Much has been made since Justice Kagan’s nomination last year of her high recusal rate this term due to her participation as Solicitor General in many cases now before the Court. This morning, however, the Court issued its latest order list that features an inversion of the usual recusal pattern for this term:
In this petition against Justice Thomas, I’m left wondering here why Justice Kagan was left the last justice standing. After all, she has sat on the bench with Justice Thomas for the better part of a term now, and the other justices appear to have taken no part in considering this petition solely on the basis of potential collegial bias.* Is there some arcane one-year rule in the Court’s internal procedures that was written for this very scenario? What would have happened if the Court received this petition next term or the term thereafter?
As for the petition itself, Petitioner Kenneth L. Smith appears to be a serial pro se litigant on a mission to oust Article III judges for violations of their good behavior tenure. This petition against Justice Thomas, then, came to the Court at an opportune time as Justice Thomas has been mired in ethics attacks for months. While I cannot find his cert. petition in Smith v. Thomas, I have found another recent brief to the Tenth Circuit against Senior Judge Stephen H. Anderson. In the brief, Smith colorfully presents his other cases against judges over the past decade:
*UPDATE: QED and Joe in the comments did the due diligence to dig up the docket listing for Smith v. Thomas at the D.C. Circuit. Turns out Smith brought suit against every sitting justice in October 2009. Therefore, the mass recusal today was not because of perceived bias in favor of the named defendant, Justice Thomas, but rather that all eight justices (and former Justice John Paul Stevens) were also defendants.
QED’s link didn’t work for me, so here’s a cached copy. And here is the District Court’s order granting the justices’ motion to dismiss. Turns out, as Joe points out below, that the suit was not an effort to remove the justices, but rather an effort to seek ”a mandate from [the district court] requiring the Justices of the United States Supreme Court to hear all petitions brought to that body under a writ of error or in the alternative, a formal declaration that the Bill of Rights is null and void for want of meaningful enforcement.”
Just a few quick thoughts before I get back to bar studies:
- Justice Kagan’s first opinion is in the first case she heard on the Supreme Court. True to tradition, it’s a dog of a case.
- Justice Scalia is the lone dissent, breaking from the tradition of unanimity for a new justice’s first opinion. Last year, Justice Thomas concurred in part in Justice Sotomayor’s first opinion. Does two years away from the tradition mean it’s no longer a tradition?
- Kagan wasted no time getting into a footnote scuffle with Scalia over the textual relevance of consulting the IRS’s “Collection Financial Standards”:
- Kagan, fn7 – “Because the dissent appears to misunderstand our use of the Collection Financial Standards, and because it may be important for future cases to be clear on this point, we emphasize again that the statute does not “incorporat[e]” or otherwise “impor[t]” the IRS’s guidance. Post, at 1, 4 (opinion of SCALIA, J.). The dissent questions what possible basis except incorporation could justify our consulting the IRS’s view, post, at 4, n., but we think that basis obvious: The IRS creates the National and Local Standards referenced in the statute, revises them as it deems necessary, and uses them every day. The agency might,therefore, have something insightful and persuasive (albeit not controlling) to say about them.
- Scalia, fn* – “The Court protests that I misunderstand its use of the Collection Financial Standards. Its opinion does not, it says, find them to beincorporated by the Bankruptcy Code; they simply “reinforc[e] our conclusion that . . . a debtor seeking to claim this deduction must makesome loan or lease payments.” Ante, at 10. True enough, the opinionsays that the Bankruptcy Code “does not incorporate the IRS’s guidelines,” but it immediately continues that “courts may consult this material in interpreting the National and Local Standards” so long as itis not “at odds with the statutory language.” Ibid. In the presentcontext, the real-world difference between finding the guidelines incorporated and finding it appropriate to consult them escapes me, since I can imagine no basis for consulting them unless Congress meant them to be consulted, which would mean they are incorporated. And without incorporation, they are at odds with the statutory language, which otherwise contains no hint that eligibility for a Car Ownership deduction requires anything other than ownership of a car.”
- Does citing midcentury UK law count as a dreaded citation to foreign law? Scalia: “The canon against superfluity is not a canon against verbosity.When a thought could have been expressed more concisely, one does not always have to cast about for someadditional meaning to the word or phrase that could havebeen dispensed with. This has always been understood. A House of Lords opinion holds, for example, that in the phrase “ ‘in addition to and not in derogation of ’ ” the last part adds nothing but emphasis. Davies v. Powell Duffryn Associated Collieries, Ltd.,  A. C. 601, 607.”
Back to the barstuffs.
This morning C-SPAN released a few choice clips from its interview with Justice Kagan in anticipation of its airing the full interview this coming Sunday night. In the above clip, Justice Kagan speaks about her respect for Chief Justice Roberts.
Meanwhile, if you go over to the Supreme Court’s page for this term’s opinions related to orders of the Court, you’ll see this:
This term, I’ve been thinking quite a lot about these two pairings–Chief Justice Roberts and Justice Kagan, Justice Alito and Justice Sotomayor. At oral argument as well as in the few opinions of this term, it has become clear that they are developing doppelgänger demeanors.
Roberts and Kagan conduct themselves like suave assassins, devastating advocates without compromising their gentility. They apprenticed at the feet of the Court’s then arch-partisans–he, Justice Rehnquist; she, Justice Marshall–and now possess those two men’s collegiality without their more prickly public personas. Indeed, Roberts and Kagan, both bred for leadership at Harvard Law, are public creatures: the Chief and the Dean. Firm but polished, one can see these two in twenty years as gracefully grayed totems of conservative and liberal jurisprudence.
Alito and Sotomayor, on the other hand, are their sides’ enforcers. Appearing rough around the edges, they send clear, aggressive messages, often on behalf of their comrades, but sometimes alone on principle. In their self assurance that comes from years of practice in the lower courts, they seem not to have much interest in institutional niceties when the law is disobeyed or justice is disregarded. Both Princeton and Yale Law grads, they took active roles in their institutions’ internal battles over coeducation and affirmative action. Rather than skirt controversy and stay quiet to maintain squeaky clean public records, they took stands over the identity politics of their days that have continued into 21st century America. It is no wonder, then, that Alito and Sotomayor have had no hesitance going on record to dissent from denials of certiorari, even if such opinions were once seen as rare peeks behind the curtain saved only for a justice’s irrepressible outrage.
The massive cases about health care, gay marriage, affirmative action, and abortion bubbling up to the Supreme Court in the next few years will mark the final overlap between the old Court and the new: the septuagenarians–Ginsburg, Scalia, Kennedy, and Breyer–will have as much time remaining in their twilight on the bench as Roberts, Alito, Sotomayor, and Kagan will have spent so far on it. For those cases, we will rightly focus on Justice Kennedy for the bottom-line prognostication and ultimate pronouncements. But we should absolutely save some of our peripheral vision for how our four youngest justices conduct themselves at argument and in print, as those cases will be the crucibles upon which their careers will be characterized for the next generation.
This piece is cross-posted at The CockleBur.
Professor Noah Feldman has written a column at Slate that asks whether the reputations of Justices Sotomayor and Kagan will one day occupy the same rarefied air as those of Justices Black and Frankfurter. The comparison, extrapolated from a single Sotomayor dissent from denial of certiorari in a habeas case this term and nothing at all from Kagan, seems little more than an attempt to peddle his new book, Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices, in which he explores the rivalries and relationships of Justices Black, Frankfurter, Douglas, and Jackson.
I am eager to read Feldman’s book–I just badgered Georgetown’s law library today about when it is slated to arrive–because I have long been fascinated by the Court’s primordial ideological oozing between 1937 and 1954. FDR appointed nine justices, all supporters of the New Deal’s constitutionality. They helped vanquish conservatism as it was known and realign partisan politics such that both Republicans and Democrats would support, or at least did not reject, the New Deal for the next half-century.
Beyond burying Lochnerism, however, the nine “young” men were left to their own devices in molding a jurisprudence for the modern era, when end of the Depression began the fraying of FDR’s big tent. World War II led to questions about executive power. The start of the Cold War returned to the Court’s docket questions of free speech rights of political dissidents. And postwar America, after destroying the Nazis in Europe, was finally forced to reckon with its own racist regimes.
The greatness of these questions required great answers. And those answers, from judicial restraint to strident activism, from originalism to living constitutionalism, all variations on even older themes of principle versus pragmatism, remain with us today.
So I found myself puzzling over Feldman’s concluding paragraph:
[O]ne lesson of Roosevelt’s court—more relevant than ever—is that strong rivalries and personalities make great justices. No fewer than four of Roosevelt’s appointees—Black, Douglas, Frankfurter, and Jackson—became towering figures in judicial history. In recent years, we have had on the left and center polite justices who do not vie for leadership—and who do not produce comparably incandescent constitutional ideas or judicial opinions. As we are beginning to see, the new justices on the Roberts Court have the chance to do better. The first move was Sotomayor’s. Will Kagan go next?
Strong rivalries and personalities are not enough to make great justices. The times must also require greatness. And greatness does not come by playing defense, for which the Court’s liberal wing has been increasingly relegated since the 1970s. Meanwhile, the left’s big offensives are towards full gay equality and death penalty abolition, and getting there depends, at least for now, on Justice Kennedy’s sense of his own greatness.
It’s hard to see right now when, if ever, the next great political realignment will occur. History says such realignments revolve around one great issue, and we’ve had only three: Revolution, Civil War, Depression. Gay rights and the death penalty, however huge they are for those in the arena now, are not epoch-defining issues that, once resolved, will bring us into a brave new world both politically and jurisprudentially. For his part, Feldman, in a New York Times Magazine article over the summer, proposed the “rediscovery” of liberal economic jurisprudence as a way to create room for the left’s greatness on the Court, but there’s a difference between quoting Holmes and Brandeis and being Holmes or Brandeis. Similarly, the conservative justices will be revisiting history, not writing it anew, if they follow the right’s flirtation with neo-Lochnerism into the death of Obamacare, and finally achieve the end of affirmative action and the reversal of Roe.
This is not to say that Sotomayor and Kagan, or Roberts and Alito, will not rise to the greatness of their most incandescent predecessors. But I’d rather have a bench full of moderates often politely–and, on occasion, forcefully–making inevitable progress in our imperfect, somewhat stable society than suffer through the doom and gloom that gives birth to a few squabbling greats.
This piece is cross-posted at The CockleBur.
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.
I opened my front door this dark morning to a chilly gust of autumn air spitting rain in my face. “Don’t make a habit of this, Justice Kagan,” I thought to myself.
Mother Nature has not seemed to take kindly to Elena Kagan’s milestones. On the day of her confirmation vote, a ferocious thunderstorm crashed through Capitol Hill in the time the Senate took to open and close its voting. Now, on the heels of Washington’s first glorious fall weekend, rainclouds insist on overseeing the entirety of Kagan’s debut week on the bench.
But Mother Nature is not the newest justice’s final arbiter. As the dreary day broke on One First Street this morning, scores of umbrellas shielded men and women waiting for their opportunity to give Justice Kagan a more hospitable welcome than the elements afforded.
Of all those who showed up to witness the new justice’s historic first day of court, however, one man stood out.
“You’ve got to meet Graham,” said Ryan Malphurs, who arrived shortly before 4am. A newly-minted Ph.D. in Communications, Malphurs has attended around 60 oral arguments since 2006, traveling from Texas each time, to conduct research for his dissertation on the justices’ power of persuasion at oral argument. Back again to continue his work as he expands his dissertation into a book, Malphurs introduces his friend.
Graham Blackman-Harris, 44, is the ultimate Court-watcher. Hailing from Jersey City, NJ, he made his first trip to the Court in 1990.
“I wanted to see Thurgood Marshall on the bench before he retired,” says Blackman-Harris of his first in-person encounter with the Court. “He looked like a giant.”
Since then, he’s made all but two First Mondays in October.
Forget doctoral students, forget stunt-bloggers, forget lawyers: Blackman-Harris truly embodies the civic passion so evident among the Court’s most ardent followers. A FedEx Operations Manager and self-professed C-SPAN junkie, he cites 1998’s Clinton v. City of New York as his favorite case because he had followed its issue—the constitutionality of the line-item veto—since the bill’s birth in the Senate.
“I’ve read the Constitution a bajillion times,” he says with a laugh. “I love it. Even the three-fifths part”—referring to the infamous clause writing slavery into the founding document—“because the 13th, 14th, and 15th Amendments corrected it.”
After his first trip to the Court, Blackman-Harris began his First Monday tradition in 1991 with the intention of seeing Justice Clarence Thomas’s debut. The Anita Hill allegations, however, served to delay the Senate’s confirmation of Thomas until mid-October. He has been luckier in later years, witnessing Justices Ginsburg, Breyer, Sotomayor, Kagan, and Chief Justice Roberts all make their first appearances.
Still, Justice Thomas occupies a large swath of Blackman-Harris’s highlight reel.
A year after Thomas joined the Court, the justice continued to face antagonism in the press. Blackman-Harris, who, like Thomas, grew up quite close to his grandfather, wrote the justice a letter telling him to “keep his chin up.”
Thomas wrote back with a personal thank you note. Since then, Blackman-Harris has written every other justice but never received anything more than a form letter in return.
“I don’t believe in a lot of the things Justice Thomas believes in,” says Blackman-Harris, “but I didn’t think it was fair” for the justice to get attacked for his conservative jurisprudence. “The Constitution, that sweet document, entitles [Thomas] to his beliefs.”
And Blackman-Harris can count himself among the few lucky members of the public to have seen with his own eyes one of the few moments that Justice Thomas has expressed his beliefs in the form of a question during oral argument.
“The whole courtroom just went quiet,” he remembers. That’s saying something for a place where library-silence is always maintained.
Indeed, he wishes that all Americans could witness moments like that. To back up his belief, he has written additional rounds of letters to the justices urging them to televise their proceedings.
But it should be apparent by now that for Blackman-Harris, C-SPAN’s “America and the Courts” is simply not enough. This year, he showed up on a crutch, hobbled by hip problems. “I was going to crawl if I had to,” he says.
His commitment to his visits for First Mondays and landmark arguments runs deeper than mere interest. For this man from Jersey, it’s personal. “This is my Court!” he exclaims as we enter the building.
Graham Blackman-Harris, in his deep devotion to the American idea, proves how inconsequential everyday setbacks like injury or inclement weather really are to the success of the American spirit. From the Founders scrapping the Articles of Confederation for the Constitution during a stiflingly hot Philadelphia summer to our first African-American President’s inauguration on a frostbitten Washington winter morning, we and our leaders push forward against the elements into each new chapter in our country’s history.
And judging by Justice Kagan’s performance today—poised, comfortable, and perfectly fluid in a bankruptcy case, no less—she and her audience need not regard a trifling turn in the weather as a bad omen for her decades of service to come.
As the first day of oral argument on October 4 draws near, the Court will reassemble for its annual “Long Conference” on September 27 and the investiture of Elena Kagan on October 1. Somewhere amid this preseason activity, the justices will pose for their class picture, taken only when a new justice joins the Court.
The Oyez Project has these photos going all the way back to the early Chase Court of 1865. Through the class pictures, the Court’s institutional continuity is set before us in plainly human terms. Young men and women share the stage with their elders, only to become elders themselves. Sometimes a single justice links generations disappeared and developing, such as John Paul Stevens, William J. Brennan, William O. Douglas, Oliver Wendell Holmes, and Stephen J. Field.
Naturally, all eyes will be on Justice Kagan for this year’s class photo, as they were on Justice Sotomayor for last year’s. But a question for both comes to mind: neck doily or no neck doily? For Sotomayor’s investiture and the class photo, she wore the neck doily–or jabot–that Justices Ruth Bader Ginsburg and Sandra Day O’Connor had long donned. Sotomayor kept the jabot on for Citizens United, her first oral argument, but when the Court reconvened a month later, she had done away with the doily for the unadorned black robe.
So will Sotomayor reapply the doily for this year’s class photo? And what about Kagan? Going without it is not without precedent: although O’Connor introduced the jabot, she went without it for every class picture until Ginsburg joined the Court. But surely neither Sotomayor nor Kagan will want to return Ginsburg to her lonely doilihood of the O’Connor-Sotomayor interregnum.
Speaking of Ginsburg, this year’s photo will be her first seated in the front row. Given her diminutive height, another question emerges. If her feet don’t touch the ground, will she bring back the Fuller Foot Pillow?