The shooting of Representative Gabby Giffords in Arizona this weekend and the flurry of constitutional commentary upon the start of the 112th Congress–including talk of repealing or altering the 14th, 16th, and 17th Amendments and, thanks to Justice Scalia, a renewed call for an Equal Rights Amendment–has led me to think about what would happen if there was a push for a new constitutional amendment that would repeal the Second Amendment (2A). Indeed, just a few of hours ago, Elie Mystal at Above the Law went there. The more I think about it, the more it appears that such a repeal effort would paradoxically lead the most passionate gun rights advocates to embrace the dissenters’ views in Heller and McDonald in ways never anticipated by Justice Stevens et al.
The 2A, literally read, tethers gun ownership to militia membership, however hard the Heller majority tried to convince us otherwise by marginalizing the Amendment’s militia-speak as a “prefatory clause.” Because we had no standing federal army at the time of the 2A’s ratification, and because states formed militias comprised of each state’s able-bodied men, individuals needed the right to own guns in case a tyrannical federal government did raise an army to invade the states.
But if we were to take Sharron Angle’s incendiary and irresponsible “Second Amendment remedies” quip from this summer in a charitably originalist manner, then those remedies mean the right of any people to rise up in revolution against a tyrannical government. This right is explicitly stated in our country’s Declaration of Independence and endorsed by Thomas Jefferson with his quote, “[t]he tree of liberty must be refreshed from time to time with the blood of patriots.” And, unless an American revolutionary wants to wage guerrilla war or commit acts of terrorism, the accepted way to do this is to form militias, armed by individuals exercising their 2A rights, to engage in conventional warfare with the federal government. Of course, just because the right to rise up in revolt exists doesn’t mean the cause is actually righteous or that the federal government cannot seek the perpetuation of its own just existence by putting down the revolt. See, e.g., the Whiskey Rebellion or the Civil War.
Now, it’s currently unimaginable to think of Congress as currently situated ever passing a 2A repeal amendment, let alone finding 38 states willing to ratify it. But if we can get past that hurdle of unimaginability, it’s absolutely imaginable that some states and certainly many individuals would consider Congressional passage of a 2A repeal amendment, whether or not it is ratified, to be a tyrannical act by the federal government that threatens to take away both a fundamental right to bear arms as interpreted by the Supreme Court as well as a mass taking of legally obtained property without just compensation.
And here comes the paradox: anti-repeal states could very well then vindicate liberals’ 2A interpretation by calling up “well-regulated militias” to “secure” their “free states” comprised of individuals who, in joining the militias, are exercising their “right of the people to keep and bear arms.”
In other words, an amendment to take away peoples’ guns could trigger the very scenario, in the eyes of Second Amendment supporters, that the framers imagined in drafting the Second Amendment. In creating that scenario, then, gun owners would throw into relief through actual practice just how unoriginalist Scalia et al. were in their theory supporting the Heller majority.
I believe both components of this scenario–(a) the passage of a repeal amendment in Congress that (b) will trigger the mainstreaming of the militia movement–will never come to pass. As an intellectual exercise, however, it’s worth thinking through possible consequences of our responses to heinous acts such as the one that took place this weekend in Arizona.
If the shooting inspires enough political momentum for Congress to re-up the statutory Federal Assault Weapons Ban and inspire state and local governments to strengthen their gun regulations, then it is worth looking to the Court for how politics has and will influence its shaping of the Second Amendment.
Heller could not have been decided the way it was had it not been for the rise in the last half-century of the “individualist” narrative. Whether or not that narrative constituted “fraud,” as Chief Justice Burger stated from retirement in 1991, it became a tenet of modern conservatism and so mainstream a strain of American political thought that many Democratic politicians–including then-Senator Barack Obama, former Senator Russ Feingold, and Representative Gabby Giffords–supported Heller‘s result. In essence, the conservative majority in Heller may have inflamed the half of the public rooting for the “collectivist”–or militia-based–interpretation, but the political winds had pushed the Court’s decision into safe harbor.
Had the liberal dissent prevailed in Heller, the country would have had a massive administrability problem that could have quickly descended into political chaos and violence. Who gets to keep his or her guns? What guns remain protected? Can the federal government, finding militias anachronistic, ban guns altogether throughout the country?
While the Heller decision is often rightly explained in ideological terms, it still got the pragmatics right: it relieved the country of its polarized, zero-sum politics over gun rights on the side of least ideological and practical resistance, while defining the right so narrowly as to leave for later cases the true scope of reasonable regulations of the individual right to keep and bear arms for self-defense.
It remains easy to imagine that a Democratic nominee to Justices Kennedy’s or Scalia’s seat could lead to a reversal of Heller or so broad an acceptance of reasonable regulations as to limit Heller to its specific facts. But now that this country’s steady stream of massacres has finally flooded into Congress and the Judiciary with the shooting of Rep. Giffords and the slaying of Chief Judge John Roll, perhaps the Court as presently constituted will be inspired by Justice Breyer’s Heller dissent to look more kindly upon state, local, and federal gun regulations than they would have had such violence remained for them a political and legal abstraction.
UPDATE: Josh Blackman responds.
UPDATE II: Michael Doyle of McClatchy has an article headlined, “Arizona shootings unlikely to change federal gun laws.” (h/t How Appealing)
UPDATE III: Jo Becker & Michael Luo of the New York Times posit Tucson’s gun culture against federal regulatory efforts.
READER DISCRETION ADVISED:
THIS POST IS RATED “M” FOR MATURE.
FOR GRAPHIC DESCRIPTIONS OF VIOLENCE AND VISCERA.
First-time lawyers before the Supreme Court invariably comment about the close distance between their lectern and the justices’ bench. How close? For Zackery Morazzini, California’s Supervising Deputy Attorney General and the state’s advocate in this morning’s oral argument in Schwarzenegger v. Electronic Merchants Association, this close:
For half an hour, at least six justices appeared to be engaging in their own first-person shooter games, each directing his or her barrel down at Morazzini’s argument that ultra-violent videogames are not protected by the First Amendment. And Morazzini was asking the Court to adopt an unprecedented expansion of its obscenity doctrine beyond its sex-based bounds, putting him so snugly within the justices’ sights that they didn’t even have to take aim to score their fatal shots.
Justice Antonin Scalia pursued Morazzini as if the lawyer had kidnapped the justice’s brother. Like any game that can trace its roots back to Wolfenstein 3D–the father of first-person shooters–Scalia’s pursuit featured increased firepower with every deadly blow. His first line of questions merely exposed the difficulty in cabining the principle behind California’s laws just to video games, setting up Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan each to empty their revolvers: are Grimm’s fairy tales too violent? Comic books? Movies? Rap Music? Bugs Bunny?
From sight unseen leapt Justice Stephen G. Breyer with a flak jacket for Morazzini. If the shooters wanted a line drawn, he’d draw them a line: if the virtual gore is too violent for an 18-year-old, then it’s too violent for all minors, period.
But Breyer’s suggestion came just as Scalia and company were upgrading their weaponry. Kagan stalked Morazzini into a corner, forcing him to admit that juries are responsible for determining what is and isn’t too violent for minors. At this suggestion, Scalia brings out the shotgun: Cold Steel Originalism. With almost caricatured irascibility, Scalia said, “You are asking us to create a — a whole new prohibition which the American people never – never ratified when they ratified the First Amendment.”
At that point, Justice Samuel A. Alito attempted a diversion. “Well,” he said, “I think what Justice Scalia wants to know is what James Madison thought about about video games.” But the two conservative justices will have to save their internecine peppershot over the limits of originalism for the footnotes of this case’s ultimate opinions: pushing through the audience’s laughter–and we all know laughter heals lawyers’ bleeding, bullet-riddled craniums–Scalia insisted, “No, I want to know what James Madison thought about violence.”
Morazzini wasn’t destined to survive this onslaught. Not with Sotomayor pointing a double-barrel point-blank at him, tersely demanding specific dates for specific statutes banning speech. When he had no answer, he might as well have slumped down, lifeless, his skull fragments piercing the wooden bench before him. Instead, Justices Scalia, Sotomayor, Kagan, and Ginsburg spent the remains of Morazzini’s time gleefully smearing themselves in his splattered bits of brain.
Chief Justice John G. Roberts stayed out of the game for nearly all of Morazzini’s argument. But when Paul Smith of Jenner & Block stepped forward to argue against the California statute, the Chief pressed play. Roberts wrote last term’s 8-1 opinion in United States v. Stevens, in which the Court refused to create a First Amendment carve-out for depictions of animal cruelty. The Chief made clear today, however, that a child’s interactive destruction of virtual human life is far more nefarious than videos of real pit bulls mauling the jaws off of real wild hogs.
To make his point, the Chief lodged an entire clip of heavy metal deep into Smith’s argument that there is no American tradition of legally shielding children from violent expression.
Graphic violence. There is a difference. We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they’ll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down. I’m reading from the district court description: Pour gasoline over them, set them on fire and urinate on them. We do not have a tradition in this country. We protect children from that. We don’t actively expose them to that.
With Scalia, Ginsburg, Sotomayor, and Kagan sitting in gore-phoriac stupors from the first half-hour, Alito and Breyer grabbed the weapons and ran at Smith. Alito first took another shot at Scalia’s originalism, then moved on, his voice thick with sarcasm, to “clarify” Smith’s position:
And you say there is no problem because 16-year-olds in California never have $50 available to go buy a video game, and because they never have TVs in their room and their parents are always home watching what they — they do with their video games, and the parents — and the video games have features that allow parents to block access to — to block the playing of violent video games, which can’t be overcome by a computer-savvy California 16-year-old, that’s why there is no problem, right?
Breyer then charged ahead, framing the issue not as one of creating a new category of expression unprotected by the First Amendment, but rather as one of traditional First Amendment analysis, in which the restriction on speech must be narrowly tailored to meet a compelling state interest. Breyer’s bayonet caught Smith off-guard and soon Alito and Roberts were stabbing away. Even Sotomayor, now roused, poked at Smith a bit, but her pokes largely served to startle Smith into a tactical concession so that he could return to his stronger defenses.
Ultimately, however, it was Justice Anthony M. Kennedy who lit the match that may, one day, burn this whole damn grindhouse to the ground. The Court’s obscenity jurisprudence, upon which California’s chances live or die, has no place in the First Amendment, however unprotected appeals to the prurient interest may have been in America’s more puritanical past. And Kennedy today took the Court’s first steps towards an outright rejection of its obscenity doctrine since Justices Hugo Black and William O. Douglas originally warred against its formulation fifty years ago.
The transcript, however, robs Kennedy of his intent so evident to those who watched him on the prowl this morning. For instance, a reader could believe that Kennedy meant to endorse California’s law by repeatedly asking questions such as, “Why shouldn’t violence be treated the same as obscenity?” But these questions were couched in his broader observations that “the Court struggled for many, many years and to some extent is still struggling with obscenity.” These are words of condemnation, not of endorsement. They recognize that Roth‘s edifice has rotted, if it wasn’t rotten from the very start. And if California succeeds in housing its law in a rotten hellhole, so be it: sooner or later, the Court will make ashes of it all.
But Kennedy’s overtures will be left for another year, if any obscenity case ever manages to climb high enough to reach the Court. Today, all that mattered was that more justices killed more of California’s law than they did its challengers.
Indeed, that Morazzini managed to reassemble his skull and its contents for his rebuttal only gave Sotomayor more ammo with which to re-splatter his brains all over the Chief Justice. Said Sotomayor:
So what happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle. Is that covered by your act? Because they haven’t been maimed and killed forever. Just temporarily.
Just temporarily is right. Until the Court brings obscenity within the First Amendment’s protections, these cases will continue, like zombies and vampires, to rise from the dead, hungry to devour our brains and suck our blood even as we empty them of theirs over and over and over again.
The take-home from this morning’s oral arguments in NASA v. Nelson was simple: when the conservatives don’t buy into the right you’re asserting and your two most likely proponents can’t agree on how to agree with you, then you’re in trouble.
The issue was whether the Ninth Circuit erred in granting 28 employees of the Jet Propulsion Lab in Pasadena, CA, an injunction, based on a right to “informational privacy,” against the government’s use of open-ended questions as well as queries about drug treatment histories on standard background check forms introduced in 2005.
In the early minutes of oral argument it was apparent that both Justices Sonia Sotomayor and Ruth Bader Ginsburg were searching for ways to convince their colleagues to uphold the injunction. Problem was, they clashed over strategy.
Sotomayor was the first to interrupt Acting Solicitor General Neal Katyal’s argument with a broad, aggressive attack on the government’s policy.
“Could you ask somebody, what’s your genetic makeup, because we don’t want people with a gene that is predisposed to cancer?” Sotomayor inquired. When Katyal tried to duck the question, she cut to the point: “So what you are saying is, there is no limit?”
Before Katyal could wriggle out of reluctantly agreeing with Sotomayor, Ginsburg jumped in. Having served with the boys on the bench much longer than Sotomayor, she thought a narrower approach necessary to win their votes.
“The only thing that’s in contention there is the question about treatment or counseling. Nothing else. So why are we talking about the universe of questions that might be asked?” It was as if Ginsburg was telling Sotomayor to tone it down for fear of losing the Court’s right flank.
But the conservatives weren’t interested in narrowness or broadness. Not yet. They wanted to know a little more about this right of “informational privacy” thing.
Almost two decades ago, Justice Anthony M. Kennedy, the erstwhile savior of unenumerated privacy rights, famously wrote that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This morning, however, Kennedy found the JPL employees’ asserted right to informational privacy troublingly “ill-defined or undefined.”
Kennedy’s comment triggered a series of queries to Katyal, who was unwilling, to the frustration of Justices Antonin Scalia and Samuel A. Alito, to confirm or deny whether such a right exists.
So leave it up to Chief Justice John G. Roberts to successfully execute the bait and switch. With a friendly voice, he asked if the challenged questions about a history of drug counseling were required for the good of the employee. Katyal squarely answered in the affirmative, as if he was answering his former boss, Justice Stephen G. Breyer, who appeared this morning entirely sympathetic to such progressive paternalism. Big mistake.
“Whenever the government comes and says, ‘This is for your own good,’ you have to be a little suspicious,” said Roberts, eliciting reflexive laughter from the entire courtroom.
And with that comment, Scalia was left behind derisively grumbling about substantive due process as Alito and Kennedy joined Roberts in attacking on pragmatic grounds half of the Ninth Circuit’s injunction.
If during Katyal’s argument a consensus emerged against the government’s drug counseling history questions, then Pasadena lawyer Dan Stormer’s argument established a majority’s approval of the similarly enjoined open-ended questions.
Stormer maintained that these questions were inappropriate for low-level employees such as snack bar workers or bus drivers who perform no sensitive activities at JPL.
But what if a snack bar worker “has a big sign on his lawn that says, ‘I hope the space shuttle blows up?’” asked Alito in one of his signature absurd hypotheticals. When Stormer conceded that the government should know that information, Alito shot back. If open-ended questions are forbidden, he asked, then how does the government get at that information?
“Do you have to have a specific question on the form?” wondered Alito. One that, say, specifically asks, “Does this individual have a big sign on his front lawn that says, ‘I hope the space shuttle blows up?’”
Alito’s point was as funny as it was devastating.
Tom Goldstein at SCOTUSblog explains why he believes Acting Solicitor General Neal Katyal will be named the official Solicitor General. I agree with his analysis, but want to extrapolate a bit more: Katyal will be named SG with the specific purpose of priming him for a Supreme Court seat.
Now here comes my march of the “ifs”:
The said seat will not be open for quite some time. Justice Ginsburg, likely the next justice to retire, has no plans to do so for at least another five years. Assuming that Ginsburg remains healthy and that President Obama wins reelection, I also assume that Obama would replace Justice Ginsburg with a woman.
Whether or not Ginsburg proves to be the final retirement under Obama, if Katyal wants to leave the SG’s office before another Court vacancy, then I expect he will be nominated to a federal court of appeal. Doing so will bolster his position as a future SCOTUS nominee, even if Justice Kagan’s nomination straight from the SG’s office has proven federal judgeships unnecessary for a nominee’s confirmation.
If a fourth vacancy comes up before the 2016 election, then Katyal will be the pick. By age and political allegiance, Justice Breyer would be the most likely justice to voluntarily leave the bench during the Obama administration, especially if the country’s in a Republican mood leading into 2016. Doing so would leave room for Katyal, Breyer’s former clerk, to be a reliable successor while also becoming the Court’s first Indian-American justice.
Further, if there is no fourth vacancy under Obama and a Republican becomes president in 2016, Katyal, who is now only 40 years old, will be able to spend eight years building his reputation as a judge and still be young enough for a nomination in 2024. Then again, by 2024, Clarence Thomas would be the oldest justice at 76–hardly retirement age for justices these days.
So instead, Katyal’s placement as SG with an eye towards SCOTUS relies on the biggest “if” of all: the departure of Justice Scalia or Kennedy a) during a Democratic administration and b) before the retirement of Justice Breyer. This comes loaded with all sorts of assumptions, the most reasonable being a Democratic presidency beyond 2016–itself a far from a reasonable assumption. That said, in such an instance, Katyal could be the all-around perfect pick to thwart the full-on thermonuclear confirmation war expected to occur should either Scalia or Kennedy leave their seat–and the Court’s ideological balance–in Democratic hands.
Goldstein’s explanation of Katyal’s credibility from both the left and the right could serve just as well for a SCOTUS nomination as it does for an SG appointment:
Katyal is the Acting Solicitor General, having served as the Principal Deputy Solicitor General throughout the Administration. In the Clinton Administration, he served as National Security Advisor in the Department of Justice. He then was a very well known academic (focusing on national security questions) who also practiced before the Court. He was among a handful of lawyers who formed an advisory body to Barack Obama during the campaign. Katyal’s work before the Court was very highly regarded, including his victory in Hamdan v. Rumsfeld. (Another disclosure, I was co-counsel inHamdan, but my role was relatively minor.) Katyal’s reputation has been sterling, both within the Office of Solicitor General and in his interactions with the broader Department of Justice and the government generally. [...]
Katyal has broad support in the Republican legal establishment that should smooth the confirmation process. My intuition when I decided to write this piece was actually the opposite: that Katyal’s representation of Hamdan would present an obstacle to his nomination and confirmation. (Verrilli has somewhat similar issues, given that (like me) in private practice he generally appeared on the left-leaning side of cases.) But it turns out that conservatives have recognized that Katyal’s role in Hamdan was entirely appropriate and that he has an exceptionally strong record on national security questions. He not only worked on national security issues for the government prior to Hamdan, but as an academic supported the use of national security courts (with Jack Goldsmith), and he subsequently represented the Obama Administration in successfully arguing against both the challenge to rendition in the Arar case and the claim that habeas corpus rights should be extended to detainees held at Bagram Air Force Base (drawing criticism from the left and the New York Times editorial page). For conservatives rejecting criticism of Katyal’s work in Hamdan, see this piece by the Wall Street Journal editorial page; this piece by Reagan Solicitor General Charles Fried; and these articles quoting Ted Olsonand Richard Epstein.
Barring an actual conservative nominee or an indefinite hold on any nominee until the Republicans take back the White House, Katyal could be the best, most palatable nominee the Republicans could hope for from a Democratic administration.
Of course, a lot happens between election years and Supreme Court vacancies. Nominations themselves are entirely dependent upon political timing. But I would be surprised if the White House hasn’t discussed the very scenarios I outline above when talking about Katyal.
The Supreme Court broke its streak of pro-First Amendment decisions in today’s decision in Holder v. Humanitarian Law Project. This “very difficult case,” as Justice Kennedy described it at oral argument, was decided by a 6-3 vote in an opinion written by Chief Justice Roberts. Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor.
The opinion held that the First Amendment does not bar the criminal prosecution of the Humanitarian Law Project (HLP) under a federal statute criminalizing “material support” to groups designated as terrorist organizations by the United States government. HLP provided lessons on international law and non-violence to groups such as the Kurdistan Workers’ Party (PKK) and the Tamil Tigers. The majority refused, however, to determine whether the federal statute would be constitutional as applied to “more difficult cases” that could arise in the future.
This opinion comes on the heels of two prior cases in which the Court came out with robust pronouncements of First Amendment freedoms. In Citizens United, Justice Kennedy wrote for the conservative bloc striking down significant portions of the McCain-Feingold campaign finance reform act as violating the First Amendment. In United States v. Stevens, the Chief Justice wrote for an eight-justice majority deeming unconstitutional a federal statute that criminalized depictions of animal cruelty.
The case’s national security element may have colored the conservative bloc’s opinion, but it does not account for the votes of Justices Stevens and Kennedy, both authors of landmark cases striking down former President George W. Bush’s enemy combatant policies in Guantanamo Bay. Their fingerprints may be seen in the passages urging moderation:
We next consider whether the material-support statute, as applied to plaintiffs, violates the freedom of speech guaranteed by the First Amendment. Both plaintiffs and the Government take extreme positions on this question. Plaintiffs claim that Congress has banned their “pure political speech.” …For its part, the Government takes the foregoing too far, claiming that the only thing truly at issue in this litigation is conduct, not speech or impose any sanction on them for doing so.” Id., at 60. …The First Amendment issue before us is more refined than either plaintiffs or the Government would have it. It is not whether the Government may prohibit pure political speech, or may prohibit material support in the form of conduct. It is instead whether the Government may pro hibit what plaintiffs want to do—provide material support to the PKK and LTTE in the form of speech.
As we explained in Texas v. Johnson: “If the [Government’s] regulation is not related to expression, then the less strin gent standard we announced in United States v. O’Brien for regulations of noncommunicative conduct controls. If it is, then we are outside of O’Brien’s test, and we must [apply] a more demanding standard.”For its part, the Government takes the foregoing too far, claiming that the only thing truly at issue in this litigation is conduct, not speech or impose any sanction on them for doing so.” Id., at 60. …
Stevens dissented in Texas v. Johnson, writing that he would have allowed the criminal law against flag burning to stand where the five-justice majority–in which Justices Scalia and Kennedy joined the liberal bloc of Brennan, Marshall, and Blackmun–applied a maximalist view of the First Amendment to strike down the Texas law.
Indeed, today’s case displays Stevens’s deep precedent-bound pragmatism. He not only signed onto an opinion that cited a case from which he dissented, but he also continued his less-than-absolute take on the First Amendment while also showing that he is not an unyielding civil libertarian when it comes to the war on terror.
Justice Breyer read his dissent from the bench today, stating that the federal statute could not survive strict scrutiny. Breyer, however, is no First Amendment maximalist himself, despite this morning’s oral dissent. Today’s decision, when compared with this term’s earlier First Amendment decisions, is a reminder that on the Roberts Court there is no unyielding free speech champion. Instead, the justices use the First Amendment as an ancillary issue to be used to their advantage on cases that touch their greater concerns, be they national security or campaign finance.
Breyer’s oral announcement of his dissent marked the second time this term a justice has done so. Justice Stevens spoke for 20 minutes to protest Citizens United back in January. There may be others yet, as a few more charged cases remain for the Court’s Thursday and Monday sessions.
I was at the Court today for its announcement of six brief opinions. While there, I was lucky enough to see a Breyer Blooper.
Two of the decisions–American Needle v. NFL and Lewis v. City of Chicago–were unanimous. Per my oral argument report from Lewis, Justice Scalia’s opinion today in favor of the black firefighters’ disparate impact claim against the City of Chicago was hardly surprising. Still, Justice Scalia’s distaste for disparate impact law was palpable as he read a particularly long summary of a particularly brief opinion. It was almost as if he was punishing us for his not only having to continue considering disparate impact cases, but also that he found it necessary to rule in favor of the plaintiffs in this case.
A quick recap of the case: the EEOC filed suit on behalf of a class of black firefighters in Chicago claiming that the City’s use of a particular test to determine fire department hirings was discriminatory in its impact. The district court agreed, awarding backpay and ordering the fire department to hire to 132 class members. The Seventh Circuit reversed, holding that the firefighters’ suit was time-barred. Today, the Court held that the black firefighters’ disparate impact claims were not time-barred, thereby sending the case back to the Seventh Circuit to determine whether or not to modify the District Court’s original relief.
As for American Needle, the Court sided with Drew Brees by holding that National Football League Properties’ decision to grant exclusive intellectual property licenses is covered by §1 of the Sherman Antitrust Act, which makes illegal contracts or combinations made in restraint of trade. The Court, however, did not decide whether NFLP acted illegally; rather, it rejected one standard–“single entity theory”–in favor of another–“Rule of Reason”–for the lower courts to use on remand in determining illegality.
The Court also dismissed as improvidently granted Robertson v. United States ex rel. Watson over a vigorous dissent by Chief Justice Roberts and joined by Justices Scalia, Kennedy, and Sotomayor. The Court left in place a ruling by the court of appeal that a private person may bring an action for criminal contempt rather than in the name of the United States. The dissenters would have held that the “terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government.” In other words, any action that makes this aspect of criminal law less scary is unconstitutional. Our Lockean social contract, wrote Roberts, takes “the sword of justice, to be used to smite those who violate the criminal laws, [...] out of private hands and turn it over to an organized government, acting on behalf of all the people.”
Justice Sotomayor, joined by Justice Kennedy, added her own brief dissent to clarify her “understanding that the narrow holding [Roberts's dissent] proposes does not address civil contempt proceedings or consider more generally the legitimacy of existing regimes for the enforcement of restraining orders” similar to the one Watson secured against–and was repeatedly violated by–Robertson. Regardless of her more modest dissent, Sotomayor may have shown herself to be, as predicted, to the right of Justice Souter in her criminal law jurisprudence. A few more years and a dozen more opinions are required for that observation to become a conclusion, however.
Justice Stevens was today’s busiest man. He wrote the unanimous opinion in American Needle, concurrences in United States v. O’Brien and Hardt v. Reliance Standard Life Insurance, and a dissent in United States v. Marcus.
In addition to its decisions in argued cases, the Court GVR’d (granted, vacated, and remanded) Jefferson v. Upton, requiring the lower federal courts to consider whether it erred in accepting a state court’s findings that the attorneys for the petitioner, who is now on death row for murdering a co-worker on a fishing trip, should have investigated the mental effects of having his head run over by a car when he was two years old. Justice Scalia, joined by Justice Thomas, dissented.
The Court also granted certiorari in six cases to be heard next term. Two of these cases, Arizona Christian School Tuition Board v. Winn and Garriott v. Winn will be consolidated into a single oral argument testing the constitutionality of a tax credit scheme in which taxpayers choose to direct more contributions to religious organizations than nonreligious ones.
Another case, Skinner v. Switzer, asks whether under a federal civil rights statute a death row prisoner may obtain access to DNA testing that was not performed at trial. In last term’s District Attorney’s Office for the Third Judicial District v. Osborne, the Court rejected a constitutional right to potentially exonerating DNA evidence when the state has denied access to it, but left open the question of statutory relief at issue in Skinner.
And one more for the blooper reel: Justice Breyer jumped the gavel today, emerging from behind the curtain before the Marshal began her “oyez, oyez, oyez” chant. Sotomayor came out smiling wide and laughing hard while Roberts amusedly shook his head and Stevens smirked.
Citing security concerns, the Court has stated that as of tomorrow, visitors will enter through a new entrance next to the building’s front steps that until now the public has long scaled to see the Court in action. Visitors, however, will be able to exit the Court through its front doors.
I have entered and exited the Court via its front door eleven times this term. While walking down the steps is fun, its emotional impact is minor compared to the thrill of the 9am ascent into the Court. Since January, I have shared this experience with men and women who have waited for hours in the cold and dark only to forget their chills upon seeing the bronze doors swing open. Smiling wide, these men and women climb the steps, their heads swiveling from Court to Capitol as their goal grows nearer with every pace. For those who line up at the Court for each of its public sessions, this process marks–quite literally–a rite of passage from sidewalk to sacred space. To deny these men and women this dramatic piece of their pilgrimage is quite mistaken.
Justice Breyer, joined by Justice Ginsburg, understands what the American public has lost today. In a memorandum that serves as a “dissent” from the Court’s decision to close the front door, Breyer states:
I write with regret to note the closing of the Court’s front entrance. The Supreme Court building is currently undergoing extensive construction, and the Court has decided that, after this construction is completed, visitors to the Court–including the parties whose cases we decide, the attorneys who argue those cases, and the members of the public who come to listen and to observe their government in action–will have to enter through a side door. While I recognize the reasons for this change, on balance I do not believe they justify it. I think the change is unfortunate, and I write in the hope that the public will one day in the future be able to enter the Court’s Great Hall after passing under the famous words “Equal Justice Under Law.”
Breyer goes on to explain how this closure is directly at odds with the vision of the Supreme Court’s architect, Cass Gilbert:
Cass Gilbert faced a difficult problem when he was commissioned to design the Court’s present home. The Court was to be built on a small, irregularly-shaped plot of land adjacent to both the Capitol and the Library of Congress, two powerful and prominent architectural competitors. How was Gilbert to create a distinctive, yet fitting, home for the Court in these circumstances?
Gilbert’s solution was to design an entrance that, in the words of architect and lawyer Paul Byard, “emphasiz[ed] the processional progress toward justice reenacted daily in [the Court's] premises.” Starting at the Court’s western plaza, Gilber’s plan leads visitors along a carefully choreographed, climbing path that ultimately ends at the courtroom itself. The Court’s forty-four marble steps, the James Earle Fraser sculptures Contemplation of Justice and Authority of Law, the Western portico with its eight pairs of columns standing high able the removed wings of the building, the Great Hall–each of theses elements does its part to encourage contemplation of the Court’s central purpose, the administration of justice to all who seek it.
But the significance of the Court’s front entrance extends beyond its design and function. Writers and artists regularly use the steps to represent the ideal that anyone in this country may obtain meaningful justice through application to this Court. And the steps appear in countless photographs commemorating famous arguments or other moments of historical importance. In short, time has proven the success of Gilbert’s vision: To many members of the public, this Court’s main entrance and front steps are not only a means to, but also a metaphor for, access to the Court itself.
This is why, even though visitors will remain able to leave via the front entrance, I find dispiriting the Court’s decision to refuse to permit the public to enter. I certainly recognize the concerns identified in the two security studies that led to this recent decision (which reaffirmed a decision made several years ago). But potential security threats will exist regardless of which entrance we use. And, in making this decision, it is important not to undervalue the symbolic and historical importance of allowing visitors to enter the Court after walking up Gilbert’s famed front steps.
I am currently reading The Nine Old Men, by Drew Pearson. Written in 1936 and now out of print, the book takes a fittingly cynical stance towards the justices then standing in the way of the New Deal and showing no signs of relenting. Pearson’s opening chapter describes the dedication of the then-new Supreme Court building. Here’s the first paragraph:
It was one of the most momentous occasions in the history of the Supreme Court. The highest dignitaries of the nation were assembled. They stood bareheaded, despite a light drizzle, and extolled the mightiness of justice and the magnificence of the building whose cornerstone they were about to lay. They dwelt feelingly on the fact that this new building, this imposing temple of justice, was a symbol of permanence, a constant reminder to the nine justices that they, and they alone, stood as guardians against flexibility in the economic and social life of the nation.
Yet contrary to Pearson’s perspective, the Court did not hearken the end of history. Pearson could not have predicted at the Court’s 1935 opening that two years later, the justices would step aside and the New Deal would move forward. Nor could he have predicted that nineteen years later, a new set of justices inhabiting the “imposing temple of justice” would, in fact, impose justice throughout the segregated South. Even as the building’s outward appearance has stood for rigid continuity, within the Court history and its ever-shifting political winds have bent–and will continue to bend–our popular concepts of justice from right to left and back again.
In the passions of his moment, Pearson found too much meaning in the temporal confluence of a permanent palace and its temporary inhabitants. Over the years, the Supreme Court building, with all its symbolism, has reflected the aspirations of the people, not of the justices. Although each of us sees something different as we stand on the Court’s plaza depending on how we define justice, that we seek out justice, however defined, is the universal aspiration that bonds us all. And in the public’s climb up those steps to enter the Court are we reminded, despite the blinding light of our political passions, of this bond.
Accordingly, I agree with Justice Breyer’s conclusion:
I thus remain hopeful that, sometime in the future, technological advances, a Congressional appropriation, or the dissipation of the current security risks will enable us to restore the Supreme Court’s main entrance as a symbol of dignified openness and meaningful access to equal justice under law.
JUSTICE BREYER: Can I ask you a related question, which will show what I’m trying — another thing that is worrying me. Suppose we are in the Armed Career Criminal Act.
Now, I have — this is my hypothetical. You have heard of cat burglars. Well, this gentleman is called the pussycat burglar and the reason is he never harmed a soul. He only carries soft pillows as weapons. If he sees a child, he gives them ice cream.
It is absolutely established that this person in breaking into that houseat night only wanted to steal a pop gun, and he is the least likely to cause harm in the world.
Question: He is convicted of burglary. Is that a crime of violence? Answer?
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.
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.