Tag Archives: souter

Justice Stevens

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So, it looks like Justice Stevens might be retiring next spring, or so say the Supreme Court kremlinologists. Justices usually hire clerks a year in advance, and Stevens has hired just one for the 2010-11 term instead of the usual four. The man’s going to be 90 years old in April, so it wouldn’t necessarily be surprising. But I thought he was going to stick around until death, and he apparently still plays tennis regularly. Anyway, retirement announcements don’t usually come until the spring, so we won’t know for a while.

If Stevens announces retirement effective at the beginning of the summer recess, like Souter did, that would peg his retirement at about 300 days from now, and he might just miss surpassing Justice Field as the second-longest-serving justice. If he announces a retirement upon the swearing-in of his successor, like O’Connor did, then that would be a couple of months longer (or even more, if we get a Roberts–>Miers–>Alito situation, like we did four years ago), and in that case he would definitely surpass Field, leaving him second only to William O. Douglas in longevity — who happens to be the man Stevens replaced on the bench in 1975.

Think about that. If Stevens retires next spring, then only two justices will have held that particular Supreme Court seat since 1939. And who held it before Douglas? Louis Brandeis! That’s how long it’s been.

Sotomayor

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This is a busy day for legal topics I’m interested in: the U.S. Supreme Court and gay rights law. Within the course of several hours we had the Sotomayor nomination and the California Supreme Court’s decision on Prop 8.

First, Sotomayor. She seems like a decent enough pick for the Court, but beyond her life story and the Jeff Rosen hack job on her, I don’t know much about her. I was hoping for a fierce liberal advocate to counter Scalia — I would have loved to see Obama pick Pam Karlan. Will Sotomayor be that fierce liberal advocate? Maybe, maybe not; I don’t know. You can read summaries of her past appellate rulings here. At any rate, it’s sure to be an interesting confirmation process.

As for the Prop 8 decision: no real surprise. The court upheld Prop 8 but kept the existing same-sex marriages intact. This is an incredibly long opinion — the main opinion alone is 135 pages — and I haven’t had a chance to read much of it. But the decision is ridiculous for the simple reason that it allows a majority of a population to strip a minority of equal protection of the laws. As the sole dissenting justice wrote today:

The equal protection clause is… by its nature, inherently countermajoritarian. As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect.

This case is really about whether a particular method to change the California Constitution is itself a violation the California Constitution. I’ve skimmed the decision and it seems to spend a lot of ink on the difference between a constitutional “revision” (which requires the legislature’s imprimatur) and a constitutional “amendment” (which does not), but it doesn’t really matter, because whatever you call it, changing a constitution is supposed to be difficult. As I wrote last year, it should take more than a simple majority to change a constitution. The whole point of a constitution is to have a restraint on day-to-day political passions. A constitution is supposed to be higher than ordinary law and therefore harder to amend. If it’s no different to pass a constitutional amendment than to enact a popular initiative, then you have mob rule. If not for decisions by the United States Supreme Court that found race and sex discrimination to be violations of the U.S. Constitution — which outranks the California Constitution — then it would be possible for the general population of California to enshrine constitutional discrimination against blacks and women today. The process for amending the California Constitution is nonsensical.

Our founders didn’t believe in direct democracy; they believed in representative government. They believed in the wisdom of having a particular group of people, chosen by the populace, to legislate and act in their best interests. They believed that this political class had “virtue,” an amorphous concept that I don’t think really exists, but put virtue aside and the point remains that legislators are usually smarter and more thoughtful than the populace at large. (There are exceptions, of course, such as Michelle Bachman.) The stupidly simple California amendment process flies in the face of the constitutional and political theories in which our founders believed.

Nevertheless, although this decision is a big disappointment for supporters of gay rights, I find myself not too concerned in the long run. Constitutional jujitsu is possible here: since it’s so easy to amend the state constitution, all you need is a simple majority to overturn Prop 8. The vote in November was close, 52% to 48%. Attitudes continue to change, and at some point — hopefully soon — a majority of Californians will support same-sex marriage rights, and Prop 8 will lie in the dustbin of history.

A Gay Justice

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There are two lesbians on various people’s shortlists for Justice Souter’s replacement on the Supreme Court: Kathleen Sullivan and Pam Karlan, both professors at Stanford Law School. (Karlan was a professor at UVa Law when I went there, but I wasn’t in any of her classes.)

I don’t think it’s going to happen — this isn’t a “West Wing” episode — and Karlan doesn’t seem to think she’ll get the nod, or else she would have been less vocal about the vacancy. But some people think Karlan would be a brilliant justice.

Scotusblog on Souter

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Tom Goldstein at ScotusBlog has interesting thoughts on Justice Souter’s retirement and his possible replacements.

David Souter will be the first Supreme Court justice whose career I’ll remember from start to finish. I was too young to know about Sandra Day O’Connor’s appointment; I was 16 when Souter was appointed in the summer of 1990, living at my aunt and uncle’s house in New Jersey on a break from Japan. Souter’s will be one of the shortest terms in recent Supreme Court history, at just 19 years. O’Connor served for more than 24 years; Rehnquist, more than 33; Blackmun, 24; White, 31; Marshall, 24; Brennan, 31. The last justice to serve fewer than 20 years was Lewis Powell, from 1972 to 1987.

So Souter will retire at age 69 and go back to New Hampshire, where he can spend the rest of his life hiking, reading, and eating his daily lunch of a whole apple (including the core) and yogurt, seemingly unchanged by the city where he’s spent the last two decades. I wish him a happy retirement.

Concurrence Hell

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I enjoy reading the little paragraph at the end of a Supreme Court decision syllabus summarizing who voted with whom. They tell you how complicated any particular court decision is.

Here are some examples, from simplest to most complicated.

First, there’s the per curiam opinion, which is unsigned, and therefore needs no summary at the bottom of the syllabus telling who voted with whom:

There’s the unanimous opinion:

SOUTER, J., delivered the opinion for a unanimous Court.

Then there’s the case with a lone dissenter or concurrer:

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion.

There’s the case with a few dissenters signing one opinion:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

There’s the case with a partial concurrence or dissent:

SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined, except as to Part IV.

There’s the case with both a concurrence and a dissent:

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, SOUTER, THOMAS, GINSBURG, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion, in which ALITO, J., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined.

There’s the case with multiple concurrences and/or dissents:

ALITO, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and KENNEDY, J., joined. KENNEDY, J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined.

There’s the case where it gets a little more complicated:

SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined, and in which STEVENS and GINSBURG, JJ., joined as to Part III. THOMAS, J., filed a concurring opinion, in which SCALIA, J., joined. GINSBURG, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, J., joined.

Or even more complicated:

ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III–A, and III–C, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined, and an opinion with respect to Parts III–B and IV, in which SCALIA, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

But I think my favorite is this one, from a 2003 campaign finance decision (which, incidentally, was gutted last week):

STEVENS and O’CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O’CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA §305, and in which THOMAS, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O’CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion SCALIA, J., joined as to Parts I, II—A, and II—B. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J., joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which THOMAS, J., joined with respect to BCRA §213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA §305, in which GINSBURG and BREYER, JJ., joined.

So much for judges being mere umpires!

Supreme Court Struggle

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If the Tony Awards are the gay Superbowl, then the last week in June is the Superbowl for law geeks. The last week in June is the final week of the Supreme Court’s term, the week when the Court usually issues its rulings on the toughest or most controversial issues on the year’s docket. These often result in the most complicated lineups, with pluralities, or splintered majorities, or numerous concurrences and dissents, which is why it takes so long to get the opinions issued. (Conveniently, this timing also gives the Justices an excuse to get the heck out of Dodge right after they rile up millions of people.)

There’s been a lot of anguish among liberals about Monday’s three 5-4 decisions that could be construed as leading to “conservative” results: Morse v. Frederick, in which the Court found it constitutional for a principal to punish a student for unfurling a banner that said “Bong Hits 4 Jesus” at a school-sponsored event; Federal Election Commission v. Wisconsin Right to Life, in which the Court essentially said that corporations and organizations have the presumption of freedom to endorse candidates by flooding the election system with their money; and Hein v. Freedom From Religion Foundation, Inc., in which the Court said that taxpayers do not have standing to challenge the White House Office of Faith-Based Initiatives merely because they are taxpayers. Additionally, tomorrow morning at 10 a.m., the Court will probably gut affirmative action laws in two school segregation decisions by a 5-4 vote.

None of this should be surprising. As the Washington Post’s Andrew Cohen wrote today:

Justice Samuel Alito is more conservative than was his predecessor, Sandra Day O’Connor? Go figure. Chief Justice John G. Roberts Jr. is a lot less beholden to court precedent than we were all led to believe? Can’t be. He told the Senate Judiciary Committee over and over again during his confirmation hearing that he would respect precedent and try to build consensus on the court. Justice Anthony Kennedy isn’t the second coming of the moderate O’Connor or the more liberal Souter? What a surprise! The election of 2004 (and 2000) mattered in shaping the court? Who knew?

However – and this is where my post take a 90-degree turn:

I don’t think the conservative justices are demons. (Not all of them, anyway.)

Because the thing is – law is hard. If these were easy decisions, they wouldn’t need to be decided by the Supreme Court.

Okay, not totally true – there are plenty of 9-0 decisions each term. But there are always a bunch of 5-4 decisions as well, and even 6-3 decisions.

Granted, not every 5-4 decision is hard. For example, Bush v. Gore was easy as pie but five justices blatantly and deliberately misread the law.

But they’re usually hard.

There are many times when I read (or read about) a Supreme Court decision and feel angry or annoyed at the result, and I think to myself, “Damn that Justice X!” or “Damn that Justice Y!” And yet… sometimes, underneath my anger and certitude, I find myself uneasy. Because even if I’m angry at the result, I’ll think to myself, actually… those justices do have a point. Or at the least they have a good argument.

I’m not too angry at the student speech decision – the majority made clear that it’s a narrow decision. (It was only Thomas, in his lone concurrence, who wrote that students should have no free speech rights at all, not even as to political speech.)

As for the decision about the Office of Faith-Based Initiatives, it wasn’t really a case about the separation of church and state; it was a case about standing. (This sums it up well enough.) Is the commingling of church and state an issue that’s so crucial that it should trump the usual rules of standing? You can argue no, because isn’t the Court only supposed to rule on actual controversies between aggrieved parties? You can argue yes, because if there’s no standing here, than where are we supposed to turn when the government violates the First Amendment? (Arguably, a secular institution could apply for Faith-Based Office funding and then sue when it’s denied that funding.)

Then there’s the campaign finance decision. On the one hand, shouldn’t Congress be allowed to make laws that try to fix our screwed-up campaign finance system? On the other hand, under the First Amendment right to free speech, shouldn’t an organization have the right to spend money on ads to take positions on the issues of the day, even if those ads happen to mention political candidates? Aren’t organizations allowed to campaign in favor of candidates?

I don’t really know where I stand with regard to many Court decisions. It doesn’t really matter what I think – I’m not a Supreme Court justice, I don’t have to make the decisions. But for my own benefit, for the sake of my own intellectual integrity, I sometimes struggle with these matters. (And heck – I just find it interesting.)

The fact is, I think I agree with the so-called “conservatives” more often than I’d like to. Not all the time – but more than I’d like to. And that bothers me.

The fact is, these are hard decisions. (Say it again: “Law is hard!”) They’re not cut and dried. The law does not exist in a vacuum; there is a tension between the law’s crisp, satisfying logic and the injustice it can wreak on actual human beings.

The problem, as Dahlia Lithwick pointed out today, is that the majority on the Roberts Court – and particularly the newcomers Roberts and Alito – just seem “mean.” But it’s not really that they’re mean; it’s that they seem to lack humanity.

We’re looking for some sort of acknowledgement from the majority that these are hard decisions, not cut and dried; that the law does not exist in a vacuum; that there is a tension between the law’s crisp, satisfying logic and the injustice it can wreak on actual human beings.

The justices avoid any mention of humanity because they’re afraid to admit to us that they themselves are human. That’s why they wear black robes – to create the illusion that they’re high priests with exclusive access to the knowledge of What the Law Is. They fear that if they admit that these are hard questions, they might lose legitimacy in the eyes of the American people.

But they would appear more legitimate to us if they openly struggled with these issues. They would appear more legitimate if they acknowledged the truth – that the world exists in shades of gray.

Lithwick on Hamdan

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I love Dahlia Lithwick. (You can see all her Slate columns here – I have it bookmarked so I can see whenever she has a new one.) Today she provides an entertaining summary of yesterday’s Supreme Court arguments in Hamdan v. Rumsfeld. Apparently Justice Souter got uncharacteristically angry. As for another justice, Lithwick writes, “What the hell has gotten into Justice Antonin Scalia? Between his extracurricular pronouncements on the arguments in this case (and I urge you to listen to the whole speech yourself) and his extracurricular hand signals last weekend, nobody is quite sure what has come over the man. He is ever more the Bill O’Reilly of the High Court.”

As for the case itself, the issue is (1) the legality of military tribunals set up by the executive branch that it claims are justified by “the war on terror,” and (2) whether the Court is even allowed to hear the case at all, because after the Court granted review of the case, Congress passed a law removing the issue from the Court’s jurisdiction. But (and I don’t know if I totally have this right) because the issue involved habeas corpus, the right of an arrestee to challenge his/her detention, it’s not clear whether Congress was allowed to strip the Court’s jurisdiction in the way it did.

I’m kind of confused here. I guess I would be less confused if I read the briefs. But who has time?

Thoughts on Alito

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Get used to saying “Scalia, Alito” rapidly, as in, “Roberts, Scalia, Alito, Thomas,” who will be voting closely together in lots of cases.

Fortunately, there are still five pretty solid votes on the Court for the area I care most about, gay rights – Stevens, Kennedy (who wrote Lawrence and Romer), Souter, Ginsburg, and Breyer. Now that O’Connor’s presumably gone, I think Kennedy’s going to become the new swing vote. Also interesting and still semi-applicable: this SCOTUSblog article from June about a possible “gang of three” – just replace “Rehnquist” with “Alito” in the following excerpt:

On a Court somewhat more conservative without O’Connor, Kennedy’s influence seems sure to grow. He has a chance to become the new balance wheel, a role that was filled so routinely by O’Connor. (Even if there were to form a solid Rehnquist-Scalia-Thomas-Roberts phalanx, they would still need Kennedy to prevail, and he would not be with such a quartet automatically.) Kennedy also has more influence than is sometimes credited to him. He has a store of common sense that saves him from ideological rigidity, and that steers him away from agenda-driven voting. He has an even deeper sense of what history asks of the few who become members of the Court. Those are summonses to the use of sound judgment.

As I’ve said recently, despite my relatively liberal social views, my judicial views have been in flux lately. Alito seems not be an ideologue or an asshole like Scalia, which is good. I prefer him to someone like Janice Rogers Brown or Priscilla Owen. (And hey – go, New Jersey, with two out of nine seats!)

The Harriet Miers nomination was bad for the Court as an institution. The Alito nomination is good for the Court, regardless of how good or bad it turns out to be for the country.

Blawgs/Seminole

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My finger seems to be normal again. That’s good.

Unfortunately, my throat has been sorer today than yesterday. I decided to take the day off from work. After Matt and I had lunch at Lemongrass, I went to the hardware store and bought new air-conditioner filters. Hopefully that’ll make things better.

I also went through my several boxes of memorabilia today (from childhood, adolescence, high school and college) and separated out about half the stuff to toss in the trash. God, I’ve been such a packrat. I don’t know why I was keeping my high school U.S. History notes or my DC Heroes role-playing game.

In other news, I’ve been thinking about starting a law blog (or “blawg”). Lately I’ve been writing lots of law-type stuff, and I’m not sure how interesting it is to my readers. On the other hand, I don’t know if I’d want to write about legal stuff enough to justify a daily law blog.

But this afternoon (and this will sound random) I finished reading Justice Souter’s dissent in Seminole Tribe v. Florida, a major Eleventh Amendment case from 1996. I studied the case in law school and saw a reference to it again recently, so I decided to print out Souter’s dissent and reread it. It’s a brilliant piece of scholarship, and it’s nearly three times as long as Rehnquist’s misguided majority opinion. Over the past 100+ years, the Supreme Court has fucked up the Eleventh Amendment beyond belief.

Anyway, I like having just one blog. Even if it doesn’t have a consistent focus, and some readers might be thrown off by some of the topics, this blog’s a reflection of me and of what’s going through my brain at any given time. And again, I don’t think I’m obsessive enough to keep up a daily blawg.

So I might as well just keep the one.

Gang of 3?

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Here’s a great analysis of how Roberts could become part of a new “Gang of 3” on the Court:

Thus, the possibility is a Court in the new Term starting in October that has Scalia and Thomas, joined somewhat loosely by Rehnquist, on the most conservative wing, Justices Souter, Ruth Bader Ginsburg and John Paul Stevens on the most liberal wing, and Roberts somewhat loosely aligned in the center with Kennedy and Breyer.

It’s all tea leaves at this point, but this is interesting nonetheless.

Kelo v. New London

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I didn’t think this day would come, but today I find myself agreeing with Justices Thomas, Scalia, and Rehnquist (and O’Connor) and think that the more liberal-minded justices (Stevens, Ginsburg, Souter and Breyer, and sort of Kennedy) issued a really asinine decision this morning.

The Court ruled in Kelo v. New London, 5-4, that governmental entities can take private homes for private economic development. The “takings clause” of the Fifth Amendment states: “nor shall private property be taken for public use, without just compensation.” A governmental entity has always been allowed to take someone’s private property and provide compensation for doing so, but only if it’s for a “public use” – a highway, a railroad, etc. (There are more examples, but I can’t think of any – I’m far from an expert on the takings clause.) This morning, in an opinion by Justice Stevens (who’s usually one of my favorites), the Court broadly interpreted “public use” and stated that private economic development can be considered a public use if a government entity thinks it is.

What’s weird is that this decision can be interpreted, in one way, as pro-corporation. Meanwhile, Thomas, dissenting, writes, “This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a ‘public use.'”

FYI, Kennedy agreed with the majority, but only based on the specific circumstances of this case. It’s possible that if the facts were a bit different, the decision might have gone the other way.

I don’t know what on earth the majority was thinking with this one.

Interstate Wine

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The U.S. Supreme Court ruled this morning that a state cannot prohibt wineries located out of state from shipping wine directly to customers in that state. The decision “is expected to increase the sales of wines over the Internet by small, boutique wineries.”

And I love it when things like this happen:

The majority is Kennedy (author), Scalia, Souter, Ginsburg, and Breyer. The dissent is Rehnquist, Stevens, O’Connor, and Thomas.

Scalia versus Thomas! Stevens and Thomas voting together! Dogs and cats living together!

And how often do you see the Supreme Court having to interpret the amendment that repealed Prohibition?

I’ll really have to read the decision.

Justice Stevens

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Imagining America if George Bush Chose the Supreme Court

I’d guess that the justices most likely to retire in the next four years would be Chief Justice Rehnquist, Justice O’Connor, and perhaps Justice Stevens.

Here are the general leanings of the current court members:

conservative — Rehnquist, Scalia, Thomas

swing voters — O’Connor, Kennedy

liberal — Stevens, Souter, Ginsburg, Breyer

Clearly, the biggest blow to social liberals would be the loss of Justice Stevens. A Rehnquist retirement wouldn’t change the court that much; an O’Connor retirement would. But the loss of Justice Stevens would be the biggest deal. You don’t hear much about him. He’s currently the oldest justice, at age 84 (he was appointed by Ford in 1975). However, I’ve read that he’s as mentally sharp as ever, and as one of the most liberal of the liberals, I’m sure he wouldn’t want Bush to name his replacement. He’d die on the bench first. (Which I sure hope doesn’t happen.)

If Bush wins, I fervently hope that the Democrats retake the Senate in 2006, if they don’t do so this year.