Each justice has an incremental effect, but no appointment swings the entire court. Roberts for Rehnquist was probably a wash, but Alito for O'Connor replaced a center-right Justice with a reliable conservative vote.

That said, the Court can still produce decent results sometimes. I happen to think the Vermont campaign finance decision, for all the splintering, makes sense. Expenditure limits are unconstitutional because they prohibit candidates from speaking; contribution limits are OK, but only if they are not so low that the inhibit the protected expenditures.

The confrontation clause cases are OK, in that they create a broader right for defendants to cross-examine accusers, while still allowing excited utterances such as 911 calls in. (I probably would have gone the other way on 911 calls, but at least this doctrine is significantly broader than it used to be.)

And today's Scalia opinion on the right to counsel is actually some of his best work-- joining with the liberals in a 5-4 decision to protect the right of defendants to choose their own lawyers, over Alito's dissent.

On the other hand, the death penalty and knock and announce cases are terrible.

This is the problem with evaluating the Supreme Court. It's somewhat more conservative. But until it issues a blockbuster ruling, nobody cares.

 You can tear down a brick wall just as surely by removing one brick at a time as by using a bulldozer to remove it all at once.  That is what we face now, with this court - one little brick at a time.

Hoppy in Sacramento

Okay, stupid question time.  What particular rulings prompted this pessimistic post and commentary?  Or in other words, what have I missed?  

PSA: There is a Users' Help Forum.

I agree, giving money to somebody is not the same as speaking. Hence contribution limits, as long as they are not ridiculously low, are constitutional. The Vermont case decided yesterday reaffirms that.

But expenditures are not the same thing. An expenditure is where a candidate spends money in support of his or her own campaign. Spending your own money on advertisements and promotion is speech-- there's no First Amendment difference between placing an ad in the paper saying "you should care about global warming" and placing an ad that says "vote for me because I care about global warming". Both are speech.

So that's the wisdom of Buckley v. Valeo. When you are spending money on others, you are contributing, and that can be regulated. But when you are spending money to elect yourself, you aren't contributing, you are speaking.

Reed,

A nice opinionated post but would you care to provide some quantitative evidence to back your predictably dour outlook...

I have to say, having met Clarence Thomas recently, that he's actually disturbingly likeable. And trust me- I REALLY wanted to hate him.

It's pretty much useless to rail against the justices. They are what they are. The fight has got to be 1) get a decent guy (appointer) in the white house- not just for the justices, but to protect ALL executive agencies, and 2) get a decent legislature to overrule neo-conservatist rulings on statutory grounds.

And it really hasn't been all bad- at least not as bad as it could have been. Statutes have to be written within Consitutional mandates. The fact is that they're often not because of lazy legislating. In this day and age, maybe a contrarian court isn't the worst thing. Keeps everybody on their toes.

Rather unhelpful. For instance, TPM Cafe itself had a post supportive of a ruling. Are you saying the 911 call cases were unprincipled and illogical? I'm with DE on the campaign funding case ... one written by Justice Breyer (well the plurality). The "old" Court (Scalia and the libs) protected the right to choose a lawyer of one's choice on Monday.

There were some trouble spots, like the DP case and the knock/announce ruling, but it would be helpful to include some detail with your cries of woe.

I don't get the comment. The Supreme Court is criticized for not having a "common vision." They're not supposed to have a vision. They're supposed to decide the cases before them correctly

Don't want to be the skunk at the party but isn't the Supreme Court itself the final arbiter as to what is "correct"?

Sure, in the sense that a baseball umpire is the final arbiter or whether a pitch is a ball or strike. That doesn't mean those of us on sitting on the couch at home can't watch the instant replay and come to a different conclusion!

And of course, there's that checks and balances thing. There's always a chance the Constitution could be amended which effectively alters the Court's final decision. Plus the court itself sometimes reverses its own precedent.

OK, so your position is that the government can absolutely ban people from spending any money on advertising that discusses political issues? The government may prohibit me from placing an ad in the newspaper or on television, or buying a billboard, or hiring someone to pass out leaflets on a sidewalk?

Or is it only for advertising that advocates an election of a candidate? So I can run for Congress and buy an ad that says "do something about global warming", but if I place a similar ad that says "vote for me and I will do something about global warming", the government can ban it?

The problem is, spending money is a necessary component of speaking. In order to place an advertisement, you have to spend money. You also have to spend money to hire leafletters and print leaflets, to drive a sound truck, rent a microphone and loudspeakers, to purchase a megaphone, etc. All methods of communication to any more than a nominal number of people cost money.

Banning the expenditure is the same as banning the speech. Indeed, if expenditure limits are constitutional, it would suggest that the central intended purpose of the speech and press clauses of the First Amendment-- to prevent licensing of the press-- could have been circumvented just by requiring a license to spend MONEY on printing equipment.

I'm sorry, but one of the first things you learn when you give any thought to constitutional law is that not everything you'd like to do is constitutional. I understand the impulse to control political spending. But the contribution / expenditures divide set up by Buckley ensures that the government can't circumvent the First Amendment by placing limits on the spending of money to facilitate speech rather than limiting the speech directly.

They're not supposed to have a vision. They're supposed to decide the cases before them correctly

Agree that there should not be a common vision. One of the reasons for lifetime appointments was that over time various Presidents would appoint justices so it was likely that we would get divergent views.

 In my opinion, until the Supreme Court reverses itself and rules that corporations and other organizations are not persons, there can be no constitutional limitations on campaign spending.  Spending money to further a cause, whether that cause is the election of John Doe, or the passage of a law prohibiting flag burning, is a form of speech, just as broadcasting, publishing, blogging, sign bearing, demonstrating, etc. are forms of speech.  The first amendment prohibits laws restraining speech.

All of the misguided, in my opinion, efforts to pass campaign finance limitation laws should, instead, be spent on obtaining a Constitutional Amendment that limits the entire electoral process to registered voters.  That would limit campaigning, donating to campaigns, working on campaigns, signing petitions involving campaigns, and voting to registered voters.  Corporations cannot register to vote, therefore would be prohibitted from contributing anything at all politically. 

Hoppy in Sacramento