Notes on the UCILAW Debate: The Supreme Court and the 2016 Elections

This debate on 2/22/16 was between Ed Whelan of the Ethics and Public Policy Center, and UCI Law Professor Rick Hasen. The hour long debate is already on YouTube.

I am not a justice, a lawyer, or a law student, so this is what I thought was interesting as a commoner.

This debate was preplanned before the passing of Justice Scalia.

Before the debate, I saw in my Sunday OC Register that six Supreme Court Justices had been nominated and confirmed in a presidential election year since 1900. But Lyndon Johnson’s nomination of Abe Fortas in the election year 1968 was not confirmed. The latest confirmation was Ronald Reagan nominating Anthony Kennedy in 1988. The article also showed that Justice Ruth Bader Ginsburg is now 82, Justice Anthony Kennedy is now 79, and Justice Stephen Breyer is now 77.

Ed Whelan had clerked for Justice Scalia in 1991-92.

Nobody seemed to think that the Senate would confirm President Obama’s nominee. Prof. Hasen brought up the question of whether this would play a role in the Republican’s possibly losing control of the Senate.

The cases before the present court would either be:

  1.  Held over;
  2. In the case of a 4-4 tie, have the previous decision of the appeals court take effect; or
  3. Result in just a technical, limited ruling, not a general one.

The issue of Judicial Activism was discussed at to whether it overturned the democratic process of making legislation. A key case in this was Roe vs. Wade legalizing abortion.

Prof. Hasen said that the label “Judicial Activism” was not helpful. The court should signal a few years ahead if it going to overturn legislation. He also discussed “Reaching Out Doctrine” which expands the reach of a case in its ruling, as in the Citizens United corporation case.

Prof. Hasen said that Justices Scalia and Thomas were the only Originalists on the court.

Ed Whelan said that Justice Kennedy had a grandiose notion of judicial power.

Prof. Hasen said that the court should be more communicative to the public, and use less legal jargon. In the emergency cases called the Shadow Docket, the justices do not even explain their actions. The Supreme Court hearings should be televised, as the Congress does its sessions.

Ed Whelan said that the court is not infallible, over a discussion whether the court’s decisions were final.

Prof. Hasen said that the lifelong tenure was a bad idea, and that justices should serve 18 year terms, with a new justice rotated in every two years. All of the appointments are now political appointments. Changing the Constitution is very difficult, requiring approval of 2/3 of the Congress, and ¾ of the States. This makes it difficult for the public to change the finality of a court ruling.

Ed Whelan pointed out that 2/3 of the States can get Congress to call a convention to change the Constitution.

Prof. Hasen said that the public opinion of the court has been declining. All judges appointed by Democrats were liberal, and all appointed by Republicans are conservative.

Ed Whelan said that all Law Schools teach that law is political.

Prof. Hasen said that if Hillary Clinton becomes President, the Senate will kill the filibuster for a Supreme Court appointment.

All of the mixups between my notes and what was actually said in the debate are my fault.

 

About Dennis SILVERMAN

I am a retired Professor of Physics and Astronomy at U C Irvine. For two decades I have been active in learning about energy and the environment, and in reporting on those topics for a decade. For the last four years I have added science policy. Lately, I have been reporting on the Covid-19 pandemic of our times.
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