
<p>To obstruct (someone, especially a candidate for public office) through systematic defamation or vilification. </p>
</blockquote>
<p>The new politics of judicial appointments have transformed judicial selection into an ideological battleground that gets amplified in the public debate. </p>
<p>The traditional media <a href="http://www.academia.edu/5058189/News_Media_Portrayal_of_Ideology_and_Division_among_Supreme_Court_Justices">now explain</a> Supreme Court decisions with reference to the court’s ideological voting blocs; cable news stations such as Fox and CNBC report on the Supreme Court from decidedly partisan perspectives; while a new breed of <a href="http://www.frc.org/">citizen journalists</a> offer a critique of the courts in a host of online venues that are unconstrained by the norms of traditional journalism. </p>
<p>At the same time, legislative oversight of such seemingly benign subjects as court practice, procedure, structure, jurisdiction and budgets have become more and more politically charged. For example, with the court’s ruling on Obamacare impending, ideologically aligned interest groups <a href="http://www.pressreader.com/usa/houston-chronicle-sunday/20111204/294385649961513/TextView">clamored</a>
for the disqualification of both Justices Kagan and Thomas. </p>
<p>The public’s confidence in the courts does not turn on pretending that sterile interpretations of “law” are all that matter to justices or that ideology plays no part in the choices justices make.</p>
<p>But the public does expect judges to be fair and to take law seriously. When people start to think that judges are nothing more than political hacks in robes, trouble follows. </p>
<p>It’s not surprising, therefore, that <a href="http://press.princeton.edu/titles/8940.html">Caldeira and Gibson</a> have found that the court’s legitimacy suffers when Supreme Court appointments proceedings devolve into partisan warfare, in which each side accuses the other of appointing ideological extremists. This creates the perception that the judiciary is peopled with zealots who are indifferent to law and justice. </p>
<p>I don’t mean to suggest that the court itself shouldn’t bear some of the responsibility for declining public support. But it is hard for the public to feel good about its Supreme Court in a partisan climate this polarized. </p>
<p>After Justice Scalia’s death, for example, the <a href="http://www.cnn.com/2016/02/23/politics/joe-biden-supreme-court-senate-republicans/">Senate preemptively declared </a>the president’s nominee unfit to serve before he or she was even named, on the assumption that working together to find an honorable, politically acceptable replacement was impossible. </p>
<p>Lost in this partisan fecal fest is an important truth: capable, qualified and honorable judges are not unicorns. They exist – and they are no less capable, qualified and honorable, simply because they do not always agree with each other, with us, or with the politicians who appointed them.</p><img src="https://counter.theconversation.com/content/55802/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles Gardner Geyh does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>What public opinion surveys reveal about changing attitudes toward the Supreme Court.Charles Gardner Geyh, John F. Kimberling Professor of Law, Indiana UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/553522016-03-11T11:12:39Z2016-03-11T11:12:39ZWhat AI can tell us about the U.S. Supreme Court<figure><img src="https://images.theconversation.com/files/114484/original/image-20160309-13712-1mydjdv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Modeled by artificial intelligence: The Roberts Court, 2010-2016.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Supreme_Court_US_2010.jpg">Steve Petteway, US Supreme Court</a></span></figcaption></figure><p>The lifetime tenure of each of the U.S. Supreme Court’s nine justices means they have long-lasting influences on the country’s affairs. How a justice votes in a case is a reflection of his or her judicial temperament, personal philosophy and political ideology. </p>
<p>Political scientists, lawyers, constitutional scholars and laymen alike closely watch the court. They often attempt to divine what happens during the justices’ secret deliberation sessions and during the process of drafting the opinions that will ultimately be released to the public.</p>
<p>As public attention focuses on the court in the wake of the February death of Associate Justice Antonin Scalia, we at the <a href="http://dac.cs.vt.edu/">Discovery Analytics Center at Virginia Tech</a> offer a way for artificial intelligence to provide some insight. In a <a href="http://people.cs.vt.edu/naren/papers/scipm-aaai06.pdf">recently published paper</a>, we propose a way to model the Supreme Court using computer-based machine learning. </p>
<p>We devised a data-driven framework that <em>learns</em> justices’ judicial preferences and voting behavior; it can be used to answer questions about the justices’ voting behavior. For example: how will the justices vote in a case about a particular topic? Which coalitions are likely to become relevant? Who is likely to be the swing justice in a given case or term?</p>
<p>Our model was able to create a reasonably accurate assessment of justices’ views on issues, predict their alignments on cases and identify who might be a swing vote.</p>
<h2>Figuring out where the justices stand</h2>
<p>Justices take initial stances toward a case by reading prehearing filings. Then they explore issues during a hearing, make decisions in a posthearing meeting among the justices and write their opinions thereafter. </p>
<p>These opinions represent different groups – a unanimous court, a majority of the court, dissents from with the majority decision and even opinions that concur in part and dissent in part. Each opinion can be written by one or more justices, or written by one and joined by others.</p>
<p>As a result, it is challenging to determine the justices’ actual positions on the issues that come before the court. In the past, methods have been devised to assign each justice a numeric score called an “ideal point,” indicating his or her hypothetical position on a spectrum of views on an issue, using <a href="https://www.jstor.org/stable/1962405">news coverage of their nominations</a> or their <a href="http://mqscores.berkeley.edu/media/pa02.pdf">voting records on cases</a>. However, these approaches do not use the rich text resources available in the decisions.</p>
<p>Our model, called the Supreme Court Ideal Point Miner (SCIPM), augments the existing research with information on judicial preferences gleaned from opinion texts. </p>
<h2>Analyzing the text</h2>
<p>The model assumes that each case involves a mixture of several issues or topics, on which justices have distinct views. For example, a case may involve a search that uncovered an illegally owned firearm; any individual justice’s views on the Fourth and Second Amendments may come into conflict with each other. The final opinion that justice writes or joins will reflect aspects of both positions.</p>
<p>Our system looks at the text of the opinions and counts the number of words related to each issue that factors into the decision. It assigns a relative weight to each such issue based on the share of relevant words. For example, words like “search” and “warrant” can suggest a connection to the Fourth Amendment.</p>
<p>By aggregating the analyses of multiple opinions – our research looked at those issued from 2010 to 2014 – the model can tell how strongly each justice feels about an issue. </p>
<p>But it is not capable of determining which direction those feelings go. For that we need to look at the justices’ voting records directly.</p>
<p>Our analysis shows the range of views held by justices on selected issues, as shown below. They range across a spectrum from very liberal (far left) to very conservative (far right).</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/114387/original/image-20160309-22120-12hrulk.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/114387/original/image-20160309-22120-12hrulk.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=341&fit=crop&dpr=1 600w, https://images.theconversation.com/files/114387/original/image-20160309-22120-12hrulk.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=341&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/114387/original/image-20160309-22120-12hrulk.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=341&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/114387/original/image-20160309-22120-12hrulk.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=428&fit=crop&dpr=1 754w, https://images.theconversation.com/files/114387/original/image-20160309-22120-12hrulk.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=428&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/114387/original/image-20160309-22120-12hrulk.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=428&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Each horizontal line represents an issue and the dots on the line represents the ideal-point value for the justices. Justices appointed by Republicans are indicated with red dots; blue is for Democrat-appointed justices.</span>
</figcaption>
</figure>
<h2>Finding swing justices</h2>
<p>Our model can also identify the swing justices of the court by looking at how much each justice’s ideal point varies across multiple issues. A justice who is consistently far to one side is less likely to swing than a justice whose votes range across the spectrum.</p>
<p>The model identifies Associate Justice Anthony Kennedy as the justice most likely to swing, followed by Chief Justice John Roberts Jr., because their positions vary more widely across issues than their colleagues. Roberts’ ranking as the second swing justice is also explainable given his (surprising) <a href="http://www.reuters.com/article/us-usa-court-obamacare-idUSKBN0LS0BL20150224">votes to affirm</a> the Patient Protection and Affordable Care Act (“Obamacare”). </p>
<p>This can be validated by observing all cases decided by a margin of 5-4 – the cases where swing justices come most into play. We look at which justices have grouped themselves into those five-vote majorities. The three most frequent coalitions are shown below.</p>
<iframe src="https://datawrapper.dwcdn.net/AhjkI/1/" frameborder="0" allowtransparency="true" allowfullscreen="allowfullscreen" webkitallowfullscreen="webkitallowfullscreen" mozallowfullscreen="mozallowfullscreen" oallowfullscreen="oallowfullscreen" msallowfullscreen="msallowfullscreen" width="100%" height="225"></iframe>
<p>Looking at those coalitions, it is clear that, apart from top swing voter Kennedy, justices appointed by Democratic and Republican presidents tend to cluster together in split decisions.</p>
<h2>Looking at individual justices and cases</h2>
<p>An interesting finding of our experiment is the role of Associate Justice Sonia Sotomayor in cases related to the Fourth Amendment, which protects citizens against unreasonable search and seizure. She has a very different ideology on this particular issue compared to her colleagues. This <a href="http://reason.com/blog/2015/01/22/sotomayor-to-justice-department-lawyer-w">observation</a> can be validated with <a href="https://epic.org/privacy/sotomayor/">other articles</a> that <a href="http://www.huffingtonpost.com/evan-bernick/justice-sotomayor_b_6534970.html">report</a> her disagreement with her colleagues on this particular issue. </p>
<p>What we learn from the model can be used both to describe the decision process for an individual case and also to make predictions about future cases. Its accuracy is 79.46 percent, which we calculate by dividing into five sections the case history from 2010 to 2014 – where decisions and opinion arguments are available. We teach the model from four of the five parts, and evaluate its predictions on the fifth part against what actually happened.</p>
<p>Our model also reflects the reality that some justices are more frequent collaborators than others, even within their respective political wings. For example, Justice Roberts and Justice Alito generally collaborate more frequently than others.</p>
<p>Future research we have planned includes evaluating public response to decisions, such as commentary on social media, to learn what types of cases people are most attracted to; expanding the data in the model to cover more decisions over more time; and using text transcripts of the oral arguments to attempt to predict outcomes of cases that have not yet been decided.</p><img src="https://counter.theconversation.com/content/55352/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Our data-driven model was able to create a reasonably accurate assessment of justices’ views on issues, predict their alignments on cases and identify who might be a swing vote.Mohammad Raihanul Islam, Ph.D. student at Discovery Analytics Center, Virginia TechK.S.M. Tozammel Hossain, Ph.D. student at Discovery Analytics Center, Virginia TechSiddharth Krishnan, Ph.D. student at Discovery Analytics Center, Virginia TechLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/560902016-03-11T04:43:47Z2016-03-11T04:43:47ZHow Commonwealth countries have forged a new way to appoint judges<figure><img src="https://images.theconversation.com/files/114670/original/image-20160310-26274-2yu15i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Kenya's Supreme Court judges file into the chamber during the opening of parliament. </span> <span class="attribution"><span class="source">Reuters/Noor Khamis</span></span></figcaption></figure><p><em>This article is a foundation essay. These are longer than usual and take a wider look at a key issue affecting society.</em></p>
<hr>
<p>The second half of the 20th century witnessed a substantial shift in patterns of national governance. This happened among developed nations as well as those which achieved independence as imperial powers withdrew from Africa, Asia and the Caribbean.</p>
<p>The foundational principle of limited government under law, expressed through a written constitution containing a list of fundamental protected rights, was the theoretical basis of almost all such constitutions. This trend gathered pace in the 1990s. Then many states in central and eastern Europe, subjugated under Soviet hegemony, threw off that yoke. They eagerly embraced governance under a constitutional democracy. A rash of constitution-writing along these lines broke out in many parts of the world.</p>
<p>A consequence of endorsing the rule of law and protected fundamental rights in a constitution is that the political profile of the judicial branch of government is raised. This is because it becomes the final arbiter of the meaning of constitutional provisions. It is also the guardian of the values enshrined in the national constitution which it upholds. </p>
<p>The exercise of judicial authority is questioned by the legislature and executive, and often also in the popular mind. Thus the process of appointing judges becomes politicised and contested terrain.</p>
<p>The electorate and those involved in public governance ought to focus more deeply on this exercise. They need to do so to ensure that the highest quality of individual is appointed to the bench in terms of knowledge, outlook and independence of mind. It is also to advance the openness and accountability of this process.</p>
<h2>The ‘third way’</h2>
<p>Judicial appointments matter greatly. The US is expecting to see a stand-off between the president and Congress over who should be appointed to the Supreme Court following the unexpected death of <a href="http://www.huffingtonpost.com/bianna-golodryga/scalias-death-spurs-ideol_b_9410110.html">justice Antonin Scalia</a>.</p>
<p>In the UK and its former colonies, including South Africa until 1994, the norm was a government minister to deliver a “tap on the shoulder” to prospective judges.</p>
<p>In contrast to the inevitably confrontational American processes, or the closed fraternal nature of appointments in the UK, a “third way” has been set out for the appointment of judges. </p>
<p>Known as the <a href="http://www.biicl.org/bingham-centre/projects/capetownprinciples">Cape Town Principles</a>, they entrust the task to an independent commission with a broad membership in which judges themselves, and the legal profession, also have a say.</p>
<p>Such bodies, most often called Judicial Service Commissions (JSC) or Judicial Appointment Commissions (JAC), have become the most popular mechanism by which senior judges are appointed in <a href="http://libguides.ials.sas.ac.uk/commonwealth">Commonwealth jurisdictions</a>. By 2015, more than 80% of Commonwealth member states had <a href="http://www.biicl.org/bingham-centre/projects/commonwealthcompendium">established such bodies</a>.</p>
<p>The working group which generated the Cape Town Principles included experts from South Africa, the UK, Nigeria, Malaysia, Kenya and Canada. These included national experts on judicial appointments who provided insights from their domestic systems.</p>
<p>The team in Cape Town worked in close collaboration with the <a href="http://binghamcentre.biicl.org/">Bingham Centre for the Rule of Law</a> in London. </p>
<p>Justice Kate O’Regan, who served a 15-year term on the Constitutional Court of South Africa from 1994 and participated in the project, <a href="http://www.biicl.org/documents/868_cape_town_principles_-_february_2016.pdf">said</a>:</p>
<blockquote>
<p>Appointing independent, competent and trusted judges is central to ensuring the rule of law in a democracy. The last few decades have seen the establishment of judicial appointment committees in many Commonwealth countries that have diminished the power of the executive over the appointment of judges. The Cape Town Principles provide welcome guidance on the processes and principles that should inform the work of these committees. These should in turn contribute to the enhancement of the rule of law and independence of the judiciary across the Commonwealth.</p>
</blockquote>
<p>Sir Jeffrey Jowell, QC, founding director of the Bingham Centre for the Rule of Law and also a participant, <a href="http://www.biicl.org/documents/868_cape_town_principles_-_february_2016.pdf">said</a>:</p>
<blockquote>
<p>These principles provide a sorely needed guide to the role of judicial appointment commissions, their composition, and their proper procedures – all in the interest of a judiciary that is legitimate, competent and wholly independent.</p>
</blockquote>
<h2>More than a set of principles</h2>
<p>Establishing an independent commission to select judges is an important first step. But, as the Cape Town Principles explain, more needs to be done to ensure that the commission’s criteria and process will do the best they can, in the circumstances of a particular society, to recruit judges who are independent, competent and worthy of public confidence in their role as guardians of the rule of law.</p>
<p>The experts who drew up the Cape Town Principles were each asked to reflect on the experiences of a different Commonwealth jurisdiction where a JSC or JAC had been established in recent years. These were:</p>
<ul>
<li><p>Canada, where judicial selection committees have been in use since the 1980s;</p></li>
<li><p>South Africa, which has had a Judicial Service Commission since the end of apartheid in 1994;</p></li>
<li><p>Nigeria, where the 1999 civilian constitution established judicial selection bodies on which judges themselves form a majority;</p></li>
<li><p>England and Wales, where the Judicial Appointments Commission was established by the Constitutional Reform Act 2005;</p></li>
<li><p>Malaysia, where a public enquiry into influence peddling in judicial appointments led to the establishment of a Judicial Appointments Commission in 2009; and</p></li>
<li><p>Kenya, where a Judicial Service Commission is at the heart of a raft of measures in the post-conflict constitution of 2010 to reform the judiciary.</p></li>
</ul>
<h2>What the principles cover</h2>
<p>Among the matters addressed in the principles are:</p>
<p>1) The need for an appointment mechanism which contributes to public confidence in the judiciary. It also allows steps to be taken to redress the effects of both past and present forms of discrimination relating to judicial office.</p>
<p>2) The importance of avoiding direct or indirect dominance of the membership of the commission by the executive, legislature or political parties. Also, the inclusion of the valuable perspectives of judges themselves and of the practising legal profession.</p>
<p>3) A selection process designed to elicit evidence of a candidate’s capacity to satisfy the published criteria. This includes, for example, the use of skills tests, samples of written work, references and consultation with identified third parties.</p>
<p>4) The desirability of conducting interviews with shortlisted candidates while taking measures to ensure that questioning remains relevant, fair and non-discriminatory.</p>
<p>5) The importance of ensuring that where the formal act of appointment is entrusted to another body, such as a head of state, it should be in accordance with the commission’s recommendations.</p>
<p>6) The value of a commission being held accountable. This is for its general performance – at least on an annual basis – and through the provision of feedback to individuals. Where feasible, the possibility of recourse to an ombudsman, and in any event to judicial review.</p>
<h2>Not a one-size-fits all</h2>
<p>The Cape Town Principles are not intended to provide a one-size-fits-all blueprint for a commission to appoint judges. They allow for the differences between legal systems and societies.</p>
<p>But they do reflect the view that Commonwealth countries have had good reason to establish independent commissions at the heart of their judicial appointment systems. And focusing on the criteria and processes used by commissions is a promising avenue for strengthening the independence of the judiciary and the rule of law.</p>
<p>There can be no doubt that properly open and accountable methods of appointing superior court judges are good for constitutional democracies and those who live in such systems. The Cape Town Principles provide a valuable set of guidelines for achieving these aims.</p><img src="https://counter.theconversation.com/content/56090/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Corder receives funding from
The Claude Leon Foundation (South Africa), which funded the research which preceded the formulation of , and the workshop which generated, the Cape Town Principles.
I am a member of the Council for the Advancement of the South African Constitution (CASAC), and a Director of Freedom under Law, both non-profit NGOs concerned with promoting the rule of law and the South African Constitution.</span></em></p>The electorate and those involved in public governance should focus more on how judges are appointed. This is because they need to make sure that individuals of the highest quality get the job.Hugh Corder, Professor of Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/550102016-02-26T11:07:31Z2016-02-26T11:07:31ZFilling the Supreme Court vacancy: lessons from 1968<figure><img src="https://images.theconversation.com/files/112754/original/image-20160224-16455-kxkj5e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Who will join their ranks now -- and when? </span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Supreme_Court_US_2010.jpg">Steve Petteway/SCOTUS</a></span></figcaption></figure><p>United States Supreme Court Associate Justice Antonin Scalia’s death this month has created something of a dilemma – to put it politely – for the president and Congress. </p>
<p>Supreme Court vacancies are challenging to fill at the best of times, but an unexpected vacancy in the final year of a president’s term is especially tricky. And then add to that the particularly contentious relationship between the nation’s two major parties. </p>
<p>The clearest sign of that came this week, when Senate Majority Leader Mitch McConnell of Kentucky <a href="http://www.nytimes.com/2016/02/24/us/politics/supreme-court-nomination-obama.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news">announced</a> that the Senate would not consider any nomination made prior to the presidential election in November. </p>
<p>History offers a guide here, not just about what not to do but also about what might actually work. </p>
<h2>The year was 1968</h2>
<p>Some cite the seat that ultimately went to Anthony Kennedy in 1988 as the last time a president found himself asked to fill a vacancy during his last year in office. But that vacancy actually occurred in 1987, giving President Reagan and the Senate more time to work out a solution. </p>
<p>In fact, the last time the whole process took place during a president’s final year in office was in 1968, and it is a cautionary tale in more than one respect.</p>
<p>As GOP presidential candidate Richard Nixon gained ever more momentum in the spring of that year, then-Chief Justice Earl Warren began thinking about retiring from the court, so as to give President Lyndon Johnson the chance to replace him. </p>
<p><a href="http://www.amazon.com/Super-Chief-Supreme-Judicial-Biography/dp/0814778267">Warren’s motives</a> here were both <a href="http://www.amazon.com/Arthur-J-Goldberg-Deal-Liberal/dp/0195071050">personal and political</a>.</p>
<p><a href="http://www.alibris.com/search/books/isbn/9780805018349">He and Nixon had clashed</a> back in 1952, when then-Governor Warren of California sought the GOP presidential nomination, and then-Senator Nixon worked actively to undermine Warren’s support in the California GOP delegation. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/112752/original/image-20160224-29156-1axbl5c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/112752/original/image-20160224-29156-1axbl5c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=748&fit=crop&dpr=1 600w, https://images.theconversation.com/files/112752/original/image-20160224-29156-1axbl5c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=748&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/112752/original/image-20160224-29156-1axbl5c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=748&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/112752/original/image-20160224-29156-1axbl5c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=940&fit=crop&dpr=1 754w, https://images.theconversation.com/files/112752/original/image-20160224-29156-1axbl5c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=940&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/112752/original/image-20160224-29156-1axbl5c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=940&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Earl Warren, Supreme Court Chief Justice (1953-1969).</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Earl_Warren#/media/File:Earl_Warren.jpg">Harris & Ewing, Harvard Law School</a></span>
</figcaption>
</figure>
<p>Warren by then <a href="http://www.amazon.com/Super-Chief-Supreme-Judicial-Biography/dp/0814778267">had come to see</a> Nixon, as so many others did, as a devious opportunist with character flaws so serious as to make him a poor candidate for higher office. </p>
<p>Warren was also alarmed by <a href="http://cup.columbia.edu/book/law-and-order/9780231115131">Nixon’s attacks</a> in 1968 on the Warren Court as being insufficiently protective of “law and order.” He was also perturbed by Nixon’s pledge to appoint justices to the court who would overturn Warren Court rulings that strengthened protections for criminal suspects and defendants. </p>
<p>Warren, who turned 77 in March 1968, thought he was unlikely to outlive a Nixon presidency (he didn’t), and so wanted to deny Nixon the chance to name Warren’s successor for all of these reasons.</p>
<p>When the Democrats’ most promising candidate to oppose Nixon, New York Senator Robert Kennedy, was killed on June 4, leaving Nixon with a clear path to victory in the fall, Warren decided to go through with his plan. </p>
<h2>Warren and Johnson against Nixon</h2>
<p>On June 13, 1968, Warren went to see Johnson and informed him that as soon as a successor was confirmed by the Senate, Warren would retire. </p>
<p>Johnson, motivated by the same desire to deny Nixon and the Republicans the sort of “law and order” justice that they wanted, <a href="http://yalebooks.com/book/9780300046694/abe-fortas">promptly nominated his old friend </a>and aide Abe Fortas, who was then serving as an associate justice, as chief justice. (To fill the seat Fortas would be vacating, Johnson nominated another Texas crony, former Congressman Homer Thornberry.) </p>
<p>The result was a complete fiasco. </p>
<p>The Republicans, though in the minority in the Senate then, rallied to oppose what they saw as a blatantly political scheme to deny Nixon the kind of choice he favored should he be elected.</p>
<p>Conservative Southern Democrats agreed, and by joining forces with the Republicans in the Senate, succeeded in <a href="http://yalebooks.com/book/9780300046694/abe-fortas">blocking Fortas’ nomination.</a> </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/112755/original/image-20160224-16464-k4h5gb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/112755/original/image-20160224-16464-k4h5gb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/112755/original/image-20160224-16464-k4h5gb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/112755/original/image-20160224-16464-k4h5gb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/112755/original/image-20160224-16464-k4h5gb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=498&fit=crop&dpr=1 754w, https://images.theconversation.com/files/112755/original/image-20160224-16464-k4h5gb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=498&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/112755/original/image-20160224-16464-k4h5gb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=498&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">LBJ and Abe Fortas confer in the Oval Office in July 1968.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:LBJ_and_Abe_Fortas.jpg">Yoichi Okamoto</a></span>
</figcaption>
</figure>
<p>And by subjecting Fortas to a round of highly contentious confirmation hearings, Johnson also made matters even worse from his perspective. When it <a href="http://www.senate.gov/artandhistory/history/minute/Filibuster_Derails_Supreme_Court_Appointment.htm">emerged</a> that Fortas had accepted a “privately funded offer to teach at American University,” support for his appointment evaporated. Johnson withdrew the nomination, and eventually Fortas resigned from the court in May 1969, thereby giving Nixon not one but two early appointments to the court.</p>
<p>The clear lesson of the Fortas fiasco was not to pick a nominee of the sort that the opposition party and its presidential candidate would strongly oppose.</p>
<p>That’s even more true today, because the movement of conservative white Southerners into the Republican Party since 1968 has led to an outright GOP Senate majority, which was not true in 1968.</p>
<h2>And now in 2016…</h2>
<p>Now the Republicans have formal control over the Senate Judiciary Committee, which vets Supreme Court nominees, and over the larger Senate itself, the body that must confirm them. They are, in other words, in an even better position to block a nominee to whom they object than they were in 1968.</p>
<p>The clearest sign that they intend to try is the recent, unprecedented announcement that the GOP leadership in the Senate won’t permit anyone to be considered until after the presidential election. Thus, unless something dramatic and unexpected happens to change the terms of partisan debate on this issue, no nomination can be approved this year.</p>
<p>All of this suggests that President Obama, if he wants to have any hope of getting a nominee confirmed before the November election, should pick someone acceptable to a majority of the Senate Republicans. </p>
<p>If Obama did that, the principal rationale for GOP obstructionism in the Senate would disappear. Sticking with their refusal even to consider such a nominee might result in so much public outcry as to persuade the Senate Republican leadership to change course.</p>
<p>The most likely approach would be to choose someone from the U.S. Courts of Appeals (or from a state Supreme Court) who was a Republican appointee to that post.</p>
<p>This choice would have to be, however, also acceptable to Senate Democrats. Thus, such a nominee would also have to possess a centrist and uncontroversial record as a judge.</p>
<p>There must, I would warrant, be people like that on the bench. I certainly hope that the responsible people involved in this process are looking at them.</p><img src="https://counter.theconversation.com/content/55010/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Stebenne does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The last time a president nominated a Supreme Court justice during his last year in office was in the tumultuous year of 1968. It didn’t go well.David Stebenne, Professor of History and Law Faculty, The Ohio State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/552112016-02-24T11:09:08Z2016-02-24T11:09:08ZFormer clerk on Justice Antonin Scalia and his impact on the Supreme Court<p>I was in Washington, D.C., over the weekend to attend memorial services for my old boss, Justice Antonin Scalia. </p>
<p>As one of his former clerks – 15 years ago now – I met his casket on the steps of the Supreme Court on a <a href="http://www.nytimes.com/2016/02/20/us/politics/justice-antonin-scalia-to-be-honored-at-supreme-court.html">chilly Friday morning</a> and witnessed thousands of people standing in line for three hours or more to get a brief glimpse of the casket inside. <a href="http://www.nytimes.com/2016/02/21/us/politics/justice-antonin-scalias-funeral-lets-washington-pause-in-praise.html">On Saturday</a>, I saw thousands more pile into the Basilica of the National Shrine of the Immaculate Conception for his two-hour memorial mass.</p>
<p>All weekend long, I was reminded of the justice’s charm, his humor and his razor-sharp intellect. When with the justice, there was never a dull moment.</p>
<p>But more than anything, the weekend reminded me of something else: the justice was not just a judge; he was the leader of a successful movement – and that movement, in my view, will continue long after his death.</p>
<h2>Keeping judges in check</h2>
<p>Justice Scalia sought to persuade us that unelected judges in a democracy should keep their lawmaking to a minimum. And he thought his philosophies of originalism and textualism were the best ways to determine when judges strayed too far.</p>
<p>Both originalism and textualism instruct judges to interpret the law as people at the time the law was written would have understood its words, not to “update” the words by trying to figure out what people today would want the law to say. Justice Scalia thought we already had a mechanism to update our laws: the democratic process. He thought judicial “updating” too often enabled unelected judges to substitute their own policy preferences for those of the American people.</p>
<p>Justice Scalia did not invent these philosophies, nor was he the first to recognize the uneasy place of unelected judges in a democracy. But he was by far the most powerful spokesman these ideas have ever enjoyed.</p>
<p>The key to Scalia’s success was that he was only one part judge. He was also one part legal philosopher and one part activist – an activist against judicial activism. </p>
<p>He wrote articles, authored <a href="http://www.amazon.com/Antonin-Scalia/e/B001I9N9XW">books</a> and delivered speeches all designed to reach as many people as possible. His writing style was accessible and provocative – for some, <a href="http://www.politico.com/story/2016/02/best-antonin-scalia-quotes-219274">too provocative</a> – because he wanted to attract attention to his ideas. He even wrote his opinions like speeches, which is why he liked to read them aloud as he crafted them.</p>
<p>It is true that Justice Scalia was not on the winning side in many of the court’s biggest cases, and he never converted many of his colleagues to his philosophies. But movements are about something bigger than winning a handful of cases today; movements are about the long run. And Justice Scalia may have forever changed how the judiciary, the academy and even the public think about the law.</p>
<h2>Three spheres of influence</h2>
<p>Consider first the judiciary. Scholars have found that judges – even those who do not subscribe to Scalia’s philosophies – started doing their jobs differently after he joined the court in 1986. For example, over the last 30 years judges have more often cited in their opinions textualist and originalist materials such as <a href="http://www.yalelawjournal.org/article/supreme-court-and-circuit-court-dictionary-use">dictionaries</a> and the <a href="http://thomas.loc.gov/home/histdox/fedpapers.html">Federalist Papers</a> and less often competing materials such as <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896746">legislative history</a>. As Professor Frank Cross found in a <a href="http://www.journals.uchicago.edu/doi/abs/10.1086/659986">study</a> of lower court judges: “the most striking result is the extremely high rate of citations to Justice Scalia’s opinions.”</p>
<p>Consider next the academy. To be sure, originalists and textualists are still a small minority in the academy, but the appeal is growing. There are now two academic centers – one at <a href="https://www.law.georgetown.edu/academics/centers-institutes/constitution/">Georgetown</a> and one at the <a href="https://www.sandiego.edu/law/centers/csco/">University of San Diego</a> – devoted entirely to the study of originalism. And the growth has been nonpartisan. So-called “new originalist” scholars are now using Scalia’s philosophies toward liberal ends.</p>
<p>Consider finally the public. Scalia’s philosophies are so easy to explain and understand that, now, when conservative politicians are asked what kind of judges they will appoint to the bench, they almost always say only originalists and textualists <a href="http://abcnews.go.com/TheLaw/BushLegacy/story?id=6597342&page=1">“like Justice Scalia and Justice Thomas.”</a> Liberal politicians tend to avoid invoking interpretive philosophy altogether, and, instead, focus on case outcomes. Thus, to the extent the public is exposed to any legal philosophy at all, it is usually originalism and textualism.</p>
<p>Some people have wondered whether Scalia’s influence will continue after his death. In my opinion, it will. Not only do his ideas have simplicity and elegance, but Scalia left behind a secret weapon: an entire organization dedicated to furthering his philosophies. This organization, the <a href="http://www.fed-soc.org/">Federalist Society</a>, was cofounded by Scalia himself while he was still a law professor at the University of Chicago, and its members now number in the tens of thousands – including me. Perhaps even more than his books, speeches, articles and opinions, his Federalist Society will ensure that his legacy continues in perpetuity.</p>
<p>No other justice of the Supreme Court has ever before left behind an entire organization dedicated to his or her ideas. But, then again, no other justice has ever been like Justice Scalia.</p><img src="https://counter.theconversation.com/content/55211/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brian Fitzpatrick is a member of the Federalist Society.</span></em></p>Scalia’s legacy as an activist against judicial activism will be long-lived.Brian Fitzpatrick, Professor of Law, Vanderbilt UniversityLicensed as Creative Commons – attribution, no derivatives.