Justice Souter at Harvard

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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Graham, Comstock, and the Chief Justice

F1@1F has from its inception been animated by my hypothesis that the Roberts Court’s docket and decisions have been shaped the Chief Justice’s sensitivity to the Court’s surrounding political climate.  As such, Citizens United represented less an act of war against the Democratic-controlled White House and Congress, and more a picked battle strategically placed to cause minimal institutional harm to a conservative Court with diminished political capital.  Now that oral arguments are over and the politically salient cases are finally being decided, F1@1F will focus more fully on whether this term’s opinions support or disprove the hypothesis.

Last week’s opinions in Graham v. Florida and United States v. Comstock found Chief Justice Roberts unexpectedly siding with the Court’s liberal wing on ideologically divisive questions of law and politics.

In Graham, six members of the Court voted to vacate a juvenile’s sentence of life without parole for a non-homicide crime. Justice Kennedy’s five-member majority opinion, joined by the Court’s liberal bloc, declared that all such sentences categorically violate the Eighth Amendment.

Concurring in the judgment, Chief Justice Roberts hedged with an as-applied analysis rather than categorically endorse Kennedy’s expansive Eighth Amendment jurisprudence.  Yet Roberts also refused to sign onto Thomas’s categorical denial of relief, despite his joining the dissent in Kennedy v. Louisiana, which outlawed the death penalty for child rape.

In a way, the Chief’s vote seems to recognize the public ambivalence towards life without parole (LWOP) for juveniles convicted of non-homicide crimes.  As he saw it, people are either confortable enough in theory with the laws as written that allow LWOP, but are loath in practice to trust trial judges to fairly wield such awesome power; or they are uncomfortable in theory with LWOP for juveniles, but wish the death penalty still applied when confronted with particularly heinous crimes committed by almost-adults.   It was for the latter type who, like the majority, reject even the theory of LWOP for juveniles, that Roberts juxtaposed Graham, who received LWOP for armed robbery with assault or battery, with a 17-year-old who “beat and raped an 8-year-old girl before leaving her to die under 197 pounds of rock in a recycling bin in a remote landfill” and two juveniles “who together with their friends gang-raped a woman and forced her to perform oral sex on her 12-year-old son.”

Judging by his Graham concurrence and his joining the Kennedy dissent, Roberts’s own Eighth Amendment jurisprudence is more pragmatic and politically responsive than that of his eight colleagues.  In undertaking a proportionality analysis, Roberts’s views are apparently guided by the shock of the crime rather than the severity of the punishment.  Particular punishments are never categorically beyond the pale; only certain crimes are.

In Comstock, Roberts joined Justice Breyer’s opinion without any hedging whatsoever, thereby restoring a seemingly more expansive view of Congress’s Article I power than the Rehnquist Court would have allowed, at least before Raich. He could have joined Kennedy’s or Alito’s narrower concurrences in the judgment and thwarted a majority.  Instead, he gave a fifth vote to a mode of reasoning that may dim the hopes of those challenging the Affordable Care Act.

The Chief Justice may have felt compelled to join Breyer’s opinion, which also included the rest of the liberal bloc, so to secure for the parties and future litigants a clear holding.  I have difficulty believing that if the votes at conference were the same as they were at decision–7-2 to uphold as within Congress’s power a federal statute allowing for the civil commitment of sex offenders after their federal prison sentences have ended–the Chief would have delegated the majority opinion to Justice Breyer.  This case had serious federalism implications, after all, and Breyer’s penchant for multi-factor balancing tests and general hostility to narrower readings of Congress’s Article I powers promised an opinion that would not sit well with the Court’s conservatives.

Two scenarios, then, come to mind.  Roberts may have originally been with Thomas and Scalia in dissent, believing that Congress’s legislative powers go no further than those specifically enumerated in Article I of the Constitution.  Justice Stevens, as the senior justice in the majority, could have assigned the opinion to Breyer as a reward for Breyer’s fever-pitch dissent in Lopez protesting the start of the Rehnquist Court’s ultimately incomplete federalism revolution.  When Breyer’s opinion failed to attract five votes, Roberts may have switched his own, finding the opinion’s mushy language eminently manipulable to more conservative results in more important future cases.

The same pattern holds for a second scenario in which Roberts, unable to countenance freed sex offenders for the sake of federalism principles, may have voted at conference with Kennedy or, more likely, Alito.  If the conference counted the votes based on reasoning rather than results, then Stevens still would have been the assigning justice.

Of course, Roberts may have simply agreed from the start with Breyer and the liberals.  But even if such a thought was ideologically plausible prior to the announcement of Comstock, it just doesn’t make strategic sense for the Chief to entrust the opinion to Breyer.  However, if the Chief was in the majority and did assign the opinion to Breyer, it could have been to send a message to those hoping the Court will strike down Obamacare: abandon all hope ye who enter here, for the Roberts Court will not cross the Roosevelt Rubicon.

Together, Graham and Comstock reveal a Chief Justice acutely aware of the country’s political climate and unwilling to sacrifice the Court’s institutional legitimacy for across-the-board conservative gain.  There remain a handful of major cases yet to be decided, however, that could reveal a Chief Justice ready to gamble what remains of his Court’s post-Citizens United political capital on a few more battles.

Today’s Decisions (and a Blooper)

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.

Regular Posting to Resume Next Week

I’ve just emerged from finals and am now enjoying my recovery period.  I’ve got some thoughts on this past week’s Graham and Comstock decisions, and how they relate to the Roberts Court and our political climate.  Those, as well as analysis on the Court’s forthcoming opinions on Monday, will be up next week.

Thank you for your patience!

Reporters on the Confirmation Process

Last night at the Library of Congress, C-SPAN held a panel on its new book about the Supreme Court in its own words based on the televised interview series that first aired this past October.

Here’s an excerpt of the panelists discussing the sustained woefulness of our confirmation process:

Vodpod videos no longer available.

Today’s PA Primary and the Kagan Confirmation

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

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

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

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

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

Graham v. Florida

Today Justice Kennedy extended his Eighth Amendment legacy as the author of the majority opinion in Graham v. Florida.  The Court invalidated sentences of life without parole for juveniles convicted of non-homicide crimes.  His opinion was joined by Justices Stevens, Ginsburg, Breyer, and Sotomayor.

Justice Roberts added his vote to the majority’s judgment that Graham’s sentence should be overturned, but refused to follow the majority’s broad determination that all sentences like Graham’s facially violate the Eighth Amendment’s ban on cruel and unusual punishment.

Justice Thomas, in a dissent joined by Justices Scalia and partially by Alito, wrote that the Court has rejected “the judgments of…legislatures, judges, and juries regarding what the Court describes as the ‘moral’ question of whether this sentence can ever be ‘proportionat[e]’ when applied to the category of offenders at issue here.”

In addition, Thomas struck at the return of Justice Kennedy’s famous citations to foreign law at the close of the majority opinion.  Unwilling to dignify such references with a rebuttal in the body of the dissent, Thomas “confine[d] to a footnote the Court’s discussion of foreign laws and sentencing practices because past opinions explain at length why such factors are irrelevant to the meaning of our Constitution or the Court’s discernment of any longstanding tradition in this Nation.”

Justice Alito, writing for himself, added a short dissent noting that courts could still sentence juveniles to very long sentences without parole, as long as the sentences were not for life.

In two-paragraph concurring opinion, retiring Justice Stevens, joined by Justices Ginsburg and Sotomayor, attacked Justice Thomas’s dissent as too “rigid” an interpretation of the “evolving standards of decency” doctrine that has guided the Court’s Eighth Amendment jurisprudence since 1910.  Stevens wrote:

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commit- ment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete.

While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

Welcome The Atlantic Readers!

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

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

Please, No Vapid Charade

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

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

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

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

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

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

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

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

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

Kagan’s the Nominee

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

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