FIRST ONE @ ONE FIRST

Justice Elena Kagan

Posted in Justicespotting by Mike Sacks on August 7, 2010

It’s official.  Video here.

DOMA Unconstitutional?

Posted in Law and Politics by Mike Sacks on July 8, 2010

The gay marriage battle has taken a significant step towards the Supreme Court today.  No, the verdict hasn’t yet been announced in California’s Proposition 8 case.  Rather, a federal district court in Massachusetts, in a pair of cases, has declared the Defense of Marriage Act, or DOMA, unconstitutional as applied to states and individuals.

Via Above the Law:

A federal judge in Boston — Judge Joseph L. Tauro (D. Mass.), appointed to the bench by President Nixon back in 1972 — just issued a ruling striking down Section 3 of the Defense of Marriage Act (DOMA). As you may recall, DOMA is the 1996 law that effectively bans recognition of same-sex marriages for purposes of federal law.

One case, Massachusetts v. U.S. Health and Human Services, struck down DOMA as a violation of Massachusetts’ Tenth Amendment rights.  The other case, Gill v. Office of  Personnel Management, declared DOMA to violate the equal protection component of the Fifth Amendment as applied to seven same-sex couples and three surviving same-sex spouses who were married in Massachusetts.

As this case seems destined for One First Street, somewhere Elena Kagan is thankful she didn’t commit to Sen. Chuck Grassley’s questioning her over the precedential value of Baker v. Nelson, the 1971 Minnesota Supreme Court case that held that a state law restricting marriage to the union of a man and a woman did not violate the Constitution–a holding that the United States Supreme Court dismissed on mandatory appeal in 1972 “for want of a substantial federal question.”

And somewhere in Iowa, Grassley is CTRL-F’ing the two opinions for any mention of Baker v. Nelson, only to find no mention of it by Judge Tauro.

In fact, by prefacing his questions to Kagan with the assertion, “Marriage is a state issue,” Grassley framed Baker v. Nelson in a way favorable to the prevailing plaintiffs in today’s rulings.  After all, Judge Tauro’s opinions struck to the heart of a federal law that cut against a state’s decision to recognize same-sex marriages.

But Grassley had not the Massachusetts cases in mind, but rather the Prop 8 case, Schwarzenegger v. Perry, in which a state constitutional amendment limiting marriage to a man and a woman violates the federal constitution.  On this point, Perry is the opposite of the Massachusetts cases: whereas Mass v. HHS asserted a state’s traditional supremacy in marriage matters over federal statutory meddling, the plaintiffs in Perry seek federal supremacy over a popularly-passed state constitutional provision.

Where the two come together, however, is in Gill.  Just as the Perry plaintiffs seek cover of the federal constitution’s guarantee of equal protection, so did the Gill plaintiffs prevail on that very claim.  The difference, of course, is that Gill employs the federal constitution to strike down a federal law; the Perry plaintiffs seek to use the same provision to strike down a state law.

But that may be a distinction without a difference when it comes to an equal protection claim rooted in sexual orientation discrimination–a concept that had no popular support or force of law when the Court passed on Baker v. Nelson in 1972.  But Romer v. Evans and Lawrence v. Texas set the Court on the path towards looking at state marriage laws that make classifications between sexual orientations with similar suspicion to those that did so on the basis of race.  And the Court surely meddled in the state’s traditional power to regulate marriage when it did find enough of a substantial federal question in the anti-miscegenation statutes in struck down in 1967′s Loving v. Virginia.

The question now, however, is whether Justice Kennedy, the author of both Romer and Lawrence and the putative fifth vote in a gay marriage case, is willing to extend his sexual orientation discrimination jurisprudence the same way he has expanded his death penalty jurisprudence.  In other words, is recognizing a federal constitutional right for same-sex marriage more akin to sheltering juveniles from life without parole for non-homicide crimes, or is it more like deeming the death penalty at all times unconstitutional under the Eighth Amendment?  If the former, the Perry plaintiffs can take heart.  If the latter, Perry may fail to gain Kennedy’s approval, and Gill and Mass v. HHS will become the preferred precedents in the fight for marriage equality.

Either way, though, Grassley’s implication that marriage, unlike criminal law, remains free from federal constitutional scrutiny rests on shaky historical foundations.  But then, if we take that notion seriously, what does that say about Tauro’s opinions today?

An Inspiring Sight for All

Posted in Case Reports, Kagan Nomination, Law and Politics by Mike Sacks on July 1, 2010

My latest–and final–ABA Journal online column from the Court’s 2009-10 term is now live:

Solicitor General Elena Kagan’s first unabashedly straight answer of her confirmation hearings to become a Supreme Court justice came early in her 17 hours of questioning by the Senate Judiciary Committee this week. Ninety minutes into Kagan’s interrogation, Sen. Herb Kohl, D-Wisc., asked her for her opinion on cameras in the Supreme Court.

“I think it would be a terrific thing to have cameras in the courtroom,” said Kagan (Video). “When you see what happens there, it’s an inspiring sight…It would be a great thing for the court and a great thing for the American people.”

Twenty-four hours earlier, I was sitting inside the court witnessing its final session of the term. Like a dozen times before, I had sat through the night on the pavement outside to be among the few who would catch a glimpse of the inspiring sight to which Kagan, by virtue of her office, had a front row seat all this year.

But on Monday morning, I would have traded all of my own fond memories of new friends made and stories told over the past six months for the whole country to have seen the same moving scenes I saw.

Read the rest here.

Rosen on Brandeis in TNR

Posted in Kagan Nomination, Law and Politics by Mike Sacks on June 29, 2010

Jeffrey Rosen has a very long, but very good, essay/review in The New Republic of Melvin Urofsky’s Brandeis biography.  Entitled “Why Brandeis Matters,” the piece begins with an examination of Brandeis’s crusade against corporate and governmental bigness as applied to the Roberts Court’s reflection of today’s current economic and political climate and ends with an account of his Zionism as symbolic of his devotion to cultural pluralism.

In between these sections, Rosen provides a timely passage for the Kagan hearings:

In addition to combining judicial restraint with passionate anti-corporate progressivism, Brandeis’s Liggett dissent exemplified a third aspect of his judicial philosophy: his commitment to interpreting the ideals of the Founders in light of the entire range of constitutional history. In this sense, Brandeis provides an inspiring model for citizens today who are searching for an alternative to the rigid originalism championed by some Roberts Court conservatives, and also for an alternative to the untethered “living constitutionalism” of some Warren Court liberals. Brandeis combines elements of originalism and living constitutionalism into an approach that might be called living originalism.

Brandeis believed that the values of the Founders were immutable, but had to be translated into a very different world in light of dramatic changes in society, technology, and economics. He believed in constitutional change—in a talk called “The Living Law,” he charged that the law had “not kept pace with the rapid development of our political, economic, and social ideals” and said “the challenge of legal justice [was] to conform to our contemporary conceptions of social justice.” But Brandeis insisted that efforts to render constitutional values in a contemporary vocabulary always had to be rooted in the text and in the broad unchanging ideals of the Framers. By interpreting the values of the Framers in light of progressive movements across the range of American history, Brandeis believed they could be preserved in a way that served the needs of citizens in the here and now—which is, after all, what the Constitution was written to do.

This “living originalism”–not to be confused with the “restrained activism” I discussed in the post below–was on display today as Solicitor General Kagan sought to bust the originalist/activist binary.

MONDAY MONDAY MONDAY!

Posted in Anticipation, Kagan Nomination, Supreme Court Side Walk by Mike Sacks on June 25, 2010

Monday’s going to be a doozy.  Last day of the term.  Stevens’s last day ever.  Decisions on Guns and God (Gays was decided yesterday), as well as a bit of man v. machine and what may be the financial industry’s own Citizens United.

But that’s not all!

About two hours after the Court lets out for its summer recess, the Senate starts its preseason tryouts with Elena Kagan.

I plan on being in the Courtroom and the hearing room.  And my liveblogging the latter will hopefully be made more colorful by my sleepless Sunday night on the Supreme Court Side Walk.

That’s right: I will be conducting a my own final F1@1F campout for the term.  I suspect it will be a fun one, as the Guns and God oral arguments had the earliest and most enthusiastic lines of the term – and Monday’s certainty of those decisions and the drastically warmer weather (plus the prospect of a stately nonagenarian screaming, “I’m Outta Here!” to a captive audience, tossing reams of paper into the air in a sign of aged defiance) point to a big turnout.

I’d love to see some F1@1F readers out there, too.  If you’re planning on coming to the sidewalk, please do let me know.

Retired Justices as Subs for Recusals

Posted in Kagan Nomination, Law and Politics by Mike Sacks on June 16, 2010

David Ingram of the National Law Journal is reporting that Patrick Leahy may push for retired justices to sit for cases in which other justices recuse themselves.

According to the article, Justice Stevens made this recommendation to Leahy (D-VT), the Chair of the Senate Judiciary Committee.

This seems to me a politically loaded suggestion.  There has already been much talk about Kagan’s potentially high recusal rate over the next few terms as the Court continues to hear cases that her office had briefed in the lower courts.  On divisive issues, Kagan’s absence would lead to 5-3 victories for conservatives or ideological deadlocks at 4-4.

I cannot imagine that the GOP members of the Judiciary Committee will agree to this plan.  If Kagan does not recuse herself on a case in which a conservative may be obligated to do so, two of the substitutes–Souter and Stevens–would be a fifth vote on the left.  It is not inconceivable that these two retired ringers could cut away at the Roberts Court’s business-friendly precedents, as the Court sometimes goes shorthanded on cases concerning corporations in which justices may own stock.

O’Connor, too, exited the Court to the left of Anthony Kennedy on campaign finance, church-and-state, abortion, and affirmative action cases – all issues that have been cut back since Alito succeeded her.  However, recusals on these cases are less likely.  That is, unless some advocacy group somehow finds a not-too-distant relative of Justice Scalia who is an abortion doctor in Nebraska that is willing to be a named plaintiff in a federal case.

Today’s PA Primary and the Kagan Confirmation

Posted in Law and Politics by Mike Sacks on May 18, 2010

If Arlen Specter loses his Democratic primary bid to Joe Sestak in Pennsylvania today, Elena Kagan’s confirmation hearings may be all the better for it.

Specter is already one of the few members of the Senate Judiciary Committee who takes seriously his duty to ask probing questions rather than offer partisan platitudes.  This did not change with his party switch from Republican to Democrat last year and subsequent demotion in SJC rank for the Sotomayor hearings.  If Specter loses today, however, don’t expect him to be a lame duck on the far end of the table: he may try to use the Kagan hearings as the perfect platform for a public capstone on his career.

This could mean that the Republican who helped sink Bork for saying too much will seek to correct a process that now values nominees who say nothing at all.  This could mean that the moderate Senate Republican whose party he stopped recognizing may feel a special duty to speechify over Justice Stevens, who Specter may see as his Supreme Court analog.  This could even mean that this time, Specter, with nothing to lose, rather than prod the nominee on her thoughts about cameras in the courtroom, will lead an insurrectionary C-SPAN army over to the Court to install them himself.

Of course, if he loses the primary, he may still run as an Independent, a la Joe Lieberman in 2006.  But then again, that may not change anything about what I’ve already said.

UPDATE: Spector lost.  For now, it appears he will not pull a Lieberman.  The broken confirmation system better brace itself for an extra special series finale this summer of the Adventures of Snarlin’ Arlen.

Welcome The Atlantic Readers!

Posted in Kagan Nomination, Law and Politics by Mike Sacks on May 11, 2010

Chris Good at The Atlantic’s Politics Channel quotes F1@1F in his post on whether Solicitor General Kagan will have to eat her fifteen-year-old words at her confirmation hearing.  Good concludes:

Perhaps she’ll avoid the tough questions. But if she does–if she tries not to get pinned down on how she views certain constitutional issues, that would almost certainly violate the spirit of her 1995 article. Then again, perhaps it’s the Senate’s responsibility to pin her down, and not hers to cooperate. After all, Kagan didn’t disparage Justices Breyer and Ginsburg for being on the receiving end of those “lovefests.”

Please, No Vapid Charade

Posted in Law and Politics by Mike Sacks on May 10, 2010

Solicitor General Elena Kagan, President Obama’s nominee to succeed John Paul Stevens as an Associate Justice of the Supreme Court, wrote in 1995 that the confirmation hearings had turned into a “vapid and hollow charade.”  Since she wrote those words, the hearings have only grown vapider and hollower.  And my initial thought upon last night’s official announcement that Kagan would, indeed, be the nominee, was that this summer we’d see the vapidest and hollowest hearings of them all.

It has become a truism that President Obama nominated Kagan not only for her youth, but also for her lack of a paper trail on our country’s hot-button political issues.  One may easily assume on this latter point that Kagan’s confirmation hearings will reflect her ideological guardedness.  She has given the public very little of her personal views, and what views she has revealed she may deflect as reflections of her bosses’ thinking in her capacities as law clerk to Justice Thurgood Marshall or as associate White House counsel to President Bill Clinton.

But there are several reasons why Kagan’s confirmation hearings may not be the sequel to Robo-Soto, last summer’s impossibly boring C-SPAN blockbuster.

First, Elena Kagan is not Sonia Sotomayor.  Kagan will not inspire among Republicans on the Senate Judiciary Committee the same fear of runaway identity politics as Sotomayor had done even before her “Wise Latina” remark became the shorthand buzzword for a judicial activist supercharged by minority status.  No matter how many times her inquisitors invoked Miguel Estrada to prove they did not fear Sotomayor for her ethnicity, there remained the palpable sense that Sotomayor had to convince skeptic Senators that she would not reshape our laws to comport with a caricatured Hispanic’s-eye view of America.

In contrast, Kagan’s lack of “otherness” will keep the Senators from framing her liberalism as springing from such “illegitimate” sources as identity and experience.  Kagan will have a freer hand, then, to pitch her liberal jurisprudence–if she has one–without giving her antagonists the opportunity to hit a race-and-class-based home run.  On the other hand, however, Senate Republicans may not have the same reticence to attack Kagan when no fear exists of their being branded racist.

Second, if the Senate Republicans come out swinging against Kagan’s personal stance as Dean of Harvard Law School in banning military recruiters from campus over “Don’t Ask, Don’t Tell,” then Obama wins.  In the absence of any record on Kagan’s abortion views, her antagonists will sieze her views on gays in the military to rally social conservatives in time for the midterm elections.  But this line of attack appears to be a loser: appeals to God, guns, and gays lost their power after the 2004 Presidential election.  With DADT support dwindling and our top military leaders calling for its repeal, the fact that the Court unanimously held against a coalition of law schools’ 2006 constitutional challenge to the Solomon Amendment–which tied federal funding to allowing military recruiters on campus–will mean little to the public.  Rather, the senators will appear to be simple homophobes engaging in impotent political anachronisms.

Third, Kagan’s comments on the confirmation process as a “vapid charade” will come back to haunt her.  She may turn this into a good thing if she defends rather than disowns her fifteen-year-old statement.  Certain senators may feign offense and indignation, but if she can frame her condemnation as one against nominees and senators, Democrats and Republicans, then perhaps we may see the first few rays of honest reckoning with our broken process since Clarence Thomas condemned it as a “high tech lynching.”  But whereas Thomas’s comments came from his particular experience before the Committee, Kagan may speak to the less personal, but no less destructive impact our substance-less confirmation hearings have had on our country’s conversation about law and politics.

Now, do I think any of this is going to help our current state of the Senate’s advise-and-consent role?  No.  If Obama wanted a referendum on a quarter-century of confirmation wars, he would have nominated Judge Diane Wood to step up to the Senate and defend her abortion and religion decisions against Senator Sessions’s simple-minded slogans.  Instead, Obama selected someone who, like then-Judge John Roberts before her, can charm her way past the gatekeepers without saying too much.

Still, I hold out hope for a surprise.  If a Supreme Court nomination does not amount to an ideological change on the bench, then at the very least it should spur a systemic shift in the confirmation process.

Kagan’s the Nominee

Posted in Law and Politics by Mike Sacks on May 9, 2010

NBC News is reporting that Solicitor General Elena Kagan is Obama’s nominee to succeed Justice John Paul Stevens.

UPDATE: I’m looking forward to seeing how Obama will describe Kagan as the best person for the job.  Tom Goldstein at SCOTUSBlog has a lengthy discussion on what to expect after tomorrow’s formal announcement at 11am.  My immediate thought is that if we thought Sotomayor perfected the post-Bork robo-nominee act last summer, we’ve got another thing coming.  I’m bracing myself for full-fledged opacity coming from her side of the hearing room as the senators continue more of the same old charade from the last two decades.  It didn’t have to be this way, and I hope Kagan will surprise us, but it seems as though Obama chose to continue following this bit of script in exchange for departing from the de facto federal appellate judge resume requirement.

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