FIRST ONE @ ONE FIRST

Blackman on “Constitution Land”

Posted in F1@1F Friends by Mike Sacks on April 1, 2011
This morning I noticed that my friend, Josh Blackman–indefatigable law blogger and President of the Harlan Instituteissued a press release announcing that the Harlan Institute is planning a theme park dedicated to the Constitution–Constitution Land. Incredulous, I chatted with Josh about it.  The interview is below.

  • Sacks: Constitution Land?
  • Blackman: Constitution Land is a theme park that the Harlan Institute is currently planning. This park will will immerse “we the people” in the Constitution of the United States. Through virtual reality simulators, thrill rides, and entertaining shows, visitors will be able to experience our Constitution, and the Supreme Court, unlike ever before.
  • Sacks: Really?  A Constitution theme park?  I didn’t realize you were that much of a fundraising machine.
  • Blackman: Our supporters realize that interest in our Constitution is greater today than at any point in memory. We see people actually reading from that document and asking how it affects our rule of law and the government. Constitution Land represents an attempt to quench that curiosity in a fun and innovative way.
  • Sacks: Do you think people will actually visit?
  • Blackman: If we didn’t think people would visit, we would not be working on this ambitious plan. People visit Colonial Williamsburg and other historical sites. But there is no entertaining destination dedicated solely to our Constitution. We believe that Constitution Land will target that niche. Specifically, our planned location in Valley Forge, Pennsylvania is proximal to the Philadelphia, the cradle of liberty, and home of countless museums and national parks.
  • Sacks: Are you actually going to build rides, or will this be more of a museum?
  • Blackman: This is not your forefather’s museum. This is a fun theme park in every sense of the word–except you may just learn something. In addition to exhilarating thrill rides based on landmark Supreme Court cases, Constitution Land will feature virtual reality simulators that explore how cases developed, and what will become of our law. Finally, shows, and first-rate accommodations will make a visit to Constitution Land a must for anyone who wants to learn more about the supreme law of the land.
  • Sacks: What ride do think will be the biggest draw?
  • Blackman: I think the Originalist Time Machine virtual reality simulator will be pretty sweet. What would James Madison think about violent video games, gun violence, or mandating the eating of broccoli? With the Originalist Time Machine, you can ask Founding Fathers avatars–which are programmed based on their writings and philosophies–what they think about contemporary constitutional questions. Justice Scalia may definitely take a spin on that ride.
  • Sacks: As long as he’s not tailgating the teacup in front of him!  I should be incredulous after all these details, but I’ve learned never to doubt your grand plans.  And you know my family’s in Philly, so when can I take my little nephew to Constitution Land?
  • Blackman: While we are very early in the planning phase, we intend on breaking ground on Constitution Day, September 17, 2012.
  • Sacks: Constitution day…nice touch.
  • Blackman: Mike, I will save a seat in the first row of the Gibbons v. Ogden Flume Ride for F1@1F.
  • Sacks: Most excellent, Josh.  Good luck.
  • Blackman: Thanks Mike.

Blackman’s a beast.

Road Trip, FantasyCast, Arena Tour!

Posted in Non-justiciable, Supreme Court Side Walk by Mike Sacks on October 10, 2010

The First Lady of First One @ One First and I just returned from a weekend trip to Philly.  We left on Friday, just in time for her to be a captive audience to the Court’s just-released audio from last week’s oral arguments.  But moments into Snyder v. Phelps, her initial reluctance gave way to rapt attention and demands to “pause it!” so she could give her own impressions of the issue at hand.  She enjoyed the back-and-forth of the justices and advocates so much that when we hit the road today, she asked to pass the time at the toll booths with Connick v. Thompson.

For those who do not have an hour on hand to subject your special someone to the full SCOTUS treatment, Josh Blackman of The Harlan Institute has produced a thirteen minute “FantasyCast” of Snyder as part of the Institute’s FantasySCOTUS project.  In it, he compiles the argument’s audio highlight reel to create a very effective summary of what transpired last Tuesday morning.

Despite his job well done on the FantasyCast, however, I know Josh would agree that the full hour’s argument is worth the listen.  To put the FLOF1@1F’s enthusiasm in context, it took her three years to tune her ear to the differences between AC/DC’s Bon Scott and Brian Johnson eras, but only two hours to correctly identify each justice by voice.  If she’s proven more fit for the Supreme Court Side Walk than the Heavy Metal Parking Lot, I’m certainly not complaining.  In fact, should her response be typical for non-SCOTUS obsessives, then the Court should consider augmenting its annual budget with some lucrative summer arena tours.  Talk about two birds, one stone: the justices would be able to quit their annual Congressional grovel for pay raises, and the peoples’ increased opportunity to watch the Court in action would quell some of the cries for cameras in the courtroom.

“The Story” w/ Dick Gordon Interview

Posted in Non-justiciable by Mike Sacks on April 28, 2010

I just got back from Doe v. Reed.  A really great bout to end this term’s oral arguments.  I’ll have my ABA Journal piece up later today.

In the meantime, check out my interview on American Public Media’s “The Story” with Dick Gordon.  The segment begins at 31:00.  If you’d rather go terrestrial, click here to find airtimes for “The Story” on your local NPR affiliate.

Finally, Justice Kennedy made me eat my words with his opinion in in Salazar v. Buono. No time to do an opinion analysis on it right now, other than to note how fractured the majority coalition was:

KENNEDY, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., joined, and in which ALITO, J., joined in part. ROBERTS, C. J., filed a concurring opinion. ALITO, J., filed an opinion concurring in part and concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. BREYER, J., filed a dissenting opinion.

For more on Buono, check out Josh Blackman’s instant analysis.

Friends of F1@1F

Posted in F1@1F Friends by Mike Sacks on April 2, 2010

One of the most gratifying parts of this project has been meeting all sorts of people in the early morning line.  And as it turns out, I’m not the only person who goes home and writes about the experience.

I offer anyone who has stood in line with me–or in line without me–who has written about his or her experience at the Court to send me a link, and I will post it here.

The first blogger in my Friends of F1@1F feature is Brandon Forbes.  Forbes was twenty-sixth in line for Tuesday morning’s arguments and blogs at Good Gov, Y’all.  He recapped his experience outside and inside the Court with an entry titled, “Sitting Courtside, Breyer & Scalia Give Me Hi-Fives,” in which, among other things, he posited his own thoughts on a conversation we had while shivering on First Street:

In our pre-dawn discussion, Mike voiced his love of The Brethren, an Armstrong and Woodward SCOTUS tell-all that caused much controversy when it was published in the ‘late 70s with its inside look at the Burger Court and which I tried to read in high school and now need to re-read. Anyway, he made an interesting case for Potter Stewart as being the last “pure judge” on the Court, meaning, I think, that he was appointed outside of the ideological box that has been present in judicial discourse since the late ’70s. One could make the case that Stevens also fits this bill, at least at his appointment, though he has drifted further and further to the left in reaction to the Rehnquist/Scalia conservatism that emerged in the late ’80s, a conservatism which now generally wins if the current Court splits 5-4 (see Citizens United). I’d like to look into this more, but my initial thought is that Roe might be responsible for this divide, much in the same way as West Coast Hotel v. Parrish could be seen as the dividing line for the modern interpretation of the Commerce Clause. In other words, judges appointed after Roe have the ideological boxes of the culture wars to deal with before they get on the Court just as judges after West Coast Hotel had the necessity of having a robust interpretation of the Commerce Clause as requisite for getting on the Court. But maybe that’s a bit of a convoluted analogy. A way to say it simpler might be: Roe v. Wade has been the benchmark case since 1973 for determining who gets on the Supreme Court (either supportive or against), and Stewart didn’t have to deal with that hanging over his confirmation. Interesting discussion, anyway.

I do, in fact, believe that Justice Stevens does fit the Stewart mold, but Brandon makes a good point that this has been obscured by the Court’s post-Roe politicization, in which the Court, as Jeffrey Toobin recently noted, “has become a partisan battlefield.”

Indeed, Stevens has consciously strived for the survival of Stewart’s legacy despite the rise of rigid ideology on the Court.  As Jeffrey Rosen wrote in 2007,

Stevens, however, is an improbable liberal icon. “I don’t think of myself as a liberal at all,” he told me during a recent interview in his chambers, laughing and shaking his head. “I think as part of my general politics, I’m pretty darn conservative.” Stevens said that his views haven’t changed since 1975, when as a moderate Republican he was appointed by President Gerald Ford to the Supreme Court. Stevens’s judicial hero is Potter Stewart, the Republican centrist, whom Stevens has said he admires more than all of the other justices with whom he has served. He considers himself a “judicial conservative,” he said, and only appears liberal today because he has been surrounded by increasingly conservative colleagues. “Including myself,” he said, “every judge who’s been appointed to the court since Lewis Powell” — nominated by Richard Nixon in 1971 — “has been more conservative than his or her predecessor. Except maybe Justice Ginsburg. That’s bound to have an effect on the court.”

In his one of his final written opinions, Justice Souter, another judge in the Stewart–if not Harlan II–mold of judicial conservatism, planted a seed of wisdom for future justices who follow in his and Stevens’s footsteps once today’s age of politically-aligned ideology subsides:

Changes in societal understanding of the fundamental reasonableness of government actions work out in much the same way that individuals reconsider issues of fundamental belief. We can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally. Just as attachment to the familiar and the limits of experience affect the capacity of an individual to see the potential legitimacy of a moral position, the broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary to the point of being unconstitutional. The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.

The whole dissent is worth reading.  I am convinced that a generation from now, Souter’s parting words will steer a Court that reflects a society confident enough to allow a judge to judge, rather than force a justice to fit facts into predetermined ideological frameworks.  Just as Harlan and Stewart, both Eisenhower nominees, entered the Warren Court comparatively conservative to their stridently liberal brethren but now appear to be sober moderates, so too will Stevens and Souter be remembered as moderate despite their reputation as liberals from serving in a politically distorted age on the Court.

In other words, the principled judging qua judging of Harlan, Stewart, Stevens, and Souter has been an enduring casualty of the Warren and early Burger Courts’ politically liberal overreach and the subsequent politically conservative overcorrection of the Rehnquist and early Roberts Courts.

But I don’t think it is too offensive for this Jew to say on this Easter day that the moderates’ jurisprudence will be resurrected by a confident public that trusts judges’ judgment and votes for Presidents and Senators that reflect America’s transcending the current culture wars.

If this vision of the late Roberts Court looks more like the apocalypse scenes in the Book of Revelations than the Gospel, then you should check out Josh Blackman’s blog.  Blackman and I got to know each other as we liveblogged the McDonald line.  In addition to his libertarian-originalist blogging and his FantasySCOTUS league, Blackman has beatified, through non-profit incorporation, the first Justice Harlan as the Court’s proto-originalist.  Through his Harlan Institute, Blackman seeks to deepen schoolchildrens’ understanding of the Constitution–an honorable goal, even if in pursuing it, he hopes to perpetuate a particular ideology into the next generation that gets in the way of my own vision for how we view the Court and politics.

But I come not to quibble the future with Josh, but rather to praise his prankster skills.  Yesterday, he posted a story titled, “FantasySCOTUS.net to receive 30 min advance notice before opinions issued to curb cheating“:

When I mentioned this unfortunate fact [of FantasySCOTUS cheating] to friends at the Supreme Court, they clued me into a little known SCOTUS secret.  Certain reporters, news agencies, and blogs, receive 30 minute advance notice before opinions are issued. While the Court does not release the holding of the opinion, the Clerk of the Court sends a brief e-mail, listing the opinions that will be issued.

At first I was incredulous, and didn’t believe this was possible. But at some point during the Rehnquist Court, Nina Totenberg, the doyenne of One First Street, used her enormous clout to push for this privilege. She was tired of hiking to the Court on days when lousy opinions were issued. Once she asked for it, the Court could not say no. Apparently, Lyle Denniston at SCOTUSBlog has been receiving these tips for years. No wonder he is always able to get post such thorough summaries so quickly.

Like any cert grant, in order to qualify for this special privilege, the Rule of 4 applies.  Justice Sotomayor came through, and joined the Chief Justice, Justice Alito, and Justice Thomas. Apparently the Junior Justice is a serious Fantasy Sports fan, and fell in love with the league, and was appalled that people would cheat. Sadly, Justice Scalia decided to recuse, due to some of my recent publications criticizing his views in McDonald.

Justice Breyer, joined by Justice Stevens and Justice  Ginsburg, dissented from the issuance of our petition. He does not seem to be a fan of FantasySCOTUS.net. In a verbose opinion, he wrote that while liberty must be active, fantasy court leagues must be passive, and we were not worthy of this privilege. Paraphrasing Chief Justice Roberts famous admonition from Parents Involved, Justice Breyer wrote “the way to end lame fantasy sports leagues is to end lame fantasy sports leagues.”

That’s a hell of a clever April Fools’ joke.  Seems credible at first, but steadily slides into farce and, ultimately, self-deprecation.  Very good stuff.

If you have written about your SCOTUS experience, please do send me the link.  If I get a few more stories, I will also add an F1@1F Friends link to my blogroll.

UPDATE: Josh Blackman writes in,

“Nice dig at Harlan [Institute] ;).  It really isn’t ideological.  [Harlan Institute's] not about institutionalizing originalism. Its about teaching about the history of the constitution to influence decisionmaking. There is a difference.  If I do my job right w harlan, kids will learn enough about history to make themselves informed and need not reach the results I wish.”

I quibble no longer: that’s an absolutely honorable goal.

UPDATE II: Brandon Forbes, Duke Divinity School ’03, writes,

Easter is actually on Sunday. Jesus is still technically “dead” right now. The Christians will be unhappy if you resurrect him too soon.

Point taken.  I’ll be sticking to my matzoh from now on.  At least Brandon and I will be on the same page for who to root for in the Final Four tomorrow.

UPDATE III: One day after this post, the NYT has published an interview with Justice Stevens by Adam Liptak.  Along with getting even closer to Justice Stevens’s internal deliberations upon his perhaps-imminent retirement, the interview also gets to Justice Stevens’s self-conception as a judicial conservative by touching upon his majority opinion in Kelo and the final paragraph of his Baze v. Rees concurrence:

His views have generally remained stable, he said, while the court has drifted to the right over time. “To the extent I look back at earlier situations,” he said, “I really don’t think I’ve changed all that much.”

Often, he added, the law requires a certain result, as in the court’s 2005 decision in Kelo v. City of New London, which allowed local governments to use the power of eminent domain to take private property for business development.

“The Kelo case was one of my most unpopular opinions, and that was one where I thought the law really was pretty well settled on the particular point,” he said.

Asked if he would have answered the question presented in the case differently had he instead been a legislator, Justice Stevens said probably yes.

[...]

In the area of capital punishment, though, he said his views had shifted.

“I certainly would not have expected during my first years on the court to have written an opinion like I did in Baze,” he said, referring to Baze v. Rees, the 2008 decision that rejected a challenge to lethal injections. Though Justice Stevens voted with the majority, he wrote that he had come to the conclusion that the death penalty violates the Eighth Amendment. He went on to say that his conclusion did not justify “a refusal to respect precedents that remain a part of our law.”

He explained Friday why he did not follow the approach of Justices William J. Brennan Jr. and Thurgood Marshall, who adopted a practice of dissenting in every death penalty case.

“I’m still a member of the court, and I still have to work,” Justice Stevens said. “I never really agreed with Justice Brennan and Justice Marshall that your own personal view on the issue should prevent you from participating. You’re still a member of the team, and the team has to confront the problem.”

But that did not mean Justice Stevens, who in 1976 voted to reinstate the death penalty, was satisfied with the court’s capital jurisprudence.

“There are a number of death cases that troubled me,” he said. The Baze opinion, he added, “was really my reaction to the developing jurisprudence, which I think moved in a direction that I didn’t expect and is not correct.”

Pre-McDonalding

Posted in Anticipation by Mike Sacks on March 2, 2010

Just got home from nearly 24 hours out on the pavement.  The company was wonderful all night and the line got mega-long come daybreak.

Despite my pout above, I am honored to claim Third One @ One First behind Rob and Larken.  They flew out from Malibu, CA, to see McDonald and hit the concrete at 5:30am yesterday.  Champions, both of them!

A few notes:

  • Look for Adam Liptak of the NYT to scoop my vox populi column tonight or tomorrow.  He came out last night and this morning to cover F1@1F and the line experience more generally.
  • There were far fewer gun rights supporters in line than I expected.  I deeply enjoyed getting to know those who were there, however.
  • Huge thanks to ABA Journal for buying the line pizza last night!
  • Thanks to Josh Blackman for teaming up with me to deliver some fun overnight coverage.  Check out joshblackman.com for some more video and commentary.
  • Dick Heller came out to entertain the linegoers last night and this morning.  He was especially a hit among the fifteen high schoolers from Cupertino, CA, that braved the cold overnight wait.
  • Predictions for McDonald are all over the place, from 5-4 to 9-0.  The only thing everyone agrees upon is that the Second Amendment will be incorporated against the states.
  • Finally, I think I got the makings of the first Supreme Court Side Walk episode.  I hope to have it up here in some fashion by the week’s end.

Time to dethaw, get clean, suit up, and head back out.

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With Our Powers Combined…

Posted in Anticipation by Mike Sacks on March 1, 2010

Josh Blackman (FantasySCOTUS and joshblackman.com) and I are combining forces for total overnight domination.

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