Hanna: A Day in Court

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(HOST) Today was the last day of the term in the United States Supreme Court and the start of the confirmation hearings for Elena Kagan.  Vermont Law School professor and commentator Cheryl Hanna recaps the day’s events and what they mean for Vermonters.

(HANNA) The former dean of Harvard Law School, Roscoe Pound, once said, "The law must be stable but it must not stand still."  This is particularly the case for Constitutional Law: it moves, but not in too radical a way.
Yet today marked one of the most dramatic days in history for both the United States Supreme Court and the Constitution.  

Here’s the list of what happened, in no particular order of significance:

First, today was the last day for Justice John Paul Stevens, who’s been on the Court for more than 35 years. His departure leaves the Court’s more liberal wing without an obvious leader.

Second, Justice Ruth Bader Ginsburg’s husband, Martin, died last night after battling cancer.  Justice Ginsburg was on the bench this morning, but her husband’s death is fueling speculation that she, too, will retire soon, leaving President Obama with his third vacancy.

Third, by a scheduling fluke, the Senate Judiciary Committee, led by Vermont’s Patrick Leahy, began confirmation hearings for Elena Kagan, Obama’s nominee to replace Stevens.  

When Kagan is confirmed, and she will likely be confirmed despite the contentious tone of the hearings, she will be the fourth new justice in five years, making the Court increasingly unpredictable.

Fourth, Kagan’s hearings went on despite the death of West Virginia Senator Robert Byrd. With Byrd’s passing, Senator Leahy is now the second most senior member of the Senate.

Fifth, the Court issued important rulings today involving guns, God, and the powers of the president. The results: Guns and the president won; religious student groups at public schools that want to exclude certain members because of their beliefs lost.

So what does all this change mean for Vermont? First, despite Senator Leahy’s power in the judicial selection process, in the end, he’s relatively powerless to change the Court’s increasingly conservative direction. No lawyer as liberal as Stevens would ever be appointed, and unless one of the Court’s conservative members unexpectedly leaves, in controversial cases it simply depends on what Justice Kennedy thinks because he’s the most centrist and thus powerful member of the Court.

Second, and perhaps more interestingly, with the Court’s rulings today, the rest of the country may end up looking more like Vermont.  We have no significant gun control laws, and after today’s decision neither will many states and local governments throughout the United States.  

And  the Court’s decision to side with public schools and against religious groups reinforces the kind of state secularism that’s typical in Vermont, which is one of the least religious states in the nation.

What makes this all so fascinating is that while the Constitution stays the same, the players change and the rules change, and when so much change happens in a day, the law can seem unstable; but our constitutional democracy has survived instability before – and will survive it again.

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