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Finally, starting tomorrow night, my reports will be cross-posted at the ABA Journal website’s Supreme Court section. I give a big welcome to those future readers thumbing through F1@1F via abajournal.com.
Time to fit in a few hours of sleep. See you all tomorrow!
If history has taught us anything, it is this: the spirit of US Air Guitar is indomitable.
If in January Steve Jobs had unveiled Air Guitar, would it have been any less innovative? If one day the Supreme Court unexpectedly judges a case using the following criteria: technical ability, stage presence, and “airness,” would the rest of us be any worse off? If the last episode of X-Files revealed that Air Guitar was the answer, would you not believe?
He’s too detached and cerebral. Too deferential to Congress. Too willing to compromise. And he’s too much of a law professor and not enough of a commander in chief, as Sarah Palin recently admonished.
These are some of the qualities for which the president, rightly or wrongly, is criticized. They are also the qualities that make him well suited for another steady job on the federal payroll: Barack Obama, Supreme Court justice.
Rosen continues with a couple of his fantasy scenarios:
It would be unusual, but not difficult, for Obama to get himself on the Supreme Court. He could nominate himself to replace John Paul Stevens, for example, or he could gamble and promise Hillary Rodham Clinton that he won’t run for reelection in 2012 in exchange for a pledge of appointment to the next vacancy.
I believe my fun with the future is less fantastical, at least in terms of a Justice Obama timeline. As I implied in one of my very first F1@1F posts, should there be a Democratic President at the dawn of the next decade, Obama is more likely to succeed Scalia than he is to swap himself out for Ginsburg during his own presidency.
Even if my own peyote prediction trumps Rosen’s silly scenarios, the rest of Rosen’s column remains quite compelling. He invokes Justice Brandeis as the prototype for a Justice Obama:
Brandeis, who served on the high court from 1916 to 1939, offers a good model for Obama. Known as “the people’s lawyer,” he was an economic populist, criticizing the “curse of bigness” that led oligarchs such as J.P. Morgan to threaten the entire financial system by taking reckless risks with “other people’s money” and then to demand government bailouts after their bad bets. But Brandeis opposed bigness in government as well as in the private sector, and during the New Deal he preferred regulations that prevented companies from getting too large in the first place — such as the Glass-Steagall Act separating commercial from investment banking — rather than the creation of huge federal bureaucracies to regulate the economy.
On the high court, Brandeis generally stood for judicial restraint, denouncing conservatives for striking down progressive state economic regulations. But he also believed fiercely in the First Amendment and freedom from unreasonable searches. Both a pragmatist and a civil libertarian, he provides a judicial ideal for Obama, whose record resembles his in many respects.
Besides Obama’s judicial qualities listed by Rosen, Obama also has an ambitious vision of his place in history. But he also knows that making history is all in the timing, and he won’t make history by simply becoming a Justice. Even if he’d be the first Justice from Hawaii, he wouldn’t be the first Harvard Law graduate, University of Chicago professor, Senator, African-American, or President to turn up on the Court.
But he could be the momentous fifth vote to turn the Court back to the left. He won’t make that history if he replaces Stevens or Ginsburg. And don’t think Obama doesn’t know that–if Obama has his eye on the Court, of course.
And then, there was last term’s voting-rights case, in which Roberts wrote an 8-1 decision rejecting a broad constitutional challenge to the Voting Rights Act and instead deciding the case on technical grounds. For those who wanted to believe that Roberts was a genuine conciliator, this was a powerful piece of evidence. Like others, I praised his performance in the case as an act of judicial statesmanship.
But, in retrospect, the ruling may have been less statesmanlike than it appeared. According to a source who was briefed on the deliberations in the case, Anthony Kennedy was initially ready to join Roberts and the other conservatives in issuing a sweeping 5-4 decision, striking down the Voting Rights Act on constitutional grounds. But the four liberal justices threatened to write a strong dissent that would have accused the majority of misconstruing landmark precedents about congressional power. What happened next is unclear, but the most likely possibilities are either that Kennedy got cold feet or that Roberts backed down. The Voting Rights Act survived, but what looked from the outside like an act of judicial statesmanship by Roberts may have in fact been a strategic retreat. Moreover, rather than following the principled alternative suggested by David Souter at the oral argument–holding that the people who were challenging the Voting Rights Act had no standing to bring the lawsuit–Roberts opted to rewrite the statute in a way that Congress never intended. That way, Roberts was still able to express his constitutional doubts about the law-as well as his doubts about landmark Supreme Court precedents from the civil rights era, which he mischaracterized and seemed ready to overrule.
The voting-rights case may help explain why Roberts didn’t take a similarly conciliatory posture in Citizens United. After all, one was certainly available. Just as Roberts had implausibly but strategically held in the voting-rights case that Congress intended to let election districts bail out of federal supervision, he could have held–far more plausibly–in Citizens United that Congress never intended to regulate video-on-demand or groups with minimal corporate funding. As with the voting-rights case, judicial creativity could have been justified in the name of judicial restraint.
There is, of course, a charitable explanation for why Roberts took the conciliatory approach in one case but not the other: namely, that he felt the principles involved in Citizens United were somehow more important and therefore less amenable to compromise. As he told me in our 2006 interview, he has strong views that he, like his hero John Marshall, is not willing to bargain away. Marshall, Roberts said, “was not going to compromise his principles, and I don’t think there’s any example of his doing that in his jurisprudence.”
But a less charitable explanation for the difference between the two cases is that Roberts didn’t compromise on Citizens United because, this time, he simply didn’t have to.
Setting aside Rosen’s brief and remarkable peek into the NAMUDNO deliberations, this passage also has echoes of F1@1F’s main thesis: the Court is guided by a Chief Justice who picks his battles wisely, preserving the Court’s political capital only for the cases most near to movement conservatism’s heart. Rosen takes this point, but wavers in conclusion:
It’s impossible, at the moment, to tell whether the reaction to Citizens United will be the beginning of a torrential backlash or will fade into the ether. But John Roberts is now entering politically hazardous territory. Without being confident either way, I still hope that he has enough political savvy and historical perspective to recognize and avoid the shoals ahead. There’s little doubt, however, that the success or failure of his tenure will turn on his ability to align his promises of restraint with the reality of his performance. Roberts may feel just as confident that he knows the “right” answer in cases like Peek-a-Boo as he did in Citizens United. But political backlashes are hard to predict, contested constitutional visions can’t be successfully imposed by 5-4 majorities, and challenging the president and Congress on matters they care intensely about is a dangerous game. We’ve seen wellintentioned but unrestrained chief justices overplay their hands in the past–and it always ends badly for the Court.
I believe Roberts has the political sense to avoid an all-out clash with the elected branches and that the Court has formed its docket and made its decisions accordingly. F1@1F’s mission is to test that hypothesis through oral argument and opinion analysis as well as interviews with those interested enough to get in the Court’s general admission line. Given the expected longevity of the Roberts Court, this term alone, even set against the trend of the previous three terms, will hardly be determinative. But it will be informative.
Americans of both parties overwhelmingly oppose a Supreme Court ruling that allows corporations and unions to spend as much as they want on political campaigns, and most favor new limits on such spending, according to a new Washington Post-ABC News poll.
Eight in 10 poll respondents say they oppose the high court’s Jan. 21 decision to allow unfettered corporate political spending, with 65 percent “strongly” opposed. Nearly as many backed congressional action to curb the ruling, with 72 percent in favor of reinstating limits.
The poll reveals relatively little difference of opinion on the issue among Democrats (85 percent opposed to the ruling), Republicans (76 percent) and independents (81 percent).
The results suggest a strong reservoir of bipartisan support on the issue for President Obama and congressional Democrats, who are in the midst of crafting legislation aimed at limiting the impact of the high court’s decision. Likely proposals include banning participation in U.S. elections by government contractors, bank bailout recipients or companies with more than 20 percent foreign ownership.
But Senate Minority Leader Mitch McConnell (Ky.) and other Republican lawmakers have praised the ruling as a victory for free speech and have signaled their intent to oppose any legislation intended to blunt the impact of the court’s decision.
This massive disagreement with the Court’s decision and the partisan disconnect in Congress with the voting public show two things:
- The Court wisely kicked its Citizens United decision into this term, which has no other fever-pitched case of public concern on its docket. One deeply unpopular decision a term will allow the Roberts Court as currently constituted to steer right against today’s left-leaning political winds without spending all its political capital and destroying its institutional legitimacy.
- Republican voters haven’t gotten the memo…yet. If Democratic responses move beyond a State of the Union slap and some wonky Congressional bills, and into campaign fodder this summer and fall, the GOP will get the message out to its voters that disagreeing with Citizens United is for liberals–and these days, conservatives can be thrown out of the Republican party for agreeing with liberals on issues of great impact. Campaign finance is an issue of great impact, but campaign finance legislation makes peoples’ eyes glass over. As such, expect some terse, lockstep messaging–the GOP’s specialty when communicating to its constituency–coming from on high. “Corporate Personhood” and “Money is Speech” can and likely will be enthusiastically absorbed into the Republican voters’ canon within months. Do not count on this “strong reservoir” of bipartisan disagreement with the Court’s decision to last.
Via Ben Smith @ Politico, Justice Scalia believes that the Civil War settled the constitutional question of secession:
[T]he answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, “one Nation, indivisible.”)
The screenwriter that posed the secession question to Scalia may have found better luck if he inquired about something a little closer and ostensibly less soaked in blood. Something like, say, the constitutionality of affirmative action.
Indeed, a Michigan-based pro-affirmative action group, By Any Means Necessary, has filed a class action lawsuit against California’s Prop 209, which upon its 1996 passage amended California’s constitution to bar affirmative action in the University of California system.
There is no guarantee that this suit will move forward. But BAMN appears emboldened by two factors: 1) the current Prop 8 challenge in a California federal district court, and 2) the Roberts Court’s hostility to race-based policies and initiatives.
Yet just because a federal court proceeded with trial in the Prop 8 case, and that case seems destined to go to a Supreme Court that has issued rulings favorable to gay rights, does not mean that Prop 209 will get the same treatment. First, the Ninth Circuit unanimously smacked down a challenge to the amendment in 1997. Second, Justice Kennedy, who may or may not be favorable to gay rights when it comes to marriage, is absolutely and unequivocally against affirmative action: he dissented Metro Broadcasting, was in the majority in Adarand, dissented in Grutter, was in the Gratz majority, was Parents Involved‘s fifth vote, and penned Ricci.
Justice O’Connor in Grutter upheld affirmative action. Justice Alito will have no such sympathies. Unless Kennedy has a Casey moment and steps back from the brink of overturning another liberal, Burger Court era precedent, BAMN should count the votes and fire its counsel for malpractice: if this case goes to the Supreme Court, it will find five justices who will not hesitate in ending affirmative action once and for all. And they will almost certainly use Chief Justice Roberts’s concurrence in Citizens United to justify reversing Grutter within a decade of the decision.
Kennedy voted against his previous voting record and upheld abortion in Casey because O’Connor’s investment in the law and Souter’s fealty to stare decisis convinced Kennedy that Roe should not be entirely felled. With neither O’Connor nor Souter remaining on the bench, I see no way affirmative action will survive Kennedy’s longstanding antipathy to race-conscious laws. In fact, we may sooner see the justices rule that secession passes constitutional muster. And even Scalia, with his famously alienating pen, could write an opinion that holds a nine-member majority on its unconstitutionality.
Anyone at Yale Law want to send me notes from Justice Breyer’s lectures tomorrow and Tuesday on the Court and public acceptance ?
The Monday lecture will be hosted by Yale President Richard Levin and is titled “History: Challenges the Court Has Faced.” [...]
Yale Law School Dean Robert Post ’77 will host Tuesday’s lecture, “Future: Will the People Follow the Court?” and Potter Stewart Professor of Constitutional Law Paul Gewirtz ’70 will introduce the Justice. [...]
The lectures are based on a book Justice Breyer is currently completing, provisionally titled Making Democracy Work, to be published later this year by Alfred A. Knopf. The lectures will address the Supreme Court’s role in helping to make the American Constitution work well in practice. They will discuss key moments in the Court’s history that illustrate the importance of public acceptance of the Court’s decisions, as well as challenges the Court has faced in achieving such public acceptance. Justice Breyer will also share his thoughts on what the Court must do in the future to make the Constitution work well in practice and to maintain the public trust it has earned.
The First Lady of First One @ One First and I took a stroll through our neighborhood and made a stop at the local courthouse.
Here’s Linda Greenhouse, the former NYT Supreme Court reporter, interviewed about themes very important here at F1@1F:
JD: In an article you wrote for The New York Times, you say that “the court lives in constant dialogue with other institutions, formal and informal, and that when it strays too far outside the existing political or social consensus, the result is a palpable tension both inside and outside the court.” In what instances have you observed the court straying too far from present social or political consensus?
There was a series of Supreme Court decisions in the 1990s that overturned acts of Congress on the ground that Congress didn’t have the constitutional authority to have passed those laws in the first place. I made a big deal about it because I just thought it was really fascinating. There was a pushback against that. Congress pushed back, and the political system pushed back. The court stopped doing it. They tended to be very technical decisions, but subgroups of the population were very interested. That maybe was an instance of the court overreaching, that you could call a Federalist revolution. Then, a lot of people cite Roe v. Wade as the court overreaching. That’s not my view in that instance. There was a huge debate going on about abortion at the time, and the court actually had plausible reasons to think that it was following public opinion in Roe.
JD: What was the difference in the political environment surrounding Roe v. Wade and that surrounding a case like Brown. v. Board of Education? What made people think that the court could have been overreaching in Roe, but not in Brown?
Well, of course there can be many reasons. One reason could be that equal protection, which is what Brown is based on, is hard wired into the Constitution, and it’s just a question of, did equal protection mean “separate but equal”? One could have disagreed with Brown, and of course many areas in the South took decades to come around to it, but you couldn’t appropriately argue that it wasn’t the business of the Supreme Court to decide the issue of the rights of black citizens. Of course, the Constitution doesn’t contain the word abortion. So, there’s always the argument that the court was out of line in doing anything about abortion, yay or nay. The Constitution doesn’t say anything about giving the court the right to step into that area. That’s not my personal view, but it certainly distinguishes the Roe controversy from Brown v. Board. [...]
JD: To what extent do you believe that the court has become politicized? How much does public opinion affect the way judges vote?
Well, Barry Friedman wrote a book that’s 682 pages on the subject, called The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. But Barry Friedman’s thesis, which I agree with, is not that the court wakes up in the morning, puts its finger in the wind and says, you know, “what’s blowing today?” but that over time, the court tends to situate itself in the mainstream of public opinion and it reflects public opinion, which makes sense, because the justices get on the court through the political process of the president nominating them and the Senate confirming them. And as a part of the government, the court is really limited to its power to persuade, its power to command the respect of the public, which it has succeeded in doing to a remarkable degree over the years. In social science polling, the court is always the most respected arm of government. The court really has been pretty successful in reflecting not necessarily the opinion of the moment, but the tenor of the time, and I think that’s not surprising.
JD: Do you agree with people who say that sometimes the court’s decisions are influenced by liberal media bias?
Well, no, the whole “Greenhouse Effect?” Properly understood, they are referring to me not as an individual but as sort of an embodiment of Eastern liberal media, namely The New York Times. No, I don’t think that’s the case, but it’s certainly true that over time, the court certainly cannot be completely at odds with the American public. I mean, that’s what happened in the Roosevelt court-packing crisis. I hear people speculate that if we were ever to pass a health care bill with a mandate that the court would declare it unconstitutional, but I would be completely shocked if that ever happened, because that would really be a return to the 1930s, where the court was standing in the way of major social legislation that the public had called for. So, I would be extremely surprised if that ever happened again. [F1@1F NOTE: My thoughts exactly.]
JD: In writing of the Supreme Court’s relationship with society, you say, the Supreme Court is often a follower: it ratifies or consolidates change, rather than propelling it, although in the midst of a heated debate about a big case, it can appear otherwise. What do you mean by this?
Well, I think I probably had Roe v. Wade in mind. Abortion reform had been going on for 15 years by the time the court decided Roe, so when people say that historically, the court started it, no, they didn’t. The court doesn’t start much. It can’t, really. Cases reach the court after years of debate. Just look at Proposition 8. It’s coming up ten years after Lawrence v. Texas and five years after the start of same sex marriages in San Francisco City Hall. So, things get to the court only because they have been working their way up through the rest of society, and it’s worth keeping that in mind.