Home -> Law Blog Directory -> Legal Commentary Blogs -> Prawfs

OR PHONE (866) 635-1838 for Bankruptcy Help, (866) 635-6190 for Divorce,
(866) 635-2689 for Personal Injury or (866) 635-9402 for Criminal Defense

Find a Local Lawyer

Bankruptcy (866) 635-1838
Divorce (866) 635-6190
Personal Injury (866) 635-2689
Criminal Defense (866) 635-9402

Legal Commentary

: Prawfs

Ricci v. McCormack

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

ADVERTISEMENTS

Some of the attention focused on Judge Sotomayor's position in the Ricci case has discussed the likelihood that the Supreme Court will take the opposite view within the coming weeks, in the middle of the confirmation process. If that is so, I imagine some writers will take the view that being reversed in a high-profile case says something pertinent about whether Sotomayor is worthy of confirmation, or that it is a deliberate public blow against Sotomayor by the Court, one that is warranted or unwarranted depending on one's viewpoint. I thought it might be worthwhile to remind readers of a similar incident, one that is interestingly recounted in Woodward and Armstrong's book The Brethren. The tale concerns Chief Justice Warren Burger. A week after his confirmation, and one week before his swearing in, the Supreme Court announced its decision in Powell v. McCormack, holding that the House could not deny Adam Clayton Powell his seat for reasons that fell outside the scope of the Qualifications Clause. The decision overturned an opinion written by then-Judge Warren Burger.

Woodward and Armstrong write, without direct sourcing but fairly clearly from Burger's perspective: "The press would have a field day. . . . The reversal was a typical example of the Warren Court's activism -- mere meddling in Burger's view. He had already been overruled twice that year, but this was the first time since his nomination. There should have been some way for [Chief Justice Earl] Warren to avoid a direct slap at him, perhaps with an unsigned opinion." They then recount a discussion between Burger and Warren, in which Warren tells Burger, "'It was perfectly clear . . . . There was no other way to decide it. Anybody could see that.'"

In short, plus ca change. Of course, none of this means that critics of Sotomayor can't disagree with her position in Ricci, or even think that that single vote is cause enough to vote against her, although I don't share the latter view. But being reversed goes with the territory of being a lower court judge, and the fact of the timing of such a reversal, should it occur, should not be viewed as being especially telling or humiliating.

Of course, this post takes no position on whether Ricci should be affirmed or reversed -- or, for that matter, on whether Powell was correctly decided, or on whether Burger could be rather pompous and self-regarding on occasion, or on whether Warren was deliberately or unconsciously acting rudely in this case.

Full post as published by Prawfs on May 28, 2009 (boomark / email).