FIRST ONE @ ONE FIRST

Retired Justices as Subs for Recusals

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

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

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

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

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

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

Souter Flurry

Posted in Law and Politics by Mike Sacks on June 4, 2010

Last week, I published a run-down of Justice Souter’s speech at Harvard, in which he offered a strong rebuttal to the textualist/originalist approach that has come to dominate our confirmation hearing debates.  This week, there has been a flurry of commentary on the speech from Linda Greenhouse of the New York Times, Joan Biskupic of USA Today, and E.J. Dionne of the Washington Post.

This speech, however, was not only meant to address today’s public and Souter’s former colleagues.  As I wrote two months ago, Souter is taking the long view towards restoring a balanced approach to judging thrown off-kilter by the Warren and Burger Courts’ liberal overreach and the Rehnquist and Roberts Courts’ conservative overcorrection.  Souter’s speech, then, may be taken in tandem with his valedictory Osborne dissent from last term, in which he advocated for the the law’s restrained evolution–something that was common sense to liberals and conservatives several generations ago but today seems downright paradoxical compared to our current choice of calcification or activism.

Here’s the relevant part of the dissent in full:

As for determining the right moment for a court to decide whether substantive due process requires recognition of an individual right unsanctioned by tradition (or the invalidation of traditional law), I certainly agree with the Court that the beginning of wisdom is to go slow. Substantive due process expresses the conception that the liberty it protects is a freedom from arbitrary government action, from restraints lacking any reasonable justification and a substantive due process claim requires attention to two closely related elements that call for great care on the part of a court. It is crucial, first, to be clear about whose understanding it is that is being taken as the touchstone of what is arbitrary and outside the sphere of reasonable judgment. And it is just as essential to recognize how much time society needs in order to work through a given issue before it makes sense to ask whether a law or practice on the subject is beyond the pale of reasonable choice, and subject to being struck down as violating due process.

It goes without saying that the conception of the reasonable looks to the prevailing understanding of the broad society, not to individual notions that a judge may entertain for himself alone, and in applying a national constitution the society of reference is the nation. On specific issues, widely shared understandings within the national society can change as interests claimed under the rubric of liberty evolve into recognition, see Griswold v. Connecticut381 U. S. 479 (1965) (personal privacy);Lawrence v. Texas539 U. S. 558 (2003) (sexual intimacy), see also Washington v.Glucksberg521 U. S. 702, 752 (1997) (Souter, J., concurring in judgment), or are recast in light of experience and accumulated knowledge, compare Roe v. Wade410 U. S. 113 (1973), with Planned Parenthood of Southeastern Pa. v. Casey505 U. S. 833(1992) (joint opinion of O’Connor, Kennedy and Souter, JJ.).

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.

Justice Souter at Harvard

Posted in Justicespotting, Law and Politics by Mike Sacks on May 27, 2010

Justice Souter spoke today at Harvard’s commencement, where he sought to pre-empt the inevitable charges of the Court’s “engaging in activism to extend civil liberties” that come at the end of each term and the start of every confirmation battle.  In recognizing the Constitution’s conflicting values and open-ended provisions, Souter presented a judicial approach in staunch opposition to what he called the “fair reading model”–think Chief Justice Roberts’s balls-and-strikes metaphor–as having only a “tenuous connection to reality” in the cases that “raise the national blood pressure.”

The judge, Souter argued, must reckon with the fact that the “Constitution is no simple contract,” but rather a “pantheon of values” with language that “grants and guarantees many good things, and good things that compete with each other and can never all be realized, altogether, all at once.”  These conflicts, Souter said, reflect the “desire of the American people, like most people, to have things both ways.”  When those good things compete–order v. liberty, liberty v. equality–”judges have to choose between the good things that the constitution approves, and when they do they have to choose not on the basis of measurements but of meanings.”

As examples, Souter cited two landmark constitutional law cases from which many contemporary cries of judicial activism originate.

To illustrate a Court’s obligation to decide between conflicting constitutional provisions, he spoke about the Pentagon Papers case in which the Court’s majority rejected both Justice Black’s First Amendment absolutism and the government’s claims of absolute executive privilege.  The Court instead decided against the government but contemplated circumstances in which a prior restraint, despite the First Amendment’s plain language, would be necessary under the President’s constitutional mandate in foreign affairs and national security.  Upon this consideration, Souter asked,

Should the choice and its explanation be called illegitimate law making?  Can it be an act beyond the judicial power when a choice must be made and the Constitution has not made it in advance in so many words?  So much for the notion that all of constitutional law lies there in the Constitution waiting for a judge to read it fairly.

To show the promise of the Constitution’s deliberately open-ended provisions such as the Equal Protection Clause, Souter referred to Brown v. Board‘s rejecting a separate-but-equal regime that seemed sixty years prior to mean “enormous progress” for the Plessy v. Ferguson majority, who “remembered the day when human slavery was the law in much of the land.”  The Brown Court, then, “found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see.”  To this, Souter rhetorically asked his audience and hypothetical Brown-skeptics:

Did the judges of 1954 cross some limit of the constitution into lawmaking?  Was it activism to act based on the current meaning of facts that at a purely objective level were the same as Plessy’s facts 60 years before?  So much for the assumption that facts just lie there waiting for an objective judge to view them.

Indeed, for Souter, “judges who understood the meaning [of Jim Crow] that was apparent in 1954 would have violated their oaths to uphold the Constitution had they not held the segregation mandate unconstitutional.”

Souter concluded that the “the very opportunity for conflict between the good and the good reflects our confidence that a way may be found to resolve it when a conflict arises.”  The fair reading is view of judging, then, “devalues those aspirations, and attacks that confidence, and diminishes us” by “discourag[ing] our tenacity (our sometimes reluctant tenacity) to keep the constitutional promises the Nation has made.”

Although the fair reading model seems to promise to satisfy the “basic human hunger for certainty and control,” Souter recognized that in an “indeterminate world,”

we can still address the constitutional uncertainties the way [the Framers] must have envisioned, by relying on reason that respects the words the Framers wrote, by facing facts, and by seeking to understand their meaning for the living.  That is how a judge lives in a state of trust, and I know of no other way to make good on the aspirations that tell us who we are, and who we mean to be, as the people of the United States.

UPDATE: Link to transcript added with quotes fixed to reflect the official text.

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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.”

Sotomayor’s Imminent Impact

Posted in Anticipation, Clairvoyance by Mike Sacks on January 4, 2010

The WSJ Law Blog calls its readers’ attention to a New Yorker feature on Justice Sotomayor:

[W]e were delighted to open our digital copies of the New Yorker this week to find a lengthy and wide-ranging article about Sotomayor. The timing, in our minds, couldn’t have been better.

The article, by reporter Lauren Collins, is worth reading for a host of reasons. But for our money, the piece is a standout largely due to the nuance with which it treats its subject. She’s eminently personable, but has already raised eyebrows with her aggressive questioning from the bench. She’s a stickler for preparation, but isn’t averse to letting down her hair as well. She’s a liberal given to quoting the likes of Carol Gilligan, but still rules for the prosecution the vast majority of the time.

To me, the timing couldn’t be better particularly because of this final point.  On Monday–F1@1F’s first, freezing day in line–the Court will hear Briscoe v. Virginia, and Sotomayor could very well be the fifth vote to reverse last year’s 5-4 decision in Melendez-Diaz v. Massachusetts.

Melendez-Diaz held that the Sixth Amendment’s Confrontation Clause requires prosecutors to put forensic analysts on the witness stand rather than simply enter their lab reports into evidence.  Justice Scalia wrote the for the majority, in which he was joined by Justices Stevens, Souter, Thomas, and Ginsburg.  Justice Kennedy dissented for himself, Justices Breyer and Alito, and Chief Justice Roberts.  As we all know, Souter has since been replaced by Sotomayor.  Importantly, she is a former prosecutor whose Second Circuit record is friendlier to the prosecution than Justice Souter’s criminal law jurisprudence.

Whereas Scalia and Thomas sometimes find that their originalism incidentally leads them to liberal results, such as in Confrontation Clause cases, Stevens, Souter, and Ginsburg had long established themselves as friendlier to criminal defendants than to their government prosecutors.   Meanwhile, in Melendez-Diaz, Roberts, Kennedy, and Alito voted for conservative law-and-order principles, but Justice Breyer’s pragmatism led him to contest that Scalia’s holding would be simply too heavy a burden on the system.

For Scalia, his Constitution wins regardless of the practical effects.  But Briscoe addresses the concerns that Scalia ran roughshod over in Melendez-Diaz, suggesting that Scalia’s Confrontation Clause ideals have their limits.  By forcing governments to expensively transport their limited numbers of lab technicians all over the place, Melendez-Diaz could consequentially require the technicians not only to spend more time on the stand than in the lab, but also lead to hairy procedural defaults when a single analyst’s work for different cases comes to trial in several courtrooms at once.

As a trial and circuit judge, Sotomayor exhibited the law-and-order streak and experience-based pragmatism that animated the Melendez-Diaz dissenters. Briscoe is Sotomayor’s first test over whether she will bring her Second Circuit preferences to the Supreme Court.  If she does, Melendez-Diaz will fall after only one year as precedent, even if her eight senior colleagues don’t budge.

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