101 Nw. L. Rev. Colloquy 127 (2007)

handle is hein.journals/nulro101 and id is 1 raw text is: 





Copyright 2007 by Northwestern University School of Law                        Vol. 101
Northwestern University Law Review Colloquy






IDEOLOGICAL DRIFT AMONG SUPREME COURT

       JUSTICES: WHO, WHEN, AND HOW

       IMPORTANT?



       Lee Epstein, Andrew D. Martin, Kevin M. Quinn, and Jeffrey A. Segal




                                  INTRODUCTION

     When the U.S. Supreme Court invalidated the Bush administration's
plan to use military commissions to try enemy combatants in Hamdan v.
Rumsfeld,1 the decision fueled more than a national debate over the powers
of the President. It also generated commentary about the ideological com-
position of the Court. Conservatives proclaimed that they were just one
Justice, just one vacancy, away from       victory in Hamdan2 and a handful of
other recent decisions that worked against their interests.3 Liberals worried
about just as much.4



   1 126 S. Ct. 2749 (2006) (link).
   2 The vote in Hamdan was five-to-three. Because he served on the appellate court panel that had
upheld the commissions, Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005) (link), Chief Justice Rob-
erts recused himself. Had he participated, many commentators assume he would have once again sup-
ported the administration. See, e.g., Cass Sunstein, The Court's Stunning Hamdan Decision, NEW
REUBLIC ONLINE, June 30, 2006, http://www.tnr.com/doc.mhtml?i=w060626&s=sunsteinO63006 (link)
(The current Court itself remains badly divided. We should emphasize that Hamdan was decided by a
narrow margin of 5-3, and we should not neglect the fact that Chief Justice Roberts did not participate in
the decision; the reason is that he was part of the three-judge lower court, now reversed, which had ruled
broadly in the president's favor.).
   3 E.g., Kelo v. City of New London, 545 U.S. 469 (2005) (link) (a five-four decision affirming the
taking of property for economic development does not violate the public use restriction of the Fifth
Amendment's Taking Clause); Grutter v. Bollinger, 539 U.S. 306 (2003) (link) (holding that a law
school's use of race in admissions decisions does not violate the Fourteenth Amendment's Equal Protec-
tion Clause); Roper v. Simmons, 543 U.S. 551 (2005) (link) (concluding that the Eighth Amendment
prohibits the imposition of the death penalty for crimes committed when the defendant was under the
age of eighteen).
   4 Commentary on Hamdan and the ideological composition of the Court appears on numerous
blogs. See, e.g., Applied Epistemology, http://appliedepistemology.com (June 29, 2006, 18:37 EST)
(link) (The scary lesson that Hamdan [sic] teaches us is that the only thing currently standing between
American democracy and an executive branch autocracy is John Paul Stevens' bath mat.); Five, Wrong
on   Hamdan,   NAT'L   REV.   ONLINE,  June   30,  2006,  http://article.nationalreview.com/
?q=NzZmOTBhMzF1Y2VIMzI5NjYyNzMzZWV1NTAwNzZhMWM= (link) (The Mystery Five [Jus-
tices] have simply practiced once again the utterly lawless willfulness that they have proclaimed to be
their mission. And they undoubtedly know that they will receive ample cover, in the form of fawning
accolades, from legal academia and the liberal media.).

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