We’re back on…and back in the hearing room.
Jeffrey Rosen has a very long, but very good, essay/review in The New Republic of Melvin Urofsky’s Brandeis biography. Entitled “Why Brandeis Matters,” the piece begins with an examination of Brandeis’s crusade against corporate and governmental bigness as applied to the Roberts Court’s reflection of today’s current economic and political climate and ends with an account of his Zionism as symbolic of his devotion to cultural pluralism.
In between these sections, Rosen provides a timely passage for the Kagan hearings:
In addition to combining judicial restraint with passionate anti-corporate progressivism, Brandeis’s Liggett dissent exemplified a third aspect of his judicial philosophy: his commitment to interpreting the ideals of the Founders in light of the entire range of constitutional history. In this sense, Brandeis provides an inspiring model for citizens today who are searching for an alternative to the rigid originalism championed by some Roberts Court conservatives, and also for an alternative to the untethered “living constitutionalism” of some Warren Court liberals. Brandeis combines elements of originalism and living constitutionalism into an approach that might be called living originalism.
Brandeis believed that the values of the Founders were immutable, but had to be translated into a very different world in light of dramatic changes in society, technology, and economics. He believed in constitutional change—in a talk called “The Living Law,” he charged that the law had “not kept pace with the rapid development of our political, economic, and social ideals” and said “the challenge of legal justice [was] to conform to our contemporary conceptions of social justice.” But Brandeis insisted that efforts to render constitutional values in a contemporary vocabulary always had to be rooted in the text and in the broad unchanging ideals of the Framers. By interpreting the values of the Framers in light of progressive movements across the range of American history, Brandeis believed they could be preserved in a way that served the needs of citizens in the here and now—which is, after all, what the Constitution was written to do.
This “living originalism”–not to be confused with the “restrained activism” I discussed in the post below–was on display today as Solicitor General Kagan sought to bust the originalist/activist binary.
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Adam Liptak has a great recap of the just-completed 2009 term:
Chief Justice Roberts took control of his court this year, pushing hard on issues of core concern to him, including campaign finance, gun rights and criminal procedure, even as he found common ground with his colleagues on an array of other issues.
He was in the majority 92 percent of the time, more than any other justice. Last year that distinction went to Justice Anthony M. Kennedy, who is often regarded as the court’s swing vote.
“More than in any other year since he became chief justice, this has truly become the Roberts court,” said Gregory G. Garre, who served as solicitor general in the administration of George W. Bush and is now at Latham & Watkins.
This analysis is absolutely on point. The intellectual underpinning of F1@1F has been my hypothesis, now apparently proven if the NYT analysis is a reliable source, that this term’s docket largely reflected the Chief Justice’s awareness of the Court’s available political capital to achieve conservative gains beside liberal elected branches. The Court primed itself to move the law where they could and to leave for a later day those that would do more damage to the Court’s institutional legitimacy than their worth to the conservative legal movement.
For newer F1@1F readers, please give this post a read.
Most striking since I wrote the piece has been the Chief Justice’s ability to call upon the sort of “restrained activism,” introduced in NAMUDNO at the end of last term when he limited the scope of the Voting Rights Act of 1965 rather than strike it down as many expected. This term, he has employed and endorsed such legislation from the bench so to get the kinds of politically acceptable results to make some of the Court’s pro-business decisions go down a bit easier. Last week, he joined Justice Ginsburg’s Skilling decision to specifically limit and define federal honest services laws rather than strike them down–as urged by Scalia, Kennedy, and Thomas–so not to let Jeff Skilling walk free. Yesterday, in Free Enterprise Fund v. PCAOB, the Chief Justice rewrote the Sarbanes-Oxley Act–created in the wake of Skilling’s Enron collapse–to force the Public Company Oversight Accounting Board into his vision of constitutionality rather than strike it down outright.
What we’ve had, as I suggested in the winter, is a Chief Justice that knew–and cared–that the Court had only one huge expenditure available to it, and spent it in Citizens United. The rest of the docket was formed and decided accordingly, with the conservatives taking smaller, more under-the-radar steps while the liberals won what they could.
Whereas Justice Kennedy may be the limiting factor on the hot buttons of abortion and affirmative action, issues as the NYT piece noted were nowhere to be found this term, he’s firmly in the maximalist pro-business camp. And for a Court operating in an economic downturn with Democrats in the political branches all too willing to cast it as the tool of an intemperate Tea Party, the Chief–often joined by Justice Alito–must serve as the prudent captain of his man of war‘s voyage towards economic liberty without crossing the Roosevelt Rubicon.
Ali Dierks, eighth in line and the first female at One First on Sunday night/Monday morning, has written up her experience on her blog, acd @ IUB:
At 1 am last night, I made the impulsive decision to go downtown and camp out on the sidewalk in front of the Supreme Court. Why camp out? To be sure I was one of the first in line, so I could get a number and be sure to get seated. It was a big day today, with some history-making business on the docket: Justice Stevens’s last day, the closing of the term, and two big cases – one on gun rights, the other about the Appointments Clause and executive authority more generally.
From the moment she arrived in line, Ali asserted herself as the sparkiest among us. Characteristically, then, she gives a colorful recap of the evening and I encourage you all to read the rest here.
I concur with her discussion of General Lee Shelton, but must dissent from her impressions on some of those further back in line. Overall, however, her rundown of the experience in entertaining and comprehensive.
I’ll be writing up my own thoughts and observations for the ABA Journal’s website soon.
UPDATE: My Usurper, Daniel Rice, also posted his own recap of the day. Here’s his conclusion:
It’s hard to communicate the day’s excitement in a blog post driven by descriptions of events for the purpose of keeping friends and family apprised of my adventures, especially when the author has been awake for 35 hours, but I can’t emphasize enough that today was unlike anything I’ve ever experienced. To have witnessed a Supreme Court term’s final sitting (including the incorporation of one of the first ten Amendments), the retirement of a giant in the history of American law, and the Day One of a constitutionally prescribed rite of passage that will likely initiate another long and storied judicial career–all in the same day–is just plain silly for its utter implausibility. This is one of those days I’ll never forget.
Read what led him to that conclusion here.
Figured it out. Take that link and forget about reloads. And you can even comment and ask questions!
F1@1F LIVEBLOG: KAGAN HEARINGS – DAY 1
Keep refreshing until I figure out how to autorefresh…
12:36 – Senator Leahy is giving his opening statement to a completely packed Hart Senate Office Building Room 216. Not saying anything remarkable right now–of course, not much remarkable gets said by anyone at these things. So for the moment, I’ll busy myself admiring the suspendered-reporter sitting directly in front of me who must have just blasted to the future straight from the Brandeis confirmation hearings.
12:45 – Senator Sessions begins his own opening statements. Here come the march of serious concerns. First mention of the Warren Court’s activism. Looking forward to see him go toe-to-toe with Leahy’s references to Citizens United and Vermont Marble.
12:50 – The Kagan Nomination has emerged as the only area Congress feels free to criticize any aspect of Israeli law and politics. Sessions has repeated his problem with Kagan’s admiration for former Israeli Chief Justice Aharon Barak, who sessions has called the most activist judge ever.
12:55 – Herb Kohl (D-WI) has fired the first shot against last year’s Robo-Soto performance and 2005’s Roberts hearing. Paging Justice Souter: “We hear the over-used platitudes from every nominee, that he or she will apply the facts to the law and faithfully follow the Constitution. But, deciding Supreme Court cases is not merely a mechanical application of the law…You will not merely be calling balls and strikes.”
1:08 – Senator Feinstein (D-CA) notes Kagan’s firstiness as a female Solicitor General. There have been five SG’s to be SCOTUS justices. “Nearly every SG” has endorsed her. Bork hasn’t.
1:11 – Feinstein mentions that Rehnquist and Warren were not judges. “Extremely dismayed” to hear about McDonald – that they “disregard the precedent of 71 years embedded in United States v. Miller” – except that Miller was admittedly opaque by all. “As a former mayor,” she says, she’s aghast by these cases’ tossing aside of state and local regulatory control.
Four 5-4 decisions, three dissents from the bench, and very touching reflections upon the life of Marty Ginsburg and the career of Justice John Paul Stevens. Really an amazing experience inside the Court this morning.
Rushing off to Kagan Hearings now. First, a few quick thoughts:
- McDonald: 5-4 result as expected for full incorporation with Thomas concurring for PI Clause and Breyer registering a protest dissent from Heller. Contra my prediction, Stevens and Sotomayor dissented from incorporation, with the former writing for himself and the latter joining Breyer’s dissent along with Ginsburg.
- Bilski: Stevens lost his majority, which explains the long delay. Kennedy wrote the majority, signaling that perhaps he had changed his vote. Stevens read his concurrence (which was really a dissent) from the bench.
- PCAOB: The Roberts Court is really getting in the habit of rewriting federal statutes by judicial fiat. With NAMUDNO last year, and Skilling and PCAOB this year, lots of legislating from the bench, albeit for apparently varying motivations that I will explore at some point this week.
- Christian Legal Society: No one would have blamed Justice Ginsburg for skipping today, but in she came to read her majority opinion.
Also, it appears that Justice Breyer took this morning to be his coming out party as the liberal bloc’s new leader. His two dissents from the bench were lengthy and passionate, and I got a palpable sense that he had seized the torch from Stevens, whether or not it had actually been passed to him.