Yesterday, I told my students in Election Law that longstanding assumptions about campaign finance regulation might be turned upside down today. That appears to have happened. In a special session, the United States Supreme Court just issued its decision in Citizens United v. FEC, and it has apparently overruled prior cases upholding the use of corporate treasury funds for express advocacy of the election and defeat of candidates. More later.
The New York Times published an article detailing the results of a new study regarding the career paths of former United States Supreme Court clerks. The study finds that “former clerks have started to take jobs that reflect the ideologies of the justices for whom they worked.” The data collected show a shift in the career paths of clerks hired from 1990 and on:
Until about 1990, the study shows, there was no particular correlation between a justice’s ideological leanings and what his or her clerks did with their lives.
Clerks from conservative chambers are now less likely to teach. If they do, they are more likely to join the faculties of conservative and religious law schools. Republican administrations are now much more likely to hire clerks from conservative chambers, and Democratic administrations from liberal ones. Even law firm hiring splits along ideological lines.
It is no secret that the justices have shown a greater propensity to hire clerks that share their ideological beliefs (as the article and previous studies explain). Yet this newest study, which focuses on life post-clerkship, has alarmed those already worried about the strong ideological splits on the Court. Says law professor William Nelson of NYU, “It’s cause for concern mainly because it’s a further piece of evidence of the polarization of the court.”
This is the sixth and final in a series of posts reviewing last term’s criminal cases in the United States Supreme Court and previewing the new term.
When it comes to the constitutional rights of criminal defendants at the Supreme Court, the conventional story of the past half-century goes something like this: Responding to the embarrassing state of criminal justice in the American South in the civil rights era, the activist Warren Court led a revolution in defendants’ rights. The Court held that most of the basic Bill of Rights protections applied to the states, liberally construed the scope of those rights, and adopted new exclusionary rules to enforce the rights. The activism of the Warren Court provoked a popular backlash, however, and a series of Republican presidents succeeded in moving the Court to the right. The Court’s hard-core conservatives have pushed aggressively to overturn landmark Warren Court precedents, while the more moderate conservatives have charted an unpredictable path, caught between their skepticism of the Warren Court agenda and their reluctance to overturn established precedent. Meanwhile, the liberals have been on the defensive for a generation, able to do little more than occasionally preserve the gains of an earlier era.
What is one to make, then, of the twin Sixth Amendment revolutions of the past decade?
Against all expectations, two of the Court’s hard-core conservatives (Scalia and Thomas) joined with a subset of its liberals to expand the Sixth Amendment rights to a jury trial and to confront accusers. Both revolutions overturned settled law and opened many new avenues for defendants to challenge their convictions and sentences.
But now there are good reasons to wonder whether the revolutions are over.