F1@1F’s second installment of its Guide to SCOTUS Seats is now live at Above the Law:
Last week, I gave you all the information you need to be at the head of the line. But getting there is only the start of the full experience. After the jump, I give you some tips to maximize your morning.
Read the rest here.
New readers, have fun digging through F1@1F’s archives – may I suggest starting from the start?
C-Span has just released its full video archive. Boy oh boy.
My very first memory of the Supreme Court was watching Justice Thurgood Marshall’s retirement press conference with my father in our family room. I was almost nine years old at the time and had no idea who this man was, but understood that if my dad was watching him talk, then he must have had something important to say.
Nevertheless, all I saw was an old, ailing, ornery man talking about stuff I didn’t understand. Frankly, I confused Marshall’s sense of humor and cursory “I Don’t Know’s” with something similar to my grandmother’s senility.
Since I started following the Court a few years ago, I’ve been searching for this video to straighten my memories out. Well, here it is:
The New Yorker just released Jeffrey Toobin’s long profile on Justice Stevens. Other parts of the blogosphere are commenting on Stevens’s hedging over his seemingly imminent retirement, so here are a few other notable law-and-politics excerpts:
Stevens is an unlikely liberal icon. When he was appointed, he told me recently, he thought of himself as a Republican and always had—“ever since my father voted for Coolidge and Harding.” He declined to say whether he still does. For many decades, there have been moderate Republicans on the Court—John M. Harlan II and Potter Stewart (appointed by Eisenhower), Lewis F. Powell and Harry Blackmun (Nixon), David H. Souter (Bush I). Stevens is the last of them, and his departure will mark a cultural milestone. The moderate-Republican tradition that he came out of “goes way back,” Stevens said. “But things have changed.” [...]
Still, Stevens’s views suggest a sensibility more than a philosophy. Many great judicial legacies have a deep theoretical foundation—Oliver Wendell Holmes’s skeptical pragmatism, William J. Brennan’s aggressive liberalism, Scalia’s insistent originalism. Stevens’s lack of one raises questions about the durability of his influence on the Court.
But, more than anything, his career shows how the Court has become a partisan battlefield. In that spirit, Roberts last week denounced President Obama’s criticism of the Court in his State of the Union address, saying that the occasion had “degenerated to a political pep rally.” When Stevens leaves, the Supreme Court will be just another place where Democrats and Republicans fight. [...]
After his clerkship, Stevens returned to Chicago and took a job at one of the city’s first religiously integrated law firms. Abner Mikva clerked on the Supreme Court the year after Stevens, then returned to Chicago to start a career in public life. “Those were the days when there was such a thing as a moderate Republican, and that’s what he was,” Mikva said of Stevens. “He was a pretty conservative Republican on economic issues, but he was always a great progressive on civil rights and social rights.” [...]
Stevens, throughout his years on the Court, has drawn not just on history and precedent but on contemporary values and even on his own experience as a judge. According to Stevens, that approach has its origins in his brief stint as a lawyer on the staff of the House Judiciary Committee. “That was probably one of the most important parts of my education,” Stevens told me. He recalled an incident involving an antitrust law: “I remember explaining one of the tricky problems in the statute to one of the members of the committee. I got all through it, and he said, ‘Well, you know, let’s let the judges figure that one out.’ ”
What that told him was that “the legislature really works with the judges—contrary to the suggestion that the statute is a statute all by itself,” Stevens said. “There is an understanding that there are areas of interpretation that are going to have to be filled in later on, and the legislators rely on that. It’s part of the whole process. And you realize that they’re not totally separate branches of government—they’re working together.”
My tutorial on when to arrive at the Court is now live at Above the Law:
I needed clarity—a bright moral line—to cut through my sleepless haze and save my principles from ATL’s temptation. I needed Justice Scalia.
But Justice Scalia, only hours before, killed his credibility when he openly embraced “substantive due process,” the living constitutionalists’ darling device for abortion- and gay-rights, rather than face the liberal consequences of an originalist reading of a resurrected Privileges or Immunities Clause of the Fourteenth Amendment.
That sealed it. If Scalia could imperil his legacy for the sake of convenient results, then so could I.
Read the rest at Above the Law. Part II will be up over there next week.
The Court today granted certiorari in Snyder v. Phelps, et al. Here’s Lyle Denniston from SCOTUSBlog:
The Supreme Court, taking on the emotionally charged issue of picketing protests at the funerals of soldiers killed in wartime, agreed Monday to consider reinstating a $5 million damages verdict against a Kansas preacher and his anti-gay crusade. [...]
The funeral picketing case (Snyder v. Phelps, et al., 09-751) focuses on a significant question of First Amendment law: the degree of constitutional protection given to private remarks made about a private person, occurring in a largely private setting.
If Lyle’s description and the name “Phelps” didn’t already set off your mental bells, let me put the question before the Court another way–with illustrative hyperlinks: is this speech by this preacher‘s congregation protected under the First Amendment?
In other words, I may have to dust off F1@1F next term for a special encore report from this case’s line.
UPDATE: Back in 2006, Molly McDonough of the ABA Journal–she’s now my overseer over there–wrote about the constitutionality of the state and federal laws enacted to keep Phelps’s folk away from soldiers’ funerals. Next term’s case is based on a common law tort’s damage award, not on any statutory command, but McDonough’s story is still well-worth revisiting.
Bob Barnes at the Washington Post has a column today that discusses whether the days of the Court’s religiously-reserved seats are over:
Here’s the kind of question that might violate the rules you learned about proper dinner conversation: Does President Obama’s next Supreme Court nominee need to be a Protestant?
If Justice John Paul Stevens decides to call it a career after he turns 90 next month, the Supreme Court would for the first time in its history be without a justice belonging to America’s largest religious affiliations.
Turns out I’ve violated dinner conversation etiquette several times since I started F1@1F in December.
As I stated on F1@1F’s first day, I believe Obama will nominate Judge Diane Wood to preserve what has now become “the W.A.S.P. seat” when Stevens retires. For this reason (though not only this reason) I disagree with Tom Goldstein’s prediction at SCOTUSBlog that Solicitor General Elena Kagan will be Stevens’s successor.
In fact, Kagan may have time yet before she gets her much-expected nomination to the bench. I think Justice Ginsburg’s successor will be a person of color from a yet-to-be represented ethnic group. Only when Justice Breyer retires will the President seek to preserve the Jewish seat.
By then, however, Kagan’s window may be closed by age or the President’s party affiliation. And no amount of goodwill Kagan built up among the conservative legal professoriate during her Harvard Law deanship will compel a GOP President to nominate her.
On Monday night, Dick Anthony Heller, the named plaintiff in the landmark Second Amendment case D.C. v. Heller, dropped by to spread good cheer to the line with cough drops and autographed leaflets. At one point, he even blessed my own chair with his presence!
Here he is giving an impromptu civics lesson on Women & Guns to Monta Vista High School students from Cupertino, CA:
Come the morning, Mr. Heller reappeared…at the front of the line.
One can’t blame Heller for expecting our goodwill: after all, McDonald was the sequel to the case that made him a gun rights hero. Nevertheless, no amount of autographs, cough drops, or civics lessons could substitute for the front of the line’s hard-won right to keep and bear single-digit placeholders. Moments later, he respectfully stood down.
More SCSW spots coming soon.
My report from line is now live at the ABA Journal:
The line doesn’t lie.
By 4 p.m. on Heller Eve two years ago, forty people stood in line along One First Street. At the same time this past Monday, the day before oral arguments in Heller’s sequel, McDonald v. City of Chicago, there were only seven of us.
As the sun set over the Supreme Court, we wondered why the line wasn’t longer; after all, this was the case that would resurrect the Privileges or Immunities Clause of the Fourteenth Amendment and introduce a new constitutional order for all fundamental rights! Nevermind where all the gun nuts were—where were all the abortion warriors, railroad robber barons, education rights revolutionaries, and health care socialists?
But the line doesn’t lie. We were just too wrapped up in McDonald’s hype to listen. This was going to be a simple incorporation case. [...]
But none of this is to say that McDonald’s twenty-four hour line was not extraordinary in its own right.
Read the rest here.
And if you haven’t yet read the NYT’s story from the McDonald line, you may do so here.