Bench Memos

Do the Administration’s Numerous 9-0 Losses Mean It Is Being Extreme?

Over at the Volokh Conspiracy, there’s an interesting debate going on between Ilya Somin, Orin Kerr, and David Bernstein. Somin started the discussion with this post. An excerpt:

Still, when the president’s position in multiple major constitutional cases cannot secure even one vote on an ideologically and methodologically diverse Court that includes two of his own appointees, it is likely there is something wrong with the administration’s constitutional worldview. The mistakes cannot be attributed to low-level underlings.

Orin Kerr responded twice thusly:

Ilya has some fun suggesting that Obama was the uniter, in that he personally brought the Justices together with his positions. But at least in the cell phone cases, the arguments likely were crafted mostly by career lawyers who have been in the government for a long time. The Bush Administration DOJ took the same position back when it existed, at least to the extent that the arguments of DOJ lawyers can be imputed to “the Administration.” And state prosecutors took the same position in their respective state courts and in Riley. It’s the standard position you would expect any prosecutor to take, not something BHO cooked up one afternoon after reading his daily chapter of Saul Alinsky.

Somin replied:

Orin suggests that the positions the administration took in these cases were not extreme in the sense that they were not “unusual position[s] that go… way beyond what the repeat-player litigant would be expected to take.” In many of these cases, this is true (though not always: even Justice Elena Kagan, Obama’s former Solicitor General, expressed incredulity that the administration took the position it did in one of these cases). But this is precisely the problem I have emphasized in my writings on this subject, going back to my USA Today op ed last year. It has become normal for administrations of both parties to latch onto highly dubious – and, yes, extreme – theories of federal power whenever they might help the administration promote its policy agenda or win a case in court. Such behavior is not “extreme” in every possible sense of the word. But that is hardly reassuring.

David Bernstein chimed in, too, with several examples. You can read them all here

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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