Supreme Court

"What the President wants is a Supreme Court that will stand aside when or if Congress enacts the programs the President favors"

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In a guest post at the Legal History Blog, Harvard law professor Mark Tushnet draws some interesting parallels between President Franklin Roosevelt's Supreme Court strategy during the New Deal and President Barack Obama's recent selection of Elena Kagan:

The basic story is simple. Roosevelt was looking for justices who would uphold the New Deal's major initiatives or, more generally, who held expansive views of the scope of the national government's powers under Article I. He was relatively indifferent to his nominees' views on issues of civil rights and civil liberties, as his nominations of Reed and, later, James Byrnes show….

I mentioned Elena Kagan in this post because my sense—based on no inside information, of course—is that her selection reflects a strategic calculation by President Obama similar to FDR's. What the President wants is a Supreme Court that will stand aside when or if Congress enacts the programs the President favors, and is relatively indifferent to his nominees' views on other questions. Put pretty crudely, SG Kagan hasn't been vetted for her views on what we might call "Warren Court" (or "Brennan-Marshall") issues (other than the scope of national power)—which may be why some on the liberal-left side of the spectrum are nervous about what she would do as a Justice dealing with those issues.

Read the whole thing here. And go here for Nick Gillespie's 2005 interview with Tushnet, where the Harvard professor argued that the Supreme Court matters much less than you think.

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  1. Isn’t that really what they all want anymore?

    1. What the President wants is a Supreme Court that will stand aside when or if Congress enacts the programs the President favors ignore their oath of office to uphold the Constitution and rubberstamp anything progressive Presidents sign.

      Fixed.

    2. What the President wants is a Supreme Court that will stand aside when or if Congress enacts the programs the President favors ignore their oath of office to uphold the Constitution and rubberstamp anything progressive Presidents sign.

      Fixed.

      1. What the any President wants is a Supreme Court that will stand aside when or if Congress enacts the programs the President favors ignore their oath of office to uphold the Constitution and rubberstamp anything progressive Presidents of the same party sign.

        And, this always means an expansion of state power and purview.

        I like this better.

  2. Which is different from every other president how? During the Bush administration, you could have said the same thing, but instead of it being around social programs it would be around national security and executive power.

  3. And you know what? When FDR was able to mold the country to his vision we were taken out of the depression. This isn’t a bad thing when it’s done by a person with the right intellect and I believe President Obama is that person. Though people won’t always agree with his decisions, as evident by, well… : http://lawblog.legalmatch.com/2010/04/06/“the-law-of-the-land”-obama’s-new-health-care-reform-law-sets-off-a-variety-of-responses/ But the fact of the matter is this country will be better for them.

    1. This has gotta be bait, right?

    2. It’s a widely believed fact!

    3. Hehehe!!

      [snork!]

    4. I am the LORD thy God, which brought thee out of the land of Egypt, from the house of bondage.

      Thou shalt have none other gods before me.

      I hope you like warm climates, Chris N.

    5. Do not feed the troll.

    6. Sometimes real people can’t be told apart from spambots.

  4. I agree. If only Obama could be made dictator for a while, he could get good things done.

    1. It works for the Chinese.

      1. Good Times

    2. dictator for a while

      Two, three years, tops. Well, maybe 10. Or 24. And he promises, “these powers you give me, I WILL lay down once the crisis has averted.”

      Wait, I’m getting Obama mixed up with Palpatine, sry.

      1. Two, three years, tops. Well, maybe 10. Or 24. And he promises, “these powers you give me, I WILL lay down once the crisis has averted.”

        Wait, I’m getting Obama mixed up with Palpatine, sry.

        Who was it that proposed giving emergency powers in Attack of the Clones ?

    3. It worked for Venezuela…wait…what?

  5. Right.

  6. You had me at Professor Tushnet.

    1. There is in fact a tush.net

      I had to check.

  7. If you guys didn’t want Barack Obama to choose the next few Supreme Court justices then you shouldn’t have allowed him to be elected.

    1. What the heck is this Barackobama everyone is talking about?

      Is is one of them i-thingabobs all the kids are playing with nowadays. Dangit they come out with these contraptions every week it feels like. And, you know the kids is gonna want one, ‘can’t live without it, dad’, they’ll say.

      Dang, breaks my heart to deny the young’uns, not bein able to give ’em strawberry phones, and barackobamas, when all the other kids got ’em. But, darn if money ain’t tight since I lost my job at the screendoor factory.

      1. Screw barackobamas, you gotta get yourself some Grizzle Bazzles.

        1. Don’t get me started on grizzle bazzles.
          Every new generation thinks they are the first to get into grizzle bazzles. Heck, my pap was tellin’ me about ’em and how had ’em as a kid.

          But, them there newfanglesd ones that the kids all got now are beyond me.

    2. Ingredients
      1 sheep stomach
      1 sheep liver
      1 sheep heart
      1 sheep tongue
      1/2 pound suet, minced
      3 medium onions, minced
      1/2 pound dry oats, toasted
      1 teaspoon kosher salt
      1/2 teaspoon ground black pepper
      1 teaspoon dried ground herbs

      Directions

      Rinse the stomach thoroughly and soak overnight in cold salted water.

      Rinse the liver, heart, and tongue. In a large pot of boiling, salted water, cook these parts over medium heat for 2 hours. Remove and mince. Remove any gristle or skin and discard.

      In a large bowl, combine the minced liver, heart, tongue, suet, onions, and toasted oats. Season with salt, pepper, and dried herbs. Moisten with some of the cooking water so the mixture binds. Remove the stomach from the cold salted water and fill 2/3 with the mixture. Sew or tie the stomach closed. Use a turning fork to pierce the stomach several times. This will prevent the haggis from bursting.

      In a large pot of boiling water, gently place the filled stomach, being careful not to splash. Cook over high heat for 3 hours.

      Serve with mashed potatoes, if you serve it at all.

      1. Ya know, i think i’d actually like haggis if i tried it….except for the oats. Its like putting raisins in salad; i don’t want oatmeal with my innards. Maybe there’s a recipe for a rice variant out there….

        1. I have to say, I’ve never heard someone draw the line at oats.

          “Stomach? Sure. Liver? Great. Heart? Fantastic. Tongue? Perfect. Oats? OATS?!?” [spits in disgust] “Fuck you, dude. Fuck you and the highland sheep you rode in on!” [turns and walks away muttering] “Oats. What kind of freak – I mean, Jesus fucking Christ, oats…”

          1. +1
            +1

            1. Where’s the chutney? How dare ye ser’ me haggis wi’out chutney!

          2. Thank you, Peachy. I have not laughed that hard in a weeks.

            MMM, oats — boil a cup of evaporated milk, two cups of sugar, a cup of peanut butter, a stick of butter, and a dash of salt. Drop a dab in a cup of water every minute, when one sinks to the bottom in a hard cluster, take off the heat, add oats, pour into a plate. Watch one’s ass expand.

            1. hard in a weeks.

              I was fuzzy on the last time I laughed out loud hence the usage error, a month?, nah, my favorite show hasn’t been off the air that long.

  8. Barack seeks to further his agenda via SCOTUS picks? Outrageous!

  9. Maybe they can rule on this:

    White congressional candidate wants to participate in forum, but is told she can’t because she’s not black

    Because Liz Carter is white, she’s banned from debating Democrat Rep. Hank Johnson and the other black candidates running for his Georgia congressional seat at a candidate forum in Atlanta tonight.

    The forum, moderated by Newsmakers Live, is solely for the black Republicans and Democrats running for Johnson’s 4th Congressional District seat, Carter took to the Internet to say.

    Carter, a Republican, expressed her disappointment on Twitter Wednesday, asking, “What happened to diversity?”

    Read more: http://dailycaller.com/2010/06…..ld-she-can‘t-because-she’s-not-black/#ixzz0pjEpSDwq

    1. QUESTIONS ARE COUNTER REVOLUTIONARY!

    2. Damn. And she coulda debated Hank “Guam is gonna tip over” Johnson.

      Too bad the racists are preventing her from participating.

  10. Presidents select Court nominees who agree with them. Gee, that’s profound.

    Roosevelt appointed Stanley Reed to the Court because, of course, he was confident that Reed would uphold New Deal legislation but also because Reed had done the President an enormous favor as Solictor General by winning the Supreme Court case effectively upholding Roosevelt’s actions connected with taking the U.S. off the gold standard. Roosevelt appointed James Byrnes to the Court because Byrnes wanted to be President, and Roosevelt didn’t like competition.* Roosevelt appointed William O. Douglas to the Court for the same reason.

    *Byrnes wanted to be President more than he wanted to be a Supreme Court justice, so he quit.

    1. President an enormous favor as Solictor General by winning the Supreme Court case effectively upholding Roosevelt’s actions connected with taking the U.S. off the gold standard

      Pity we never learn from the mistakes others make in the past.

  11. Presidents select Court nominees who agree with them

    I think GHW Bush disproved that twice.

    1. Republican presidents turn out to be bad at that pretty often. Democrats are noticably better at it.

  12. It could be worse. Imagine if Carter were 20 years younger and wanted to ruin again. Whoops. I meant run again, Freudian slip.

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