The First Lady of First One @ One First and I just returned home after a day at the National Museum of American History to find the Internet bearing two holiday gifts for F1@1F:
- For the third time this year, F1@1F will be in the pages of the New York Times. Adam Liptak’s Sidebar column for tomorrow’s paper, in which he writes about Sotomayor’s spreading her liberal wings this term, concludes with references to this “amusing and astute post.” Thank you for all of your support this year, Adam!
- In addition, my ABA Journal column from the final day of the 2009-10 term is among the “Recommended Reading” in this year’s edition of the Green Bag Almanac and Reader (see page 9). I’m quite humbled and honored to be listed among some giants in Supreme Court reporting, and only hope my luck continues into 2011.
Thanks to all of my readers for making 2010 an extraordinary year. Keep your eye on the site later this week for a post commemorating F1@1F’s one year anniversary.
Adam Liptak of the New York Times has just written a long piece on the Roberts Court’s ideological leanings according to leading political scientists. It’s well worth a read, especially for those trained in the law who are used to assessing the Court qualitatively – Liptak engages with the quantitative research that codes and crunches opinions that most of us just read.
Even more fun, the Times has included an interactive feature for us to test how we measure up to the Roberts Court on hot button cases.
If you really enjoy Liptak’s subject matter, I suggest you also give a look to some of the political science books under my “Foundational Texts” in the sidebar to the right. In addition, give a click to the Supreme Court Database, which you can also find linked in my “Resources” sidebar section.
Now that F1@1F has made it into the NYT and the BLT regarding the SCOTUS door closure, I’m taking it upon myself to collect stories, photos, and videos of readers’ experiences approaching and entering the Court’s bronze doors. Please send me what you have. If I get enough by this time next week, I will post them all here on the site.
Also, Steve de Man, a friend I met in line at Doe v. Reed and CLS, has started a Facebook group, “Supreme Court: please reopen your steps.” I encourage those who have walked through the doors, hope one day to walk through the doors, or simply value the experience’s availability to American citizens, to join up. The Court isn’t likely to change its position, especially because it spent so much time and treasure creating the new entrances to the visitor center, but it’s worth registering your dissents.
Finally, Lawrence Hurley at Washington Briefs has posted a glimpse at the steps’ new, dismal scene. Too bad we likely will have to wait for an even more dismal scene (skip to 20:00, watch through 24:00) before anyone else–spare perhaps the next justice–may walk through those doors again.
F1@1F has made the New York Times for the second time in two months, this time in a piece entitled, “Step Away from the Courthouse Doors“:
“For those who line up at the Court for each of its public sessions, this process marks — quite literally — a rite of passage from sidewalk to sacred space,” Mr. Sacks wrote. “To deny these men and women this dramatic piece of their pilgrimage is quite mistaken.”
For those of you new to the site, please do stick around and explore. You’ll find the above quote in the immediately prior post. But don’t stop there: I suggest starting from the beginning! And to keep up with future posts from F1@1F, you may subscribe via RSS or email and follow my twitter feed, all available on the right of this page.
In today’s New York Times Week in Review section, Peter Baker writes of “Obama v. Roberts: The Struggle to Come“:
The urgency is greater this year since the Citizens United decision in January, in which the Roberts court threw out precedents to rule that corporations have First Amendment rights to spend money in election campaigns. Advisers said the ruling crystallized for Mr. Obama just how sweeping the chief justice was willing to be. Indeed, some around the president suspect that Chief Justice Roberts, after moving incrementally in his first few years on the bench, has taken a more assertive approach since Mr. Obama took office.
This assertion defies facts. In fact, I began F1@1F to explore whether the opposite holds true–that Chief Justice Roberts has guided the Court more modestly under Democratic electoral dominance than he had at the start of his Chiefdom. From F1@1F’s very first post:
During the 2006-07 term, the first full term in which both Chief Justice Roberts and Justice Alito served together, Republicans controlled the White House and both chambers of Congress. Meanwhile, the Roberts Court aggressively pushed rightward on abortion, student speech, school desegregation, gender discrimination, and campaign finance. The Court’s 2007-08 term proceeded alongside a divided government with a Republican President and Democratic majorities in the House and Senate. The Court reflected the division: President Bush, seeking a legacy, saw a conservative interpretation of the Second Amendment win out in Heller; the Democratic Congress, elected in a wave of anti-war sentiment, found its hostility to Bush’s war on terror policies reflected in the Court’s granting habeas corpus rights to Guantanamo detainees in Boumediene. Last term, which straddled the Bush and Obama presidencies, found the Court taking a blockbuster case in in September 2008 that threatened to invalidate a key civil rights provision of the Voting Rights Act of 1965, but pulled back with an 8-1 decision in June 2009 upholding the provision. This term, the first one fully operating alongside a Democratic Presidency and Congress, is progressing in an almost post-partisan fashion, as if the conservative Court has taken to heart President Obama’s overtures to the Right unwelcome among Congressional Republicans. The Court is reckoning with one case that pits liberal values against liberal values, another in which two conservative values clash; further, McDonald v. City of Chicago may result in a grand bargain in which the conservative Heller majority can extend its interpretation of the Second Amendment to the states by breathing new life into a clause of the Fourteenth Amendment that could strengthen constitutional protection for liberal causes. In fact, the only case that threatens a drastic shift to the right in a politically salient issue is Citizens United, the campaing finance case I camped out for in September.
Since I wrote that in December, Citizens United has emerged, as expected, as the Court’s one big rightward expenditure of its political capital this term. And although the McDonald oral argument put to death my speculation of a grand bargain between the Court’s liberal and conservative blocs, its result–incorporation of the Second Amendment to the states–will not cause a national backlash and political firestorm.
The OT09 docket’s conspicuous absence of any other red-hot button case is, in my opinion, hardly an accident. Roberts knows just how much–or little–political capital his Court possesses to achieve conservative gains under a Democratic electoral mandate, and he has picked his battles accordingly. Baker’s sources are in plain error to use Citizens United as proof of a more aggressive, confrontational Roberts Court.
Baker’s article was not a total wash, however. Noting the Chief Justice and the President’s public colloquy of late, the article concludes:
The debate between the men, by necessity, takes place in this way — indirectly, and soon through the confirmation hearing of a new nominee. Christopher Edley Jr., an Obama adviser and dean of the law school at the University of California at Berkeley, said it was a shame the two could not have at it one on one.
“Televise this chief justice and this president on stage at the Kennedy Center for three hours talking about the role of government and the future of our polity,” Mr. Edley said. “This historic clash of intellectual titans would be the most powerful civics lesson since the Federalist Papers, and we could sure use it.”
We sure could.
UPDATE: Meanwhile, in The New Republic, Barry Friedman and Jeff Rosen support what I’ve written here several times over (or the other way around – as they are law professors who write books, not blogs):
How will the Supreme Court respond to these attempts to enlist it in a war with the president and Congress? If history is any predictor, the justices won’t be interested in a sustained assault. As both of us have written in recent books, on the big issues, over time, the Court tends to come into line with public opinion. Think here of gay rights, women’s rights, and abortion. And when the Court has wandered outside the mainstream–on issues like the death penalty or economic regulation–it has quickly retreated after encountering resistance from the public, Congress, or the president. The Court, in other words, is very sensitive to the possibility of backlash against its actions; and if anything, the heated reaction to its recent decision striking down campaign finance restrictions on corporations is only likely to make it more so.
Which brings us to the Roberts Court. Is it likely to stand in the way of Obama and the Democrats’ agenda? What will happen, in particular, with health care?
We aren’t seers, and a lot can happen before any of this makes its way to the Court. But nothing we’ve seen—including January’s decision in Citizens United—leads us to believe that the Court is likely to behave differently in the future than it has in the past.
Which means that the Court is going to be hesitant to launch a sustained challenge to the core of the Democratic agenda. And in the unlikely (but not impossible) event that it does decide to launch a sustained challenge, the justices will find themselves under attack in return as long as the Democrats still have popular support. If that happens, history suggests that such attacks on the Court will eventually precipitate some kind of judicial retreat.
Had I had any gas left in the tank after Monday/yesterday’s 26-hour vigil, I’d have gotten back in line for this morning’s case, Samantar v. Yousuf. But after I submitted my ABA Journal piece on McDonald last night, my body and mind shouted “no más.”
Samantar does look to be a very interesting case that sadly flew under the radar this term. In lieu of F1@1F coverage, check out the following links:
- “A California Reckoning in a Case of Abuses Abroad,” NYT 1/30/10
- “At 74, Fairfax resident, a former Solamali prime minister, may face war-crimes lawsuit,” WaPo 3/2/10
- “Can Torture Victims Sue Their Tormenters?” NPR 3/3/10 – Nina Totenberg’s preview from today’s Morning Edition
As I publish this post, the respondent’s counsel should be fielding the justices’ questions. Once the SCOTUS press corps starts publishing their oral argument write-ups, I’ll link to them here.
Adam Liptak of the NYT has scooped my McDonald vox populi column and I can’t thank him more for doing so.
WASHINGTON — Mike Sacks likes to be the first person in line for big Supreme Court arguments, and he was feeling pretty confident when he arrived at the court Monday morning around 8, 26 hours before the court would hear a big gun-control case.
To all the readers directed to F1@1F from Mr. Liptak’s story, please enjoy your stay and be sure to subscribe!
The plane, a 50-seat regional aircraft that was less than a third full when it took off from La Guardia Airport, had been climbing through the early-morning sky for about 25 minutes. A 17-year-old passenger in a whitish sweater took out something he had carried onboard, and strapped it onto his wrist and his head.
To some people in New York, that is a relatively common sight: an observant Jew beginning the ritual of morning prayer. But to at least one person on US Airways Express Flight 3079 on Thursday — the flight attendant — it looked ominous, as if the young man were wrapping himself in cables or wires. […]
The pilot decided to divert the Kentucky-bound plane to Philadelphia. In less than 30 minutes it was on the ground, police officers were swarming through the passenger cabin, and the Transportation Security Administration was using terms like “disruptive passenger” and “suspicious passenger” to describe the boy.
An hour or so after that, Lt. Frank Vanore, a spokesman for the Philadelphia police, had another explanation.
“It was unfamiliarity that caused this,” he said.
He said the flight crew had never seen tefillin, small leather boxes attached to leather straps that observant Jews wear during morning prayers. The flight crew “didn’t understand what it was,” he said, and the pilot “erred on the side of caution and decided to radio that in and to divert the flight.”
I reluctantly make this post because it is my third consecutive reliance on an NYT story and I’d like to present a bit more variety in my sourcing at this early stage in F1@1F’s life. But my will has been overborne by this irresistible piece of English-major-turned-law-student porn:
Barnhouse said the opportunity to recover taxes on the cigarettes was an “inchoate” interest, not yet fully formed. “Any recovery would not be property until it became choate, until there was an amount of money assigned to it,” he explained.
Scalia stopped Barnhouse cold. “There is no such adjective,” he declared. “I know we have used it, but there is no such adjective as choate. There is inchoate, but the opposite ofinchoate is not choate.”
Not willing to let the matter go, Scalia went on, “It’s like gruntled,” noting that some people mistakenly think that the opposite of disgruntled is gruntled. …
By ruling from the bench on what is and isn’t a word, Scalia is following in the footsteps of his former colleague William Rehnquist, who once interrupted the argument of a lawyer who dared to use the nonstandard word irregardless. “I feel bound to inform you that there is no word in the English language irregardless,” Rehnquist said. “The word is regardless.”
Speaking of reluctant, the article reminds me of a recent dinner-table-turned-email debate I had with my friend Hannah Seligson–read her work at TDB and buy her new book!–over the use of the word “reticent” as a synonym of “reluctant.” I stood firm against its definition’s aggressive expansion beyond its expression-based borders, whereas she agreed with Merriam-Webster’s appeasement of “reticent’s” imperial ambitions. For such a battle between my originalist and her evolving lexiconic attitudes, cf. back to the NYT Mag:
Despite such complaints, choate developed a momentum all its own, at least in American legal circles. By the time of the 1954 Supreme Court case that Scalia later sought to expurgate, the word had become enshrined in property law, even lending its name to the so-called choateness doctrine of liens. Choate now appears in most major U.S. law dictionaries, and Garner says it is accepted and used “even by those who deprecate its origins.” Well, except for one justice railing against a word he has decided isn’t a word after all, no matter how many dictionaries it enters.
Dictionaries be damned: side me with Scalia on this one.