Saturday, July 02, 2005

the unsexy cases in the Supreme Court

So much of the analysis of Justice O'Connor's retirement, in the news outlets as well as the legal punditry, has to do with the hot-button constitutional cases, and how Justice O'Connor's replacement might well be further to the right than she has been on some such cases. There is, of course, the issue of Roe's future, and the Ten Commandments (on which Justice O'Connor was in the 5-4 majority striking down the Kentucky display, here), and the diversity in higher ed cases of two terms ago -- as well as some others that you can find discussed all over the place.

My frustration with the way that this fight may play out is that those issues may draw too much of the attention -- "too much," I admit, being a value judgment, based on my view that those hot-button cases, important as they are, are not the only important thing that a Supreme Court Justice does, and in many ways are not even the most important thing. Equally or more important, I think, is a Justice's votes on the unsexy cases -- the interpretation of federal statutes and the procedural rules that govern litigation. I am pleased that there has been at least some attention in the news media to the fact that, on many such issues, Justice O'Connor was quite likely to vote in favor of "business" interests -- and that the views of aa nominee on this sort of issue are important as well. See, e.g., here and here.

These unsexy issues -- in particular, issues about a nominee's tendency to vote in one way or the other in cases involving consumer rights, statutory employment rights, and so forth -- could yet end up being quite important if the President nominates Priscilla Owen as Tom Goldstein predicts, or if he nominates Judge Jones from the Fifth Circuit, or former Justice Brown from California. I hope that the President departs from his normal practice of picking fights and nominates someone more moderate than those; but if one of them gets the nod, I do hope that there will be at least as much attention to their patterns of voting in run-of-the-mill statutory cases as to their views on hot-button issues such as abortion.

posted by sam 3:09 PM 0 comments

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