Jeffrey Toobin’s new book of historical gossip about the Supreme Court is out, and a very good read. I’ve only made it through the first few chapters (reading last night at the park while Owen ran around with his soccer team, the Jaguars). Two things, only one of which is important.
First, President Obama’s views on the Constitution and the federal judiciary are important, especially to those of us Indians who think it’s important to have an Indian or two on the federal bench. He’s not an activist. The Warren Court and the first half of the Burger Court were activist courts for the liberals, and the second half of the Burger Court, bits and pieces of the Rehnquist Court, and now the Roberts Courts were (are) activist courts for the conservatives. Toobin shows how Obama’s views of the Supreme Court and the federal judiciary differ from many conservative judges and justices (I’m not sure I buy Toobin’s all-in argument that the Chief Justice is an activist — much of this book was written before the ACA cases). True social change cannot come from on high, dictated by the courts, but instead through legislation and governing (i.e., winning elections). Sam Deloria’s been saying this for years. The real fights in the 1960 and 1970s over the very existence of federal Indian law have given way to the fights over how to govern. All too often, I suspect (and perceived from some of my clients), tribal leaders think the best way to govern is to demand more and more sovereignty from the courts. It probably doesn’t happen a lot, but it does happen.
Obama’s views on the constitution and the federal judiciary earn him a lot of heat from the left, who want him to do what the Reagan/Bush presidencies did — pack the judiciary with like-minded people. While I do hope he fills some judicial seats (and finally succeeds in getting some Indians in there) in the next term, Indian country better not expect a bunch of liberal acitivist judges. Even if he could get them through the Senate (he can’t, the filibuster will prevent that), he wouldn’t appoint them. Everyone lining up to put their name on a judicial appointments list of eligible American Indians should think about that before they talk to their Senators or whomever.
Second, and less important, more evidence about how the Supreme Court’s clerks think about Indian law. On page 54, Toobin repeats what everyone knows — the clerks think of Indian law cases as “dogs.” I guess it’s an improvement from when Justice Brennan called the Indian cases “chickenshit” in The Brethren. This is another good opportunity to remind tribal leaders that the Court just isn’t interested in Indian issues. The Court largely believes its obligations in Indian affairs are to make sure that tribal governance doesn’t unduly affect nonmembers and to make sure Interior doesn’t go too far in supporting tribal interests.
From WSJ (via How Appealing):
U.S. President-elect Barack Obama is expected to have a speedy and significant impact on a number of federal courts of appeal, with the potential to lessen the conservative influence that several of these courts now wield.
Given significant vacancies in some the nation’s 13 federal appellate courts, Mr. Obama’s appointments may shape the ways laws are interpreted across the country. “He really has an enormous opportunity,” said Carl Tobias, a law professor at the University of Richmond in Virginia and expert on the federal judiciary. “At least initially, I don’t see him having much trouble getting his seats filled.”
Today’s WaPo article on the possibility that President Obama’s judicial appointments to the federal courts of appeal might reshape much of American law raises a few interesting questions, perhaps ones that can be empirically assessed over the course of his administration.
According to the article, 56 percent of the current federal court of appeals judges were appointed by Republican presidents, and Obama could flip that. But the Supreme Court’s current conservative bent is unlikely to change much during his term, even if it stretches two terms.
My hypothesis is that the Roberts Court, assuming more and more appellate court decisions are “liberal,” will grant cert in more and more cases to counteract the trend. The Ninth Circuit, which is still a majority Democrat appointed bench, is the circuit most reversed by the Court right now.
I think there must be a relation to the general conservatism of the lower courts and the lack of cases in which the Roberts Court grants cert. It might only be 10-15 cases a year, but that’s still pretty significant.