This morning at Georgetown Law’s symposium in celebration of Justice Stevens, I had the good fortune–and great honor–of speaking with the Justice himself for a few minutes. Upon my introducing myself, I was surprised–and greatly honored–to learn that he was familiar with my work. So as I handed him a printed copy of my article recounting his final oral argument, he asked if it was the one he saw in the post the other day.
“The Post?” I asked. “I’ve written for the ABA Journal and Christian Science Monitor, but never the Washington Post.” [Note: This conversation has been reconstructed from my memory; the quotations are accurate portrayals of our discussion, but not of the exact words spoken.]
“No, I received something of yours in the post.”
He opened the envelope and looked at the first few sentences of the story.
“This is not the same one,” Justice Stevens said, as he thanked me for the new reading material. And whoever mailed the justice one of my columns, I thank you.
He then asked my opinion on cameras in the Court, perhaps implying that the article he had already seen was the one from June’s final day of the last term.
I told him that I am fully in favor of televised proceedings. He mentioned that there could be some adverse consequences. I responded that his former colleagues could be trusted to smack down any grandstanding lawyers, as they have always done.
“And what about the justices themselves?”
“The Daily Show can keep them in check,” I suggested. By his knowing laugh, I submit that the Justice agreed with me.
I had the feeling that Stevens trotted out the commonly voiced concerns about cameras in the Court not because he believed in them, but rather because he wanted to hear how easily a young Court watcher could swat them away. It is disappointing that the Court’s reluctance to televise its oral arguments stems from its lack of faith in the Bench and Bar to behave themselves in front of the cameras.
As the event began and the panelists began recounting their stories of Justice Stevens’s “humble, devastating, and kind” demeanor from the bench, as former Solicitor General Paul Clement aptly described it, I kept thinking how tragic it is that the vast majority of Americans never had a chance to see Justice Stevens in action.
At the end of each oral argument week, starting today, the Court is releasing the audio recordings of the week’s proceedings. These recordings invite listeners to listen for themselves to how the Court deals with the country’s thorniest legal issues. But as exciting as it is to hear Justice Kagan’s first question of her career, Justice Scalia do his best “Sh*t My Dad Says” impression with his various curmudgeonly comments, Justice Ginsburg re-upping her feminist cred, or Justice Alito unwinding his increasingly compelling hypotheticals, we are many years removed from the radio days of Justice Stevens’s youth.
For every argument that the justices will spin out of control and play to the cameras, there are forceful answers in return. First, some justices already play to the portion of the public that can attend, so what’s the damage if the rest of America sees their antics? The law should be engaging, not forbidding, and there’s much to be said for Chief Justice Roberts’s more relaxed, laugh-tracked regime, even if a few commentators here and there will take some hypotheticals out of context.
Second, televised proceedings will allow more Americans to know the names and faces of Supreme Court justices. As public servants who now undergo major media blitzes upon their nominations to the bench, the justices should not feel entitled to perpetual anonymity. And really, most Americans, though valuing the opportunity to watch the Court in action, will not commit themselves to C-Span three days a week so to better track the justices down in their Northern Virginia supermarkets.
Finally, part of the in-the-flesh experience of Supreme Court arguments is not only watching the justices speak, but also watching them listen. Several panelists at today’s symposium expressed their deep appreciation of Stevens’s ability to listen patiently and politely to the arguments as the other justices’ seemed preoccupied with internally formulating their next questions. These scenes cannot be conveyed over audio. From Justice Thomas’s brief-thumbing to Justice Ginsburg’s trained stare at the advocates, the justices’ listening styles may speak as loudly as their amplified voices about their commitment to the case before them.
Until that day arrives when we can watch the justices go about their business, however, today’s footage from their class photo session will have to suffice.
Let’s hope that these nine men and women, all of whom, like Justice Stevens, are or will be national treasures by the time their tenures have expired, will soon show enough faith in themselves and the public to finally put cameras in the Court.
This piece has been cross-posted at The CockleBur.
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.
Back when I started up F1@1F, Kiyemba v. Obama stood to be argued this morning as the next installment of the Court’s Guantanamo cases, following 2008′s landmark ruling in Boumediene v. Bush. The case asked whether a federal judge had the power to relocate into the United States the few remaining Uighurs held at Guantanamo after they were determined not to have been enemy combatants.
But then the Swiss agreed in early February to resettle the remaining Uighurs just before the Government’s brief was due to the Court. Despite some arguing that the Court should still hear the case for the legal issues presented, the Court remanded the case for further review, stating that “[n]o court has yet ruled in this case in light of the new facts, and we decline to be the first to do so.” Five of the Uighurs remain in Guantanamo after refusing multiple relocation offers from countries without established Uighur communities.
Without Kiyemba on the docket, this week has held little promise for F1@1F. I thought about going to this morning’s remaining case, New Process Steel v. National Labor Relations Board, just to see what the line would be like for a case asking whether two people equals three people (really!). But my alarm this morning also woke in me some bleary-eyed clarity: the Court could be handing down major opinions from its October sitting this morning and I would be attending a lunch talk by Judge Diane Wood. I could very well be writing about these things through the afternoon and evening, so I chose to get a few more hours of sleep rather than watch the justices themselves pass out during an argument about an NLRB quorum.
Without writing material from the Court, I went off to see Judge Wood speak at an ACS lunch discussion. Whether she was in DC solely for this event, or if she had some more important matters in DC, no one said. In fact, her talk and the accompanying Q&A focused almost exclusively on Seventh Circuit practice.
The only noteworthy quotes came from Tom Goldstein of SCOTUSBlog, who, in introducing Judge Wood, recognized the “undeniable subtext” of why I and nearly all of the Supreme Court press corps was in attendance: “if the stars align and the Left shows some guts, Diane Wood should be on the Supreme Court.”
It was a necessarily glowing, but no less sincere, introduction from the man who predicted last month that President Obama would pass over Wood for the younger, more confirmable Elena Kagan. F1@1F, however, continues to maintain that Wood will be the next justice should Justice Stevens retire at the end of this term.
Even though I left the talk without a story, it was good to have a potential before-she-was-a-justice moment. Still, here’s to a more fruitful next week for F1@1F.
Finally, two bits of miscellaneous debris from yesterday:
- ABC’s Ariane de Vogue wrote yesterday about Goodwin Liu’s nomination to the Ninth Circuit, with a sub-headline of, “Contentious Hearing for Lower Court Nominee to Foreshadow High Court Battles to Come.” The article reports out and builds upon what I observed here in January.
- The Atlantic’s Marc Ambinder has a “you heard it here first” post about Ben Mizer, Ohio’s Solicitor General. Ambinder seems to suggest deeply between the lines that Mizer, who argued before the Court yesterday, stands a chance well down the line of becoming a Justice.
UPDATE: Dahlia Lithwick makes me wish I went to this morning’s case after all…
C-Span has just released its full video archive. Boy oh boy.
My very first memory of the Supreme Court was watching Justice Thurgood Marshall’s retirement press conference with my father in our family room. I was almost nine years old at the time and had no idea who this man was, but understood that if my dad was watching him talk, then he must have had something important to say.
Nevertheless, all I saw was an old, ailing, ornery man talking about stuff I didn’t understand. Frankly, I confused Marshall’s sense of humor and cursory “I Don’t Know’s” with something similar to my grandmother’s senility.
Since I started following the Court a few years ago, I’ve been searching for this video to straighten my memories out. Well, here it is:
The New Yorker just released Jeffrey Toobin’s long profile on Justice Stevens. Other parts of the blogosphere are commenting on Stevens’s hedging over his seemingly imminent retirement, so here are a few other notable law-and-politics excerpts:
Stevens is an unlikely liberal icon. When he was appointed, he told me recently, he thought of himself as a Republican and always had—“ever since my father voted for Coolidge and Harding.” He declined to say whether he still does. For many decades, there have been moderate Republicans on the Court—John M. Harlan II and Potter Stewart (appointed by Eisenhower), Lewis F. Powell and Harry Blackmun (Nixon), David H. Souter (Bush I). Stevens is the last of them, and his departure will mark a cultural milestone. The moderate-Republican tradition that he came out of “goes way back,” Stevens said. “But things have changed.” [...]
Still, Stevens’s views suggest a sensibility more than a philosophy. Many great judicial legacies have a deep theoretical foundation—Oliver Wendell Holmes’s skeptical pragmatism, William J. Brennan’s aggressive liberalism, Scalia’s insistent originalism. Stevens’s lack of one raises questions about the durability of his influence on the Court.
But, more than anything, his career shows how the Court has become a partisan battlefield. In that spirit, Roberts last week denounced President Obama’s criticism of the Court in his State of the Union address, saying that the occasion had “degenerated to a political pep rally.” When Stevens leaves, the Supreme Court will be just another place where Democrats and Republicans fight. [...]
After his clerkship, Stevens returned to Chicago and took a job at one of the city’s first religiously integrated law firms. Abner Mikva clerked on the Supreme Court the year after Stevens, then returned to Chicago to start a career in public life. “Those were the days when there was such a thing as a moderate Republican, and that’s what he was,” Mikva said of Stevens. “He was a pretty conservative Republican on economic issues, but he was always a great progressive on civil rights and social rights.” [...]
Stevens, throughout his years on the Court, has drawn not just on history and precedent but on contemporary values and even on his own experience as a judge. According to Stevens, that approach has its origins in his brief stint as a lawyer on the staff of the House Judiciary Committee. “That was probably one of the most important parts of my education,” Stevens told me. He recalled an incident involving an antitrust law: “I remember explaining one of the tricky problems in the statute to one of the members of the committee. I got all through it, and he said, ‘Well, you know, let’s let the judges figure that one out.’ ”
What that told him was that “the legislature really works with the judges—contrary to the suggestion that the statute is a statute all by itself,” Stevens said. “There is an understanding that there are areas of interpretation that are going to have to be filled in later on, and the legislators rely on that. It’s part of the whole process. And you realize that they’re not totally separate branches of government—they’re working together.”
Via Ben Smith @ Politico, Justice Scalia believes that the Civil War settled the constitutional question of secession:
[T]he answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, “one Nation, indivisible.”)
The screenwriter that posed the secession question to Scalia may have found better luck if he inquired about something a little closer and ostensibly less soaked in blood. Something like, say, the constitutionality of affirmative action.
Indeed, a Michigan-based pro-affirmative action group, By Any Means Necessary, has filed a class action lawsuit against California’s Prop 209, which upon its 1996 passage amended California’s constitution to bar affirmative action in the University of California system.
There is no guarantee that this suit will move forward. But BAMN appears emboldened by two factors: 1) the current Prop 8 challenge in a California federal district court, and 2) the Roberts Court’s hostility to race-based policies and initiatives.
Yet just because a federal court proceeded with trial in the Prop 8 case, and that case seems destined to go to a Supreme Court that has issued rulings favorable to gay rights, does not mean that Prop 209 will get the same treatment. First, the Ninth Circuit unanimously smacked down a challenge to the amendment in 1997. Second, Justice Kennedy, who may or may not be favorable to gay rights when it comes to marriage, is absolutely and unequivocally against affirmative action: he dissented Metro Broadcasting, was in the majority in Adarand, dissented in Grutter, was in the Gratz majority, was Parents Involved‘s fifth vote, and penned Ricci.
Justice O’Connor in Grutter upheld affirmative action. Justice Alito will have no such sympathies. Unless Kennedy has a Casey moment and steps back from the brink of overturning another liberal, Burger Court era precedent, BAMN should count the votes and fire its counsel for malpractice: if this case goes to the Supreme Court, it will find five justices who will not hesitate in ending affirmative action once and for all. And they will almost certainly use Chief Justice Roberts’s concurrence in Citizens United to justify reversing Grutter within a decade of the decision.
Kennedy voted against his previous voting record and upheld abortion in Casey because O’Connor’s investment in the law and Souter’s fealty to stare decisis convinced Kennedy that Roe should not be entirely felled. With neither O’Connor nor Souter remaining on the bench, I see no way affirmative action will survive Kennedy’s longstanding antipathy to race-conscious laws. In fact, we may sooner see the justices rule that secession passes constitutional muster. And even Scalia, with his famously alienating pen, could write an opinion that holds a nine-member majority on its unconstitutionality.
Anyone at Yale Law want to send me notes from Justice Breyer’s lectures tomorrow and Tuesday on the Court and public acceptance ?
The Monday lecture will be hosted by Yale President Richard Levin and is titled “History: Challenges the Court Has Faced.” [...]
Yale Law School Dean Robert Post ’77 will host Tuesday’s lecture, “Future: Will the People Follow the Court?” and Potter Stewart Professor of Constitutional Law Paul Gewirtz ’70 will introduce the Justice. [...]
The lectures are based on a book Justice Breyer is currently completing, provisionally titled Making Democracy Work, to be published later this year by Alfred A. Knopf. The lectures will address the Supreme Court’s role in helping to make the American Constitution work well in practice. They will discuss key moments in the Court’s history that illustrate the importance of public acceptance of the Court’s decisions, as well as challenges the Court has faced in achieving such public acceptance. Justice Breyer will also share his thoughts on what the Court must do in the future to make the Constitution work well in practice and to maintain the public trust it has earned.
Present at tonight’s State of the Union address: Chief Justice Roberts and Justices Kennedy, Alito, Ginsburg, Breyer, and Sotomayor–who put on her neck doily for the occasion.
Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.
NYT’s The Caucus blog agreed with Alito:
But in his majority opinion in the case, Citizens United vs. the Federal Election Commission, Justice Anthony Kennedy specifically wrote that the opinion did not address the question of foreign companies. “We need not reach the question of whether the government has a compelling interesting in preventing foreign individuals or associations from influencing our Nation’s political process,” he wrote. The court held that the First Amendment protected the right of American corporations to spend money on independent political commercials for or against candidates. Some analysts or observers have warned that the principle could open the door to foreign corporations as well.
Here’s more from Politifact.com. So let’s not be so fast to call this Alito’s “Joe Wilson Moment.” Last year Wilson had no proof to shout that Obama lied. Even if Alito broke from the justices’ traditional SOTU decorum, he certainly knows what Kennedy’s majority entailed and what it didn’t, however it may have been characterized by Stevens in his dissent.
For the Justices’ actual words on foreign companies’ contributions, see Kennedy’s opinion at pp. 46-47 and Stevens’s dissent at pp. 33-34.
UPDATE: Alito’s break with decorum made it to Wikipedia for a split second (h/t Scott Hechinger, NYU 3L):
During Barack Obama’s January 27, 2010 State of The Union Address, Justice Alito can be seen shaking his head in the negative and uttering the words “That’s Not True.”
Also, Ben Smith at Politico has the stand-alone scene.