May 5, 2012
Saturday Evening Review: Constitutionalism Beyond SCOTUS
The role of the "lower" federal courts in shaping constitutional doctrine as it is taught and theorized can be under-rated. Many ConLawProfs have strategies to combat SCOTUS-dominance in our classrooms given our understandings about how constitutional law is actually practiced. But often our discussions of "lower court" decisions are refracted through SCOTUS opinions as well as being very doctrinally focused.
In an important new article, Lower Court Constitutionalism: Circuit Court Discretion in a Complex Adaptive System, forthcoming in American University Law Review, available on ssrn, Professor Doni Gewirtzman considers how constitutional law operates at the circuit court level. Gewirtzman argues that circuit courts - - - and indeed, individual judges - - - are parts of an interpretive system where constitutional law is made from both the top-down and from the bottom-up.
Using a "complex adaptive system” model, Gewirtzman considers how courts "balance their need for overall order and stability with demands for evolution and change," relying on both variation (the degree to which the system’s components differ from one another) and interdependence (the degree to which the system’s components affect one another) to manage those competing forces.
In so doing, Gewirtzman has some compelling insights about the circuit courts as "percolators" of constitutional law and some useful discussions of "outlier" judges and circuits. While Gewirtzman does discuss specific examples, the strength of the article is its attempt to provide a theoretical framework that makes constitutionalism in the circuit courts explicable apart from specific doctrine.
It's an article worth reading for any ConLawProf whose teaching and scholarship considers circuit courts - - - and perhaps even more important for ConLawProfs who have become exclusively focused on SCOTUS as the sole arbiter of US constitutional law.
Update Redux: Fifth Circuit Panel Vacates Stay in Texas Planned Parenthood Case
A panel of the Fifth Circuit has vacated Judge Smith's emergency stay of District Judge Lee Yeakel's preliminary injunction against a 2012 Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion.
As the panel in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs stated:
Language in that affidavit reasonably calls into question the State’s declaration of an emergency need for a stay, because it states that any injunction will have the effect of requiring the State to cease operating the program at issue “upon termination of federal funding.” Evidence in the record indicates that such funding is continuing until November 2012.
This supplemental filing undermines the State’s assertion of irreparable harm if the injunction is not stayed pending appeal. Regarding the balance of the merits, we cannot conclude, on the present state of the record, that the State has shown a great likelihood, approaching a near certainty, that the district court abused its discretion in entering the injunction.
Thus, there is no "emergency" and the district judge's injunction stands, as presumably does the district judge's hearing for May 18.
May 4, 2012
KSM Military Commission Arraignment Tomorrow
Khalid Sheikh Mohammed is scheduled to be arraigned tomorrow along with four others in a military commission at Guantanamo Bay. We covered the Convening Authority's referral of terrorism charges here (with a link to the charge sheets).
Chief Prosecutor General Mark Martins told Charlie Savage at the NYT that he's optimistic that the trial will be fair. Benjamin Wittes (Brookings, Lawfare) similarly wrote in yesterday's WaPo that the commission hearings are "nothing like the kangaroo court of human rights groups' caricatures," and that they have "[q]uietly and gradually . . . become a real court."
But military defense attorneys interviewed in Savage's piece don't share this optimism. Savage writes that they say "improvements are exaggerated," and that they intend to ask presiding Judge Colonel James Pohl "to send the capital charges back to the Pentagon for reconsideration because of problems that, they say, have crippled their ability to provide a meaningful defense."
Carol Anne Bond on Remand: Conviction Upheld by Third Circuit
Last June, in an unanimous opinion in Bond v. United States, the United States Supreme Court reversed the Third Circuit and found that Carol Anne Bond had standing to argue that the statute exceeded Congressional power and was inconsistent with the Tenth Amendment.
In an opinion today on remand, the Third Circuit reached the merits and again ruled against Bond. Recall that Bond was convicted for a violation of 18 U.S.C. § 229(a), the Chemical Weapons Convention Implementation Act, enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement that prohibits nation-states from producing, stockpiling, or using chemical weapons. Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband. Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.
Bond urged the Third Circuit to "set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress‟s ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution." Bond argued that "legal trends since the Supreme Court‟s 1920 decision in Holland make it clear that the Tenth Amendment should not be treated as irrelevant when examining the validity of treaty-implementing legislation."
The Third Circuit found that the Chemical Weapons Convention "falls comfortably within the Treaty Power's traditional subject matter limitation" and thus the implementing Act is "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power, unless it somehow goes beyond the Convention." Bond did argue that the Act exceeded the Convention, but the panel found this argument without merit. However, the panel did remark that Bond's prosecution seems a questionable exercise of prosecutorial discretion," stating in footnote 20:
The decision to use the Act – a statute designed to implement a chemical weapons treaty – to deal with a jilted spouse's revenge on her rival is, to be polite, a puzzling use of the federal government's power.
Concurring, Judge Rendell also remarked on the odd "fact pattern":
No one would question a prosecution under the Act if the defendant were a deranged person who scattered potassium dichromate and 10-chloro-10H-phenoxarsine, the chemicals which Ms. Bond used, on the seats of the New York subway cars. While that defendant could be punished under state law, applying the Act there would not offend our sensibilities.
But he added, "The judgment call to prosecute Ms. Bond under a chemical weapons statute rather than allowing state authorities to process the case is one that we question. But we see that every day in drug cases. Perhaps lured by the perception of easier convictions and tougher sentences, prosecutors opt to proceed federally."
Obviously, however, this "puzzling" or pragmatic use of federal law has cost the federal government much time, money, and energy in litigating this case.
Judge Ambro, however, was not so worried about the prosecution of Bond, but wrote separately "to urge the Supreme Court to provide a clarifying explanation of its statement in Missouri v. Holland that “[i]f [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government." This "most important sentence in this most important case about the constitutional law of foreign affairs" can be read as providing a "blank check" to Congress.
[image: colored chemicals via]
May 3, 2012
D.C. Circuit Rejects Guantanamo Detainee Habeas Claim
A three-judge panel of the D.C. Circuit today reissued a ruling rejecting the habeas claim of a detainee at Guantanamo Bay. The case, Alsabri v. Obama, affirms the lower court's dismissal.
Here's the court's summary of facts:
Alsabri is a Yemeni citizen who was born and raised in Saudi Arabia. He lived in Saudi Arabia until he was deported to Yemen in 1998, following an arrest for allegedly harboring an individual wanted for passport forgery. In Yemen, he associated with veteran jihadist fighters, including members of al Qaeda, and decided to travel to Afghanistan to fight with the Taliban or al Qaeda. In the summer of 2000, he traveled to Afghanistan by way of Pakistan, assisted by the Taliban and in the company of several men who expressed a desire to become martyrs. Once in Afghanistan, Alsabri stayed at several guesthouses affiliated with the Taliban and al Qaeda. He actively sought out and received military training from the Taliban or al Qaeda, and thereafter--with the authorization of one of Osama bin Laden's lieutenants--traveled to the front lines of the Taliban's fight against the Northern Alliance.
The court rejected Alsabri's claim that the lower court erred in finding certain facts and in concluding that he was part of the Taliban, al Qaeda, or associated forces. It also rejected his claim that the lower court wrongly admitted certain pieces of evidence of his objection. Finally, it rejected his claims that the district court wrongly limited his discovery, that the court wrongly admitted hearsay evidence, and that the lower court wrongly applied a preponderance-of-evidence standard instead of a clear-and-convincing-evidence standard.
There's really nothing new here, and the case is hardly a surprise. As the court said in regard to Alsabri's legal arguments: "As is apparent, all of Alsabri's legal arguments are foreclosed by Circuit precedent, a point his counsel forthrightly acknowledges. As is appropriate, counsel notes his disagreement with our rulings and includes the arguments in order to preserve the issues." Op. at 22.
South Africa Constitution's Sexual Orientation Equality Provision at Risk?
South Africa's Bill of Rights, Section 9, subsection 3 provides:
The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
This Constitution, effective in 1997, is the post-Apartheid Constitution. As the government itself boasts, "South Africa’s Constitution is one of the most progressive in the world and enjoys high acclaim internationally." The progressive reputation of the South Africa Constitution is well-deserved, and it is based in part as being the first Constitution to explicitly recognize equality on the basis of sexual orientation.
Interpreting this provision, the highly respected South Africa Constitutional Court has declared sodomy laws unconstitutional, has declared the limitation of marriage to opposite-sex couples as unconstitutional, and recognized family rights for same-sex couple parents.
But the inclusion of sexual orientation has re-emerged as a controversial issue. As ConLawProf Pierre deVos at the University of Cape Town reports on Constitutionally Speaking, the House of Traditional Leaders submitted a proposal to the Constitutional Review Committee of the National Assembly to amend section 9 of the Constitution to remove sexual orientation provisions and the Review Committee has referred the matter to the political parties. As deVos explains it:
This means that the various Parliamentary caucuses of political parties represented in Parliament will soon have to decide whether they support unfair discrimination against people they might believe are not like them, or whether they will affirm their commitment to non-discrimination and the respect for the human dignity of all South Africans, the very bedrock on which the Bill of Rights in the South African Constitution is founded. . . .
DeVos' analysis is worth reading in full.
Coupled with recent controversies surrounding the composition of the South Africa Constitutional Court, this is alarming news indeed, and threatens South Africa's status as a constitutional democracy that is "one of the most progressive in the world."
[image: Rainbow Map South Africa via]
National Day of Prayer/ National Day of Reason
This year, as President Obama issues the proclamation of a National Day of Prayer for May 3, it includes an invitation to "all citizens of our Nation, as their own faith directs them, to join me in giving thanks for the many blessings we enjoy, and I call upon individuals of all faiths to pray for guidance, grace, and protection for our great Nation as we address the challenges of our time."
Obama's proclamation is pursuant to 36 U.S.C. § 119 passed by Congress in 1988 and signed by Ronald Regan, declaring the First Thursday in May as the "National Day of Prayer."
While a district judge had enjoined the National Day of Prayer in 2010 as violating the Establishment Clause, the Seventh Circuit later ruled that the Freedom from Religion Foundation lacked standing to bring a claim for relief. Importantly, the Seventh Circuit stated that even if "this means that no one has standing, that does not change the outcome."
However, May 3 is now also the "National Day of Reason," supported by the American Humanist Association. Congressperson Pete Stark of California has made a statement on the floor of the House of Representatives recognizing the National Day of Reason as celebrating "the application of reason and the positive impact it has had on humanity. It is also an opportunity to reaffirm the Constitutional separation of religion and government." There is also a petition seeking President Obama's recognition of the National Day of Reason:
"We therefore respectfully ask that you issue a proclamation recognizing the National Day of Reason on May 3rd, 2012 in order to promote the importance of reason and to give secular Americans the same sort of governmental recognition that religious Americans receive on the National Day of Prayer. Regardless of our religious beliefs or lack thereof, we are all Americans."
[image: Erasmus, renowned humanist and theologian, Portrait by Hans Holbein, circa 1523, via]
May 2, 2012
Yoo Gets Qualified Immunity, Ninth Circuit Rules
The Ninth Circuit ruled today in Padilla v. Yoo that former Office of Legal Counsel attorney John Yoo is entitled to qualified immunity from a civil suit brought by Jose Padilla and his mother Estela Lebron for constitutional violations and torture while Padilla was detained as an enemy combatant.
The ruling means that the case will be dismissed, unless Padilla and Lebron appeal to the full Ninth Circuit or to the Supreme Court--and they agree to hear the case. The ruling reverses the lower court ruling in the case and aligns with the recent Fourth Circuit ruling dismissing a similar case (but for different reasons, discussed below).
The three-judge panel ruled unanimously that at the time of Padilla's detention it was not clearly established that his treatment violated his constitutional rights, and that it was not clearly established that his treatment amounted to torture.
As to constitutional rights, the court said that the outcome was dictated by the Supreme Court's ruling in Ashcroft v. al-Kidd (2011):
Significant here, under the second prong, a "Government official's conduct violates clearly established law when, at the time of the challenged conduct, '[t]he contours of [a] right [are] sufficiently clear' that every 'reasonable official would have understood that what he is doing violates that right.'" . . . "We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." The Court emphasized that "[q]ualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions" and admonished us "not to define clearly established law at a high level of generality."
Op. at 4524 (quoting Anderson v. Creighton (1987)). The court said that there was no judicial precedent squarely on point, and Padilla's argument--that a reasonable official would have known that he was entitled to the same constitutional protections as an ordinary prisoner or a suspect--defined the clearly establish right at too high a level of generality, in violation of al-Kidd.
As to torture, the court said that it wasn't clearly established at the time of Padilla's detention that his allegations rose to the level of torture (although it was clearly established that a U.S. citizen in military custody could not be tortured). The court surveyed international and domestic cases on torture and concluded that Padilla's allegations didn't obviously amount to torture.
The ruling aligns with the recent Fourth Circuit ruling in essentially the same case, although for different reasons. The Fourth Circuit ruled in Lebron v. Rumsfeld that special factors counseled against the case and that Padilla had other avenues of relief (habeas), thus defeating Lebron's Bivens claim.
Federalist Society Debate on Legal Rationale for Targeted Killing of U.S. Citizens
The Federalist Society recently posted a pod-cast debate on the legal rationale for targeted killings of U.S. citizens, featuring Professors Michael Lewis (Ohio Northern) and Stephen Vladeck (AU/WCL). Dean Reuter moderated.
The discussion followed on the heels of AG Eric Holder's speech outlining the administration's case for targeted killing. Lewis opens the discussion by claiming that Holder's criteria for designating a target would be sufficient, if they were mandatory. Here's the portion of Holder's speech that Lewis referenced:
Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.
Lewis examines each of these and gives his take on "operational" leader of al Qaeda (not just any al Qaeda member, or supporter), "associated forces" (which are allowable targets under the gloss that the courts have put on the AUMF),the government's determination of "imminent threat" (looser than the immediacy that we understand in a domestic law-enforcement sense), the feasibility of capture, and law of war principles--proportionality and necessity (and how these overlap with the other considerations).
Vladeck agrees that the government could target U.S. citizens under certain circumstances, but questions when and how: What process should the government use to ensure that Holder's criteria (or others) are satisfied? Vladeck looks to the due process analysis in Hamdi as a model, arguing that at least these due process procedures--applicable when the government takes a citizen's liberty--should be in place before the government takes a citizen's life. (Holder himself referenced the balancing test in Mathews v. Eldridge, but did not give a precise formula for the process due before the government targets and kills a citizen.) Vladeck argues that a FISA-like, ex ante judicial review is a bad idea, because it would lend legitimacy to targeted killings and entrench the government's power. Instead, Vladeck argues for judicial review and damage claims after the killing ( allowing government officials to assert qualified immunity and even the state secrets privilege)--thus helping to ensure that the government would take care in its decisions.
The two also discuss whether the authority should extend off the "hot battlefield" and issues related to transparency in government decisionmaking.
Vladeck noted how odd Holder's speech was, given that it said very little and that the government has refused to turn over any formal written legal rationale for the program--because the speech only refocuses attention on this, without settling anything. (For the same reasons, Brennan's recent speech only adds to the odd-ness.)
May 1, 2012
Update: Fifth Circuit Grants Emergency Stay in Texas Planned Parenthood Case
The Fifth Circuit, in a brief order from Judge Jerry Smith, has issued a stay of Judge Yeakel's preliminary injunction in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs.
As we discussed yesterday, Judge Lee Yeakel issued a preliminary injunction against a 2012 Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion.
April 30, 2012
More Justification for Drones
The President's top counter-terrorism advisor, John Brennan, set out the administration's legal and ethical case for the use of drones today at Woodrow Wilson International Center for Scholars. Brennan's speech comes just under two months after AG Eric Holder stated the case at Northwestern University, just over three months after DOD General Counsel Jeh Johnson argued the administration's case at Yale Law School, and nearly two years after State Department Legal Adviser Harold Koh made the case to the American Society of International Law. It also comes just over six months after administration sources hinted at the justification in WaPo and the NYT.
We last covered the administration's expanding use of drones in Yemen here.
Brennan's talk echoes Holder's, Jeh's, and Koh's earlier talks, with perhaps more length, but still little detail. We're still waiting for the administration to release its written legal analysis. The case by administration officials amounts to little more than "trust us" on its processes for identifying targets that pose a threat to trigger national self-defense. This falls far short for an authority that the administration used just last year to target and kill a U.S. citizen.
Here's what Brennan said today:
[A]s matter of domestic law, the Constitution empowers the President to protect the nation from any imminent threat of attack. The Authorization for Use of Military Force--the AUMF--passed by Congress after the September 11th attacks authorizes the president "to use all necessary and appropriate force" against those nations, organizations and individuals responsible for 9/11. There is nothing in the AUMF that restricts the use of military force against al-Qa'ida to Afghanistan.
As a matter of international law, the United States is in an armed conflict with al-Qa'ida, the Taliban, and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defense. There is nothing in international law that bans the use of remotely piloted aircraft for this purpose or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.
Second, targeted strikes are ethical. Without question, the ability to target a specific individual--from hundreds or thousands of miles away--raises profound questions. Here, I think it's useful to consider such strikes against the basic principles of the law of war that govern the use of force.
Targeted strikes confrom to the principle of necessity--the requirement that the target have definite military value. . . .
Targeted strikes conform to the principle of distinction--the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted. . . .
Targeted strikes confrom to the principle of proportionality--the notion that the anticipated collateral damage of an action cannot be excessive in relation to the anticipated military advantage. . . .
Brennan also touched on the administration's internal checks and processes:
This leads me to the final point I want to discuss today--the rigorous standards and process of review to which we hold ourselves today when considering and authorizing strikes against a specific member of al-Qa'ida outside the "hot" battlefield of Afghanistan. What I hope to do is to give you a general sense, in broad terms, of the high bar we require ourselves to meet when making these profound decisions today. That includes not only whether a specific member of al-Qa'ida can legally be pursued with lethal force, but also whether he should be. . . .
If our counterterrorism professionals assess, for example, that a suspected member of al-Qa'ida poses such a threat to the United States as to warrant lethal action, they may raise that individual's name for consideration. The proposal will go through a careful review and, as appropriate, will be evaluated by the very most senior officials in our government for decision.
First and foremost, the individual must be a legitimate target under the law. . . .
Of course, the law only establishes the outer limits of the authority in which counterterrorism professionals can operate. Even if we determine that it is lawful to pursue the terrorist in question with lethal force, it doesn't necessarily mean we should. . . .
As a result, we have to be strategic. . . .
For example, when considering lethal force we ask ourselves whether the individual poses a significant threat to U.S. interests. . . . I am not referring to some hypothetical threat--the mere possibility that a member of al-Qa'ida might try to attack us at some point in the future. A significant threat might be posed by an individual who is an operational leader of al-Qa'ida or one of its associated forces. Or perhaps the individual is himself an operative . . . . Or perhaps the individual possesses unique operational skills that are being leveraged in a planned attack. . . . .
Texas Federal Judge Enjoins Rule Prohibiting Planned Parenthood Funding
In an opinion today in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, Judge Lee Yeakel issued a preliminary injunction against a 2012 Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion. Before moving to the preliminary injunction standard, Judge Yeakel quickly rejected the state's Eleventh Amendment immunity argument.
The bulk of Judge Yeakel's 25 page opinion is devoted to the unconstitutional conditions argument. He concluded that the "affiliate" regulation was so broad that it infringed on plaintiffs First Amendment speech and associational rights. Any state interest in "respect for fetal life after viability" was not adequately served by the extensive prohibition. The argument that state funding "frees up" other money to provide abortions "extends too far."
The judge also found the equal protection argument had merit. By exempting hospitals, but applying the regulation to the 49 health centers, the regulation created a classification. The classification itself only implicated rational basis scrutiny, but it did infringe upon a fundamental right, thereby meriting strict scrutiny. In a very brief analysis, the judge expressed doubts whether the Texas regulation could satisfy even the lowest standard.
Finding the other factors for granting a preliminary injunction also weighed in favor of the plaintiffs, the judge enjoined the regulation and set a hearing for May 18.
[image: from PLanned Parenthood Ass'n of Hidalgo County via]
Complaint Against NYPD for Barricading OWS Protesters
The complaint filed today in the Southern District of New York in Berg v. Kelly (as NYC Police Commissioner), also naming as defendants a number of NYC Police Officers, claims violations of the First, Fourth, and Fourteenth Amendments for actions of the NYPD during an Occupy Wall Street (OWS) protest on November 30, 2011. The alleged facts are thet the NYPD detained the plaintiffs "for nearly two hours inside an interlocking metal barricade" and prohibited them from exiting the pen, although it allowed "tourists and journalists to leave."
The real gravamen of the complaint, however, is that the NYPD violated its settlement in Stauber v. The City of New York, and the NYPD Patrol Guide provisions that the NYPD agreed to inserts in its manuals as a result of that settlement. One such provision is alleged to be:
Barrier configuration for demonstrations should not unreasonably restrict access to and participation in the event. For example, attendees should be permitted to leave a barricaded area at any time. In addition, if crowd conditions and other circumstances permit, participants should be permitted to leave and return to the same area. Sufficient openings in the barricades should be maintained for purpose of permitted attendees to leave expeditiously and return to the event as described in this paragraph.
Under this language, the facts alleged are certainly in violation, leaving the First, Fourth, and Fourteenth Amendment arguments ancillary. Also compare the European Court of Human Rights opinion from last month that found no violation by British law enforcement's practice of kettling during a demonstration.
[image: NYPD & Occupy Wall Street demonstration in September 2011 via]
Take-Home Con Law Exam?
Subject: Con law help?
If the government tries to bar a woman from becoming president on textual grounds, what governmental purpose is being served?
"The post went up at 2:19 on Thursday. By 2:27 he had a response":
the purpose being served would be the one that wouldn’t have you posting questions about our take home con law exam on top law schools trying to get the answer.
Condolences to the ConLawProf who now has to sort this out.
April 29, 2012
Sunday Book Review: American Politicians Confront the Court
In Law and Politics Book Review, Tom S. Clark reviews a timely book, American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power by Stephen M. Engel. Clark writes that "Engel’s argument is essentially that the terms of constitutional political debate have evolved over the past 220-plus years and that the nature of political confrontations with the Court bears witness to those patterns."
Clark compliments Engels' historical and descriptive narrative,noting that his "knowledge of the content and nature of political attacks on the Court throughout American history is impressive." He finds Engels' explanatory theory of the "displacement of civic republicanism with liberal pluralism" provocative. But he wonders whether "the story is not that politics changed and as a consequence the Court has become “safe” from attacks on its legitimacy. Instead, the story could be that the Court has strategically taken steps to build a strong reputation among the public (the real source of power in American politics) and thereby cornered the politicians into a position where they can no longer actively threaten the Court, for fear of political reprisal from the public."
Yet Clark's own suggestion that the Court has solidified its power beyond approach might be vulnerable. The most recent example is public criticism of Scalia's conduct in the oral arguments in Arizona v. United States. There has also been a resurgence of interest in the question of whether Supreme Court Justices (and all federal judges) are guaranteed life tenure by the Constitution.
And in today's NYT "Sunday Review" prominent literary figure E.L. Doctorow essentially argues that the United States has become unexceptional: "indistinguishable from the impoverished, traditionally undemocratic, brutal or catatonic countries of the world." Notable, Doctorow's essay begins and ends by focusing on the Supreme Court, with a healthy dose of Court-blaming in the middle. Definitely worth a read for the way in which the Court is being implicated in political rhetoric.
Situating the current rhetoric in the history that Engels and Clark provide adds necessary depth to our contemporary understandings.