The President, the Senate, and the Supreme Court:

Teaching the Politics of Separation of Powers

Joseph F. Kobylka, Altshuler Distinguished Teaching Professor

Associate Professor of Political Science

Prepared for delivery to the APSI,

23 July 2013

The Constitutional Context

The Constitution is a Legal Document, but….

it is an Interpreted Document

The Constitutional- Court Context

… and who interprets it? The Supremes

• “It is emphatically the province and duty of the judicial department to say what the law is.”

• – Chief Justice John Marshall, Marbury v. Madison (1803)

The Constitutional- Court Context

• "We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and our prosperity under the Constitution.“

• - Chief Justice Charles Evans Hughes (1908)

Text, Times, and the Court

Over Time…The text of the Constitution has changed

“We the People” have evolved

Government has become more “democratic”

The Justices interpreting the Constitution have changed

Times and problems have changed

Governmental responses & policy have changed

Interpretational Approaches have changed

Textualism/Intentionalism

“Living Constitution”/Common Law

Text, Times, Issues, and the CourtCriminal Law – capital punishment

Privacy – abortion & gay rights

Freedom of Expression – campaign finance

Church-State – school prayer

Civil Rights – affirmative action & voting rights

National Power – health care, immigration

Presidential Power – war on terror

Second Amendment – firearm regulation

The Nexus

Question: What Influences Changes in Understanding?

Interpretational Approaches Who is on the Court

Answer: Interaction between “Law” and “Politics”

President Senate

President Obama:Political & Legal Selection Criteria In … hard cases, the constitutional text will not be directly on point…. In

those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern… whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart. (statement opposing confirmation of Chief Justice Roberts)

“In examining Judge Alito's many decisions, I have seen extraordinarily consistent support for the powerful against the powerless, for the employer against the employee, for the President against the Congress and the Judiciary, and for an overreaching federal government against individual rights and liberties.” (statement opposing confirmation of Justice Alito)

Republican Presidents (and Candidates) - Political & Legal Selection Criteria

Ronald Reagan (1981-89) “We [will] continue to work to overturn Roe v. Wade.” “the Court ruled wrongly with regard to prayer in public schools….Wasn’t this

a case of the Court going beyond what the Constitution actually says?” “[promote] equal opportunities for all Americans with no barriers born of

bigotry or discrimination.”

“George W. Bush (2001-2009) “I have great respect for Justice Scalia for the strength of his mind, the

consistency of his convictions, and the judicial philosophy he defends.”

Mitt Romney “…will nominate judges in the mold of Chief Justice Roberts and Justices

Scalia, Thomas, and Alito. [These] judges… will exhibit a genuine appreciation for the text, structure, and history of our Constitution and interpret the Constitution and the laws as they are written.”

Text, Times, Issues, and the Court

Because of the role the Supreme Court plays in interpreting what the Constitution means, who is on the Court is crucial to constitutional meaning.

Constructing the Court is a political task:

• President

• Senate

• Context

The Supremes Obama Inherited

The Supremes Obama Inherited

Chief Justice Roberts G. W. Bush (R) 27 January 1955 (58) September 29, 2005 (8) Roman Catholic Indiana Harvard; Harvard Confirmed: 78-22

Justice Stevens

Justice Scalia

Justice Kennedy

Justice Thomas

Justice Ginsburg

Justice Breyer

Justice Alito

Chief Justice Roberts

Justice Stevens G. Ford (R) April 20, 1920 (93) December 19, 1975 (35) Protestant Illinois U. Chicago; Northwestern

Justice Scalia

Justice Kennedy

Justice Thomas

Justice Ginsburg

Justice Breyer

Justice Alito

The Supremes Obama Inherited

The Supremes Obama Inherited

Chief Justice Roberts

Justice Stevens

Justice Scalia R. Reagan March 11, 1936 (77) September 26, 1986 (27) Roman Catholic New Jersey/New York Georgetown; Harvard

Justice Kennedy

Justice Souter

Justice Thomas

Justice Ginsburg

Justice Breyer

Justice Alito

The Supremes Obama Inherited

Chief Justice Roberts

Justice Stevens

Justice Scalia

Justice Kennedy R. Reagan (R) July 23, 1936 (77) February 11, 1988 (25) Roman Catholic California Stanford; Harvard

Justice Souter

Justice Thomas

Justice Ginsburg

Justice Breyer

Justice Alito

The Supremes Obama Inherited

Chief Justice Roberts Justice Stevens Justice Scalia Justice Kennedy

Justice Souter G. H. W. Bush September 17, 1939 (74) October 3, 1990 (18) Episcopalian New Hampshire Harvard; Harvard

Justice Thomas Justice Ginsburg Justice Breyer Justice Alito

The Supremes Obama Inherited

Chief Justice Roberts Justice Stevens Justice Scalia Justice Kennedy Justice Souter

Justice Thomas G. H. W. Bush June 23, 1948 (65) October 23, 1991 (22) Roman Catholic Georgia Holy Cross; Yale

Justice Ginsburg

Justice Breyer

Justice Alito

The Supremes Obama Inherited

Chief Justice Roberts

Justice Stevens

Justice Scalia

Justice Kennedy

Justice Souter

Justice Thomas

Justice Ginsburg W. Clinton March 15, 1933 (80) August 10, 1993 (20) Jewish New York Harvard/Columbia

Justice Breyer

Justice Alito

The Supremes Obama Inherited

Chief Justice Roberts Justice Stevens Justice Scalia Justice Kennedy Justice Souter Justice Thomas Justice Ginsburg

Justice Breyer W. Clinton August 15, 1938 (74) August 3, 1994 (19) Jewish California Stanford; Harvard

Justice Alito

The Supremes Obama Inherited

Chief Justice Roberts Justice Stevens Justice Scalia Justice Kennedy Justice Souter Justice Thomas Justice Ginsburg Justice Breyer

Justice Alito G. W. Bush April 1, 1950 (63) January 31, 2006 (6) Roman Catholic New Jersey Princeton; Yale Confirmed: 58-42

Recall: Text, Times, and Issues

Criminal Law – capital punishment

Privacy – abortion & gay rights

Freedom of Expression – campaign finance

Church-State – school prayer

Civil Rights – affirmative action & voting rights

National Power – health care, immigration

Presidential Power – war on terror

Second Amendment – firearm regulation

Descriptive Statistics: 2005-2008 Terms2005

Cases decided: 69 Cases decided with a 5-vote Majority: 16 (22.9%)

2006 Cases decided: 72 Cases decided with a 5-vote Majority: 24 (33.3%)

2007 Cases decided: 71 Cases decided with a 5-vote Majority: 12 (16.9%)

2008 Cases decided: 74 Cases decided with a 5-vote Majority: 23 (31.1%)

26.2% of all decisions of the “Early” Roberts Court

Were 5-4 or 5-3

The Supremes in 2008: Ideological Spread

Obama’s Opportunities: First Term

The Obama Shaped Supremes Chief Justice Roberts Justice Stevens Justice Scalia Justice Kennedy Justice Thomas Justice Ginsburg Justice Breyer Justice Alito

Justice Sotomayor Barack Obama June 25, 1954 (59) August 8, 2009 (4) Catholic New York Princeton; Yale Confirmed: 67-29

The Obama Shaped Supremes

Chief Justice Roberts

Justice Scalia

Justice Kennedy Justice Thomas Justice Ginsburg Justice Breyer Justice Alito Justice Sotomayor

Justice Kagan Barack Obama April 28, 1960 (53) August 8, 2010 (3) Jewish New York Princeton; Harvard Confirmed: 63-37

The Present “Roberts” Court

Descriptive Statistics: 2009-2012 Terms2009 (Sotomayor)

Cases decided with a 5-vote Majority: 17.8% (15 of 84)

2010 (Kagan) Cases decided with a 5-vote Majority: 20% (16 of 80) or 22% (18 of

82; Kagan not participating; Court divided 4-4)

2011 (stable bench) Cases decided with a 5-vote Majority: 20% (15 of 75)

2012 (stable bench) Cases decided with a 5-vote Majority: 29% (23 of 78)

24.2% of all decisions of the Roberts Court have been by 5-4 or 5-3 votes

Justice Kennedy in the mix:In the majority in 119 of 144 (82.6%) closely divided decisions

Ideological Spacing of the Justices (2012)

Conservative LiberalScalia (Reagan)

Thomas (Bush I)

Roberts (Bush II)

Alito (Bush II)

Ginsburg (Clinton)

Breyer (Clinton)

Sotomayor (Obama)

Kagan (Obama)

Kennedy (Reagan)

a.k.a. “The Constitution”

The Conflictual 2012 Term of the Court

U.S. v. Windsor (2013) “gay marriage” case; 5-4 (ideological division)

Shelby County v. Holder (2013) VRA §4 case; 5-4 (ideological division)

Fisher v. UT (2013) Affirmative action case, 7-1 (strategic)

Florida v. Jardines (2013) Drug sniffing dog; 5-4 (mixed)

Maryland v. King (2013) DNA cheek swabs, 5-4 (mixed)

What are President Obama’s Second Term Prospects to Shape the Court?

It depends… OpportunitiesVacanciesWho retires/leaves

Disposition of the Senate Luck

Potential Obama Nominees

Criteria Constitutional Approach Diversity Age Experience

Judicial Governmental

Opportunities?

The Four Oldest Justices:

Ginsburg (80) Scalia (77)

Kennedy (77) Breyer (74)

The Role (and Relevance) of the Senate

Headliner: President

Back-Up Band: Senate Two Pinch Points

Partisan Control Democrats currently hold 54-46 seat edge Up from 53-47

Senate Rules Cloture Filibuster

The Present Politics of Confirmation

President: Constitutional Vision and Political Constituencies Senate

Traditional: Escalating Trend: Clinton → Bush Republican Hostility to All Things Obama

Note confirmation votes of SS and EK Test runs for “when it counts”

Contextual Political: Battle Among Republicans The Impact of the Tea Party

The “Death” of Compromise The Need to Reassert After Compromise

2014 Mid-Term Elections Primary Politics

Turnout Force Incumbents to the Right or Left

“Lame Duck” President

Obama’s Opportunities?A Potential Political Blood Bath

And… this “Peculiar Institution” that is the Supreme Court

“Ninety Percenters” O’Connor Kennedy

A Case Study of the Potential Effects of Institutional Constraints, Issue Changes, and Life Tenure

“Wayward” Justices Powell Souter

The Uncertainty of Constrained Choices

The President is not Reggie Jackson

TEACHING THE POLITICS OF SEPARATION OF POWERS

The President, the Senate, and the Supreme Court:

Potential Obama NomineesApplying the Criteria (spit-balling names) Sitting Federal Judges

Judge Merrick Garland, D.C. Circuit Judge Mary Murguia, 9th Judge Jacqueline Hong-Ngoc Nguyen, 9th Judge Paul Watford, 9th Judge Diane Wood, 7th

Sitting State Judges Governmental Officials Academics

Potential Obama Nominees

Applying the Criteria (spit-balling names) Sitting Federal Judges Sitting State Judges

Cheri Beasley, NC Yvette McGee Brown, OH Patricia Timmons-Goodson, NC Goodwin Liu, CA

Governmental Officials Academics

Potential Obama NomineesApplying the Criteria (spit-balling names) Sitting Federal Judges Sitting State Judges Governmental Officials

Attorney General Kamala Harris (CA) Gov. Jennifer Granholm (MI) Senator Amy Klobuchar (MN) Attorney General Lisa Madigan (IL) Director of Homeland Security Janet Napolitano White House Counsel Kathryn Ruemmler

Academics

Potential Obama NomineesApplying the Criteria (spit-balling names) Sitting Federal Judges Sitting State Judges Governmental Officials Academics

Heather Gerkin, Yale Pamela Karlan, Stanford Neal Katyal, Georgetown Carol Steiker, Harvard Kathleen Sullivan, Stanford