Justice Souter "sort of got the joke about being a Supreme Court Justice."

Says Jeffrey Toobin.

He didn't have an answering machine on his phone. He was late for William Rehnquist's funeral because they couldn't leave a message and find out where he was. He doesn't like electric lights to read. He moves his chair around his office over the course of the day for the sunlight. But the great thing about Justice Souter is that he sort of got the joke about being a Supreme Court Justice and he understood that he was important but it wasn't all about him.

Which might explain his graceful retirement. I sometimes wonder about those Justices who hang on for decades and into extreme old age. Why don't they think there should be more rotation of new individuals into those chambers?

Toobin's new book is "The Oath: The Obama White House and the Supreme Court." It's full of interesting material.  I'm enjoying it.

Courts can decide whether the State Department can decline to follow Congress's statute allowing Americans born in Jerusalem to have their passports say "Israel."

The question is justiciable — it's not within the "political question doctrine" — says the Supreme Court today, in an opinion, Zivotofsky v. Clinton, written by Chief Justice Roberts. Roberts states the doctrine in the one-line form that Chief Justice Rehnquist used in Nixon v. United States (1993): Is there "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it." (The language comes from the 1962 case Baker v. Carr, but Baker v. Carr phrases the doctrine in terms of 6 factors. The Nixon version refers only to the first 2.)

The lower courts ruled that this case involves a political question because deciding Zivotofsky’s claim would force the Judicial Branch to interfere with the President’s exercise of constitutional power committed to him alone. The District Court understood Zivotofsky to ask the courts to “decide the political status of Jerusalem.” 511 F. Supp. 2d, at 103. This misunderstands the issue presented. Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He instead seeks to determine whether he may vindicate his statutory right, under §214(d), to choose to have Israel recorded on his passport as his place of birth....

The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what United States policy toward Jerusalem should be. Instead, Zivotofsky requests that the courts enforce a specific statutory right. To resolve his claim, the Judiciary must decide if Zivotofsky’s interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar judicial exercise. 

Moreover, because the parties do not dispute the interpretation of §214(d), the only real question for the courts is whether the statute is constitutional. At least since Marbury v. Madison, 1 Cranch 137 (1803), we have recognized that when an Act of Congress is alleged to conflict with the Constitution, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Id., at 177. That duty will sometimes involve the “[r]esolution of litigation challenging the constitutional authority of one of the three branches,” but courts cannot avoid their responsibility merely “because the issues have political implications.” INS v. Chadha, 462 U. S. 919, 943 (1983)....

Thus, there is no "textually demonstrable constitutional commitment of the issue to a coordinate political department." Are there "judicially discoverable and manageable standards"? It might seem so if you think the question is the political status of Jerusalem, the Chief writes, but the issue is whether the statute is constitutional: Can Congress interfere with the Executive and create the right that Zivotofsky now asserts? The answer may be no, but that's the answer on the substantive constitutional merits, not a determination that the courts may not reach the substantive merits. Reciting all the arguments for and against congressional power, Roberts reject the notion that they show why judges cannot answer the question:

Resolution of Zivotofksy’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do.

So the "political question" argument fails and the case returns to the D.C. Circuit court to get on to the substantive merits.

"You're a Supreme Court Justice. I'm not. That gives you the right to judge things. That's very convenient."

Stephen Colbert interviews Justice Stevens:

"I am told that Bill [Rehnquist] sometimes used rather strong language..."

"... to voice his disapproval of unfavorable rulings by the referee in his son’s games. With regard to his colleagues, he used somewhat milder language, though it was still emphatic. He often described the harsh consequences of his strict enforcement of a rule that seemed inequitable to some of us as 'tough tacos.' Bill had a good sense of humor, but unlike some of his colleagues, he seldom displayed it at oral arguments."

Writes retired Supreme Court Justice John Paul Stevens in his new book "Five Chiefs: A Supreme Court Memoir," which I've been reading.

Bush on Harriet Miers, John Roberts, and Samuel Alito.

Jan Crawford finds the stuff about Supreme Court nominations in Bush's book, "Decision Points":

"While I know Harriet would have made a fine justice, I didn't think enough about how the selection would be perceived by others," Mr. Bush writes. "I put my friend in an impossible situation. If I had to do it over again, I would not have thrown Harriet to the wolves of Washington."...

--After he tapped Roberts for chief justice when William Rehnquist died, he only considered women candidates to replace O'Connor. "I didn't like the idea of the Supreme Court having only one woman."

But Roberts was originally picked for the O'Connor position.  The idea of appointing a woman, then, didn't matter all that much.

--There were "frustrating roadblocks" for most of the women candidates. When several senators said they were impressed by Miers, he concluded "she would make an outstanding justice." Miers was "shocked" when he asked if she was interested.

--No one in the White House ever suggested conservatives would revolt over her nomination. Bush suggests the opposition was elitist because Miers didn't go to an Ivy League school and "is not glib."

In addition to Miers, Bush says he considered Patricia Owen, but he thought Miers would be easier to confirm. After all the trouble with Miers, he switched to Alito, who, he writes, was "ill at ease" with Bush at first. Bush relaxed him by talking about baseball.

Bush says wanted to avoid appointing another Souter — Souter, who disappointed Bush's father, by "evolv[ing] into a different kind of judge."

--Roberts was not the unanimous choice. Vice President Cheney and Attorney General Alberto Gonzales backed Judge Mike Luttig. Miers supported Alito. Chief of Staff Andy Card and adviser Karl Rove favored Roberts. (Which means J. Harvie Wilkinson and Edith Brown Clement, the other two contenders early on, didn't have prominent backers.)

--Brett Kavanaugh, now a federal appeals court judge, told Bush Luttig, Alito and Roberts would all be solid justices. He suggested Bush ask a "tiebreaker question" of which man would be the most effective leader. To Bush, that was Roberts.

It seems that Roberts has a special appeal to Bush, who liked his "gentle soul" and "quick smile."

Margie Phelps, a daughter of Fred Phelps, will be arguing before the Supreme Court today.

The issue is freedom of speech, and the speech in question is repulsive. (Phelps's church protests near military funerals, with signs like "Thank God for Dead Soldiers," to express the view that God is punishing the U.S. for its immorality.) The father of one soldier sued for intentional infliction of emotional distress — which is a tort — and won $5 million against the church.

Much more detail at SCOTUSblog.  This is telling:

[T]his case has about it the promise of rewriting a considerable body of First Amendment law.

For a Court that so recently had refused to create a new exception to the First Amendment’s protection (so as to permit the outlawing of animal cruelty videos and films), the task of crafting a “funeral rights” exception to free speech doctrine may be a forbidding one. But for a Court hearing this case in the midst of war weariness and an expanding fear of decaying morality, the prospect of drawing a First Amendment shield around the Westboro Baptists’ message may also be a daunting one.

Perhaps this is a case in which the quality of legal advocacy, during oral argument, could make a difference. If one side or the other’s lawyer were to falter, for lack of seasoning at that demanding podium, it might ease the Justices’ decisional choice — but, then again, maybe not.

The quality of legal advocacy... is that meant as a laugh line? How did it happen that the work of upholding First Amendment rights is in the hands of Margie Phelps? I don't know the story, but it's not that the usual free speech defenders have failed to support these profoundly unpopular and ugly speakers. There are amicus briefs from the ACLU and from law professors in support of the Phelps group.

It will be interesting to see how Margie Phelps carries out her lawyerly task. Back in 2004, Michael Newdow argued his own case in the "Under God"/Pledge of Allegiance case and his nontraditional, passionate style seemed to work rather well.

Dr. Newdow, a nonpracticing lawyer who makes his living as an emergency room doctor, may not win his case.... But no one who managed to get a seat in the courtroom is likely ever to forget his spell-binding performance.

That includes the justices, whom Dr. Newdow engaged in repartee that, while never disrespectful, bore a closer resemblance to dinner-table one-upmanship than to formal courtroom discourse. For example, when Dr. Newdow described ''under God'' as a divisive addition to the pledge, Chief Justice William H. Rehnquist asked him what the vote in Congress had been 50 years ago when the phrase was inserted.
The vote was unanimous, Dr. Newdow said.

''Well, that doesn't sound divisive,'' the chief justice observed.

Dr. Newdow shot back, ''That's only because no atheist can get elected to public office.''

The courtroom audience broke into applause, an exceedingly rare event that left the chief justice temporarily nonplussed. He appeared to collect himself for a moment, and then sternly warned the audience that the courtroom would be cleared ''if there's any more clapping.''

I doubt if there will be any clapping for Margie Phelps. Or any dinner-table-style repartee. She's coming in from the other end of the God spectrum, and we shall see how that sounds.

Linda Greenhouse peers into the psyches of the Supreme Court Justices to predict what they'll say about the constitutionality of the health care bill.

She predicts the decisional path in the brains of the judges will be determined by deep instincts about the states and the federal government:

The architects of the Rehnquist federalism revolution....

Go to the link for some detail on what Greenhouse likes to call the "federalism revolution."

.... were Chief Justice William H. Rehnquist and his fellow Arizonan, Justice Sandra Day O’Connor (Chief Justice Rehnquist was actually from Milwaukee, but he decided during his Army service in North Africa that he liked the air of the desert rather than the cold and damp of the Great Lakes.) They were Westerners to whom the notion of states’ rights came naturally.

But Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.

Chief Justice Roberts appears particularly in tune with the exercise of national power. 

Here, Greenhouse notes 2 dissenting opinions —Massachusetts v. Environmental Protection Agency, where Roberts would have saved the EPA from the state's lawsuit to force it to deal with global warming, and Gonzales v. Oregon, where Roberts would have let the United States attorney general keep doctors from prescribing the suicide drugs that were authorized by Oregon law.

Finally, Greenhouse aptly observes that even some of the Justices who favor the states in federalism decisions lose their nerve when they are confronted with "issues that people really care about." Chief Justice Rehnquist balked when he got to the Family and Medical Leave Act (in Nevada Department of Human Resources v. Hibbs) — and that case was only about whether an employee of a state could get back pay when the act was violated, not the more momentous question of whether the act was constitutional or could bind the state.

So now we have a monumental new law. Can we really imagine the Supreme Court thwarting it?

John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.

But the Supreme Court got cold feet about standing up to the will of the democratic branches of government right after Franklin Roosevelt won a big landslide election in 1936. The health care reform law followed an election that wasn't about health care reform at all. The main thing people were thinking about when they voted for Obama in 2008 was the dramatic economic crisis. There were also the 2 wars and amorphous hopes for a post-racial America.

The 2008 election cannot be read as a mandate for health care reform, especially not for the aspect of it that is challenged in the current lawsuits: the  individual mandate to buy health insurance. That could not possibly have been foremost in the voters' minds. First, during the campaign, Obama spoke emphatically against it. And second, even after a year of talk about the reform, people don't really understand what the individual mandate is going to be.

There isn't a big majority of Americans who are counting on being compelled to buy insurance. There isn't even a majority — even a thin majority — of Americans who favor the health care reform as a whole, and this is even before they need to confront something that is probably going to shock and distress a lot of people who haven't studied the text of the law and have simply trusted that the government is about to give them the good things they need.

Greenhouse tries to patch this hole in her argument:

Midweek polls showed the public already rallying around the new health care law. That trend is likely to accelerate as people realize that the law’s benefits belie the scare stories — just around that time that the state challenges are likely to reach the Supreme Court. It won’t require a summa cum laude in history from Harvard to be able to tell history’s wrong side from its right.

So Chief Justice Roberts and the others are going to want to surf the wave of history... that wave that we're still watching for.

"You'd think the case for 'choice' at the end of life might be stronger..."

"... since the life at stake is likely to be able to participate in making that choice."

Writes Mickey Kaus, fretting about the end-of-life decisions the government may very well take over for us under ObamaCare.

Now, as you may know, the Supreme Court denied the existence of a federal constitutional right to physician-assisted suicide, but the opinion (by Chief Justice Rehnquist) shows deep concern for the interests of the individual who might suffer from untreated depression or who might be vulnerable to "abuse, neglect, and mistakes." The Court worried that family and medical personnel might subtly pressure someone to choose death to save money, and that, even uncoerced, some people might think it is the decent, honorable choice to spare their families the cost of medical care.

But all of that supports Kaus's point. It's one thing to deny the choice to die, quite another to deny the choice to live. The individual may not have a right to get killed, because the state's interest in protecting people from coercion and abuse is a good one. But Kaus is concerned about a government that wants you dead — perhaps not by actively offing you, but by maintaining full control over the medical treatments you need in order to fend off death.

Like Rehnquist, Chief Justice John Roberts is not a...

... snow pussy.

John Roberts says: Under Rehnquist "the method of analysis and argument shifted to the more solid grounds of legal argument."

"Whether that 'seismic shift,' as Roberts described it, was a good thing is up for debate, though there's little question that Rehnquist was behind the move."

I'd like to see the whole text of that speech. Why did Roberts say that it might not be a good thing? When I first saw the quote that I put in this post title, I thought: Well, that's typical of how each side characterizes what it is doing. We're the judges who are doing real legal analysis, and those others are result-oriented and pursuing their own personal preferences and acting like a legislature. But apparently, it wasn't one of these we're-good-you're-bad remarks. It sounds as though he probably said that everyone on the Court has switched to writing opinions with carefully elaborated legal arguments, and the difference is not between the liberals and conservatives (and centrists) on the Court, but between the Court now and the Court before the Rehnquist. I was just teaching Griswold v. Connecticut the other day and thinking: They would never write this opinion this way if it came up today. It looks so carelessly slapped together by today's standards, yet you can tell by the tone that they thought they were doing a fine job.

But what was good about the old style of opinion-writing? What are we missing? Without more of the text of the speech, I can only guess at what Roberts may have said, but I'm thinking that what we miss are the opportunities for insight into what made the Justices think about things the way they did. There's an immediacy to those old cases. The reader doesn't feel that a squad of bookish law clerks has replaced all human feeling and intuition with properly scholarly verbosity. All that verbiage distances us and makes the layperson think: It certainly looks like they know what they're doing. In fact, it may be utter nonsense, but good luck figuring that out.

It's tiresome, workmanlike, and uninspiring. In such an environment, who will care much about the role of the Constitution limiting whatever it is government decides to do to us?

If Rehnquist represents something Roberts is ambivalent about, does Roberts aspire to his own seismic shift?

The new Solicitor General -- Elena Kagan -- is female, so the question is: What will she wear?

The Solicitor General — up to now, invariably a male — has always worn a "morning coat" — that is to say, tails. So it's a puzzle. Lawprof Patricia J. Williams writes:

The persistence of this sartorial custom beyond its natural lifespan—and in the American justice system of all places—is not merely a quirk of history but testament to the deep and tenaciously clubbish culture that still afflicts the highest levels and most intransigently closed circles of power.

Tradition, it's an affliction.

Williams tells the story — "perhaps apocryphal" — of a female deputy solicitor who wore a "'dove-brown' or 'doe-beige' business suit" when she argued a case in the Supreme Court:

According to a friend who, to this day, fears being identified, Chief Justice Rehnquist "went berserk." He chastised her for inappropriate attire, and followed it up with a scathing letter to the Solicitor General himself, requesting that this not occur again. Brown textiles! The scandal!...

In response, the Solicitor General’s office thenceforth recommended that women wear what is popularly known as a "feminized" version of morning attire, and/or a plain black suit.

So, then, the answer is easy: Kagan will wear a nice black skirted suit. Yes, it might have tails, but in my view that would seem oddly costume-y in the absence of an established tradition. Dressing like a man is not a tradition. It's sort of kinky.



IN THE COMMENTS: Sean writes:

There hasn't been a female solicitor general before, but women from the solicitor general's office have argued before the Supreme Court, and they wore business suits.

In fact, my [Appellate Advocacy]professor told us that there was some discussion, when there first started being women in the solicitor general's office, of what was the female analogue of a morning coat. Several answers suggest themselves, based on the situations where morning coats are encountered: bridesmaids' dresses (men still wear morning coats if they are in a wedding party); women's church clothes of the 1950s, featuring knee length dresses and white gloves (men used to wear morning coats at upper class churches into the 1950s); or upper class female street clothes of the Edwardian era, perhaps featuring a bustle (this was the last time that men wore morning coats on a regular basis). None of these female attires seems quite suitable for a lawyer.

Theo Boehm says: "Forget Dietrich. If that era is any guide to style, the new Solicitor General should try the Louise Brooks look":

McCain's judges.

John McCain gave a speech on judicial appointments yesterday, and it made me want to go back to a conference call he did with bloggers — including me — on April 27, 2007:

Ah. I got my question in just now, which was to invite him to talk about what sort of person he would put on the Supreme Court, and specifically if he would strengthen a conservative majority or if he would work with liberals and others who care about preserving the balance that we've had on the Court for so long. He said he wanted, above all, a person with "a proven record of strict construction." This is "probably a conservative position, but," he said, "I'm proud of that position." He wants judges who won't "legislate." Then, he added that "this is new" and something we may not have heard: he'd like someone who had not just judicial experience but also "some other life experiences," such as time in the military, in a corporation, or in a small business. He would like to see "not just vast judicial knowledge, but also knowledge of the world."

Now, let's see what he said yesterday. Excerpts:

For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically.

This is the standard conservative criticism of federal judges.

My two prospective opponents and I have very different ideas about the nature and proper exercise of judicial power. We would nominate judges of a different kind, a different caliber, a different understanding of judicial authority and its limits....

Of course, this is right.

One Justice of the Court remarked in a recent opinion that he was basing a conclusion on "my own experience," even though that conclusion found no support in the Constitution, or in applicable statutes, or in the record of the case in front of him. Such candor from the bench is rare and even commendable.

He's referring to Justice Stevens's opinion in the lethal injection case, Baze v. Rees. ("I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.'") Back to McCain:

Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the State of Missouri. As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and "evolving standards of decency." These meditations were in the tradition of "penumbras," "emanations," and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning. The effect of that ruling in the Missouri case was familiar too. When it finally came to the point, the result was to reduce the penalty, disregard our Constitution, and brush off the standards of the people themselves and their elected representatives.

This refers to Justice Kennedy's opinion in Roper v. Simmons. Tremendous hostility was aimed at Kennedy over this opinion, you may remember.

I'm skipping over his discussion of Kelo and the flag pledge case to shorten this post, but, like the whole speech, it's very well composed. McCain has fine legal advisors (and he will have them when he's picking his judges).

He goes on to a long criticism of the Senate's approach to judicial confirmations. He doesn't say how he can appoint fully conservative judges when he needs the Senate's confirmation. Won't some moderation be required — especially if one of the liberal Justices of the Supreme Court steps down? The answer is obviously yes.

Senator Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator's measure? Well, a justice of the court, as Senator Obama explained it -- and I quote -- should share "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

These vague words attempt to justify judicial activism -- come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama's standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama's standard, even Judge Roberts didn't measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it -- and they see it only in each other.

That's all very well put. It makes it clear that picking — and confirming — judges is not about quality and qualifications. There is an ideological element, and it determined Obama's Senate vote. Now, as President, Obama will be nominating the judges — moderated by what the Senate will accept — but his vote on Roberts makes it plain that he won't pick conservative judges.

McCain notes that he voted for Bill Clinton's nominees to the Supreme Court, Stephen Breyer and Ruth Bader Ginsburg. (The text of his speech on his website misspells her name "Ginsberg," making me wonder whether his legal advisors are as good as I'd thought.) He voted based on quality and out of deference to the President's constitutional role, he says. What? Do you worry that he voted out of a secret love for liberal judges? McCain assures us that he will nominate "people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist -- jurists of the highest caliber who know their own minds, and know the law, and know the difference."

To compare what McCain said in this carefully prepared text to what he said to me in the conference call a year ago: He doesn't fall back on the stock phrase "strict construction" — which is a good thing. Like the judges he says he admires, he now talks about being faithful to what the law requires. His judges aren't "strict" (or narrow) but correct, and those other judges are lawlessly ranging beyond the text. That's the better way to present conservative judicial ideology. He certainly didn't say, as he did to me, that he wants conservative judges. He wants judges who adhere to the law and don't legislate. That's the better way to put it, even if it does worry some people who want assurances that he will give them another Scalia or Thomas. And why shouldn't they worry? He didn't name Scalia and Thomas as his model judges. He named Roberts and Alito (and his "friend" Rehnquist). Does that mean he's a notch removed from the most conservative position? (Does it irk Justice Scalia not to be named here, especially when most of this speech reads like a Scalia speech?)

McCain also didn't talk about appointing persons who have experience in the business world. In fact, he avoided talking about the role of the courts with respect to business and commerce.

He also avoided the subject I tried to get him to talk about a year ago: the balance on the Court. We have lived for a long time with a Court balanced with conservatives, liberals, and swing voters. Do we really want what would happen if we lost a liberal Justice (or Justice Kennedy) and the conservatives got a reliable 5th vote? Do we understand what would happen then? But do we think McCain would give that to us – or that the Senate would let him? Frankly, I don't think so.

Arkansas Lawprof Richard J. Peltz is suing two students and the Black Law Student Association.

Inside Higher Ed reports. (Via Instapundit.)

Peltz charges them with defamation, saying that his comments about affirmative action were used unfairly to accuse him of racism in a way that tarnished his reputation....

The dispute over Peltz concerns his opposition to affirmative action — and how he expressed it. Complicating matters is that no one who was present when the statements were actually made is discussing them....

In a memo sent to Charles Goldner, dean of the law school, the students accuse Peltz of engaging in a “rant” about affirmative action, of saying that affirmative action helps “unqualified black people,” of displaying a satirical article from The Onion about the death of Rosa Parks, of allowing a student to give “incorrect facts” about a key affirmative action case, of passing out a form on which he asked for students’ name and race and linking this form to grades, and of denigrating black students in a debate about affirmative action, among other charges.

The student memo said that the organization had “no problem with the difference of opinion about affirmative action,” but that Peltz’s actions were “hateful and inciting speech” and were used “to attack and demean the black students in class.”

The black student group demanded that Peltz be “openly reprimanded,” that he be barred from teaching constitutional law “or any other required course where black students would be forced to have him as a professor,” that the university mention in his personnel file that he is unable “to deal fairly with black students,” and that he be required to attend diversity training.

Suing students! It seems unthinkable. But this is the direction we head when free speech and academic freedom lose their grip on us. Do we feel like blaming the students for trying to suppress the teacher first, or should we blame the teachers who taught them that they are entitled not to hear what to them feels "hateful and inciting"? Or is it just obvious that teachers should never sue our students for even the most horrible things they about us? What a sad, sad story!

I'd like to hear from other law professors and law students about whether classroom critique of affirmative action gets called racism at your school. I have encountered people in law schools who will cry racism when all you have done is seriously present the legal reasoning in the affirmative action opinions of Clarence Thomas, Antonin Scalia, and William Rehnquist.

The Peltz story hits close to home for me because of something that you can read about in my old posts with the tag "Kaplan story."

"The rage he harbors raises questions about whether he can sit as an impartial judge in many of the cases the Supreme Court hears."

The NYT would like to say that Clarence Thomas's anger disqualifies from hearing some cases. Isn't it insanely obvious that if a liberal black judge harbored anger for the way he was treated over the years, the NYT would admire him for his passion and for the crucial perspective he brings to judging — perspective that white judges can never hope to reach through mere knowledge and empathy?

But somehow NYT editorial writers can understand that a conservative black judge's emotions are distorted, overblown, and disqualifying.

He's "dredg[ing] up" something that happened 16 years ago. Here's a new rule: The NYT should disrespect anyone who remains angry about something that happened more than a decade and a half ago.

Why couldn't Clarence Thomas write a nice, dignified book, the way these white justices did?

When Supreme Court justices write books, which is not often, they tend to write about subjects and in ways that are consistent with the dignity of the court. When he was chief justice, William Rehnquist wrote about the 1876 presidential election; Justice Stephen Breyer’s “Active Liberty” set forth a specific view of the Constitution.

Imagine that a liberal black judge had written a passionate, personal story of his life. Make that judge a man who grew up in poverty in the south in the era of segregation. Imagine a conservative newspaper editorial criticizing him for failing to write something more dignified, something more like like a history book written a white judge who was raised in middle-class, midwestern suburbia or a theoretical book written by a white man who spent his childhood in middle-class San Francisco. Don't you think the New York Times would sneer at that editorial and call it racist?

Scalia mocks minimalism.

Linda Greenhouse shows where Justice Scalia has recently expressed his antagonism toward the more moderate style of the Chief Justice.

In the issue ads case (Wisconsin Right to Life): "This faux judicial restraint is judicial obfuscation."

In Freedom From Religion, the case that restricted standing to use the Establishment Clause to challenge Executive Branch decisions: "Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions."

But the liberal lawprofs consulted by Greenhouse don't seem too impressed by what she wants to portray as a rift among conservatives:

As Prof. Jack M. Balkin of Yale Law School wrote on his blog, Balkinization, “It is the difference between bomb throwing and dismantling.”

... Prof. Erwin Chemerinsky of Duke Law School observed that Chief Justice Roberts, who has taken the conservative position in every ideologically divided case this term, could hardly be described as less conservative than Justice Scalia.

Prof. Mark Tushnet of Harvard Law School, whose recent book, “A Court Divided,” explored the differences among Republican-appointed members of the Rehnquist court, said that “a consolidated conservative majority, not a divided conservative majority,” was now in charge.

I tend to agree with this. Roberts (with Alito) and Scalia (with Thomas) are not at cross purposes. How shocking it would have been if the Court in those two cases gone ahead with the overruling that Scalia recommended. What a gift it would have been to the Democratic presidential candidates, who would have impressive new substance for scaring people about what another Republican President would do to the Court.

Free speech prevails in the issue ads case in an as-applied challenge to McCain-Feingold.

The Supreme Court also decided the Wisconsin Right to Life case:

Completing a day of 5-4 decisions, the Court issued its fifth ruling of the day, concluding that a Wisconsin abortion rights group had a First Amendment right to aid during election season campaign ads that named a candidate running for the Senate. Three of the five Justices in the majority urged the Court to overturn the part of a 2003 ruling that upheld the constitutionality of the federal law restricting such radio and TV ads close to elections. The Chief Justice's main opinion, joined fully by Justice Alito, said the case did not provide an occasion to revisit that ruling. Justice Souter recited at length from the bench for the four dissenters -- who were in the minority on each of the day's rulings.

Here's my earlier post on the case, written after the oral argument:

[T]he Wisconsin Right to Life case... is about the provision the McCain-Feingold campaign finance law that prohibits issue ads right before the election if they mention the name of a candidate. The Court rejected a facial challenge in McConnell in 2003, but this is an as-applied challenge, and, moreover, McConnell was decided 5-4 with O'Connor in the majority. Alito has replaced O'Connor and may be expected to vote with Scalia, Thomas, and Kennedy, who dissented in McConnell. The fourth dissenter was Rehnquist, and Roberts, who replaced Rehnquist may be expected to join Scalia, Thomas, and Kennedy as well.

So, Roberts and Alito vote as expected. And you can expect to see plenty of issue ads -- and litigation about them -- in the future.

ADDED: Here's the opinion. It's rather fragmented. Chief Justice Roberts writes for a majority for only part of his opinion. Only Justice Alito sticks with him until the end (but he still writes a separate opinion). Scalia, Kennedy, and Thomas peel away, and Scalia writes their concurring opinion. The liberals stick together with Justice Souter doing the writing.

Let's start with Justice Scalia. Here's how he starts:

A Moroccan cartoonist once defended his criticism of the Moroccan monarch (lese majesté being a serious crime in Morocco) as follows: “ ‘I’m not a revolutionary, I’m just defending freedom of speech… . I never said we had to change the king—no, no, no, no! But I said that some things the king is doing, I do not like. Is that a crime?’ ” Well, in the United States (making due allowance for the fact that we have elected representatives instead of a king) it is a crime, at least if the speaker is a union or a corporation (including not-for-profit public-interest corporations) and if the representative is identified by name within a certain period before a primary or congressional election in which he is running. That is the import of §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), the constitutionality of which we upheld three Terms ago in McConnell v. Federal Election Comm’n, 540 U. S. 93 (2003). As an element essential to that determination of constitutionality, our opinion left open the possibility that a corporation or union could establish that, in the particular circumstances of its case, the ban was unconstitutional because it was (to pursue the analogy) only the king’s policies and not his tenure in office that was criticized. Today’s cases present the question of what sort of showing is necessary for that purpose. For the reasons I set forth below, it is my view that no test for such a showing can both (1) comport with the requirement of clarity that unchilled freedom of political speech demands, and (2) be compatible with the facial validity of §203 (as pronounced in McConnell). I would therefore reconsider the decision that sets us the unsavory task of separating issue-speech from election-speech with no clear criterion.

Unsurprisingly, he's for overruling.

Chief Justice Roberts takes the narrow approach:

[T]he speech at issue in this as-applied challenge is not the “functional equivalent” of express campaign speech. We... conclude that the interests held to justify restricting corporate campaign speech or its functional equivalent do not justify restricting issue advocacy, and accordingly we hold that BCRA §203 is unconstitutional as applied to the advertisements at issue in these cases.

Alito's very short separate opinion states that it is unnecessary to reconsider whether §203 is unconstitutional on its face but:

If it turns out that the implementation of the as-applied standard set out in the principal opinion impermissibly chills political speech... we will presumably be asked in a future case to reconsider the holding in McConnell v. Federal Election Comm’n...

Until then, enjoy the chill. And the litigation.

Four new Supreme Court opinions.

Howard Bashman has the links. I'll update soon with more detail.

UPDATE #1: Erickson v. Pardus is a per curiam opinion that rejects the too-strict pleading requirements the Sixth Tenth Circuit imposed on a pro se prisoner who alleged that depriving him of his hepatitis medication constituted cruel and unusual punishment. "Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief.' Specific facts are not necessary; the statement need only '"give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."'"

UPDATE #2: Sole v. Wyner is a unanimous opinion, written by Justice Ginsburg, about what it means to be a "prevailing party" -- entitled to attorneys' fees -- in a §1983 civil rights case. The Court decided that winning a preliminary injunction is not enough if you go on to lose the case on the merits. The plaintiff, by the way, was fighting for the right to protest the war with a giant peace sign composed of naked people.

UPDATE #3: Uttecht v. Brown is a 5-4 opinion written by Justice Kennedy, with a dissenting opinion written by Justice Stevens and joined by Souter, Ginsburg, and Breyer and a dissenting opinion written by Justice Breyer and joined by Souter. This case concerns the degree of deference that is owed to a trial judge's decisions about when a juror should be excused based on an inability to follow instructions about the application of the death penalty. An excerpt from Stevens's opinion:

Today, the Court has fundamentally redefined — or maybe just misunderstood — the meaning of “substantially impaired,” and, in doing so, has gotten it horribly backwards. It appears to be under the impression that trial courts should be encouraging the inclusion of jurors who will impose the death penalty rather than only ensuring the exclusion of those who say that, in all circumstances, they cannot....

Judge Kozinski’s opinion for the Court of Appeals in this case is solidly grounded on the entire line of our cases recognizing the basic distinction dramatically illustrated by Justice Powell’s opinion in Darden and by Justice Rehnquist’s statement in Lockhart. He surely was entitled to assume that the law had not changed so dramatically in the years following his service as a law clerk to Chief Justice Burger that a majority of the present Court would not even mention that basic distinction, and would uphold the disqualification of a juror whose only failing was to harbor some slight reservation in imposing the most severe of sanctions.

I don't remember ever seeing the fact that a judge was a Supreme Court clerk used to bolster his opinion. Apparently, you're "entitled to assume" some things. I think that whole paragraph, the last paragraph of the Stevens dissent, is just screaming look at all the conservatives who agree with me. I've got Burger and Rehnquist and Powell... and Kozinski, who practically counts as a Supreme Court justice.

UPDATE #4: Safeco Insurance v. Burr is a case about the Fair Credit Reporting Act that I'm going to leave for someone else to untangle. My reticence and my use of the word "untangle" is based on this:

Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy and Breyer, JJ., joined, in which Scalia, J., joined as to all but footnotes 11 and 15, in which Thomas and Alito, JJ., joined as to all but Part III–A, and in which Stevens and Ginsburg, JJ., joined as to Parts I, II, III–A, and IV–B. Stevens, J., filed an opinion concurring in part and concurring in the judgment, in which Ginsburg, J., joined. Thomas, J., filed an opinion concurring in part, in which Alito, J., joined.

On the bright side: No one dissented.

It's not the Kennedy Court it's the Roberts v. Stevens Court.

Jan Crawford Greenburg says people are wrong to focus on Justice Kennedy, despite his ability to tip the Court to one side or the other in tough cases. Greenburg portrays Stevens and Roberts in an epic struggle, and she says Roberts will win, and he will win because of Kennedy isn't the type to hold to the middle. He will be absorbed into the conservative group.

Why?

...Kennedy is not O’Connor.... He is perfectly willing to vote with conservatives nine times in a row—then vote with them a tenth—if that’s how he sees the case. He wants to be consistent. And when he decides on his position, he’s pretty comfortable there. Unlike O’Connor, he isn’t cautious. He doesn’t try to hold back the majority with a split-the-difference approach.

Kennedy also happens to be more comfortable with the conservative position than O’Connor ever was. In the battle for Kennedy, liberals are going to lose a lot more than they win...

On issues of race, Kennedy is never a swing vote. That’s as area—along with free speech--in which he’s been entirely consistent over the years. He opposes racial considerations and racial preferences much more so than O’Connor ever did....

Roberts realizes he’s presiding over a Court with just four judicial conservatives. But he surely must want to preside over a Court that functions as a Court—not one with a justice whose vote always is up for grabs and whose direction is set by that vote. That’s the position William Rehnquist found himself in with O’Connor. Lawyers wrote briefs and argued cases targeted at getting her vote. Roberts would say that’s bad for the law and bad for the Court—and I’d bet the other justices, including Kennedy, would agree.

Roberts is trying to shift the debate inside the Court. His position is that the Court--instead battling for one justice’s vote and swinging for the fences in the big cases--should take a more restrained and narrow approach.

If he could persuade the Court to write more narrowly, it would minimize Kennedy’s role. That would make the Court’s jurisprudence more coherent and clear, with better direction and guidance for lower courts and litigants.

If the Court ends up writing overly narrow decisions to rope in Kennedy, how is that minimizing his role? Or does Greenburg mean only that we won't notice his role the way we would if he provided a fifth vote with a concurring opinion that left the decision meaning very little, the way O'Connor so often did? And what's to prevent the Stevens side of the Court from using the same strategy and writing their side narrowly to win Kennedy's vote? Moreover how does the case law become "more coherent and clear, with better direction and guidance for lower courts and litigants"? If you resist stating the law in the form of rules of general applicability, how do you know how it applies in the next case? How would the Roberts v. Stevens struggle really play out? I'm picturing Roberts and Stevens competing over how narrowly they can frame the decision for the outcome they want and Kennedy coyly withholding his choice until he finds the precise narrow narrowness that piques his fancy. This picture strikes me as too absurd to believe. If I did believe it, though, it would give me absolutely no confidence that things would become coherent and clear.

Oral argument in the campaign finance case.

Here's Linda Greenhouse's write up on the Supreme Court argument in the Wisconsin Right to Life case, which is about the provision the McCain-Feingold campaign finance law that prohibits issue ads right before the election if they mention the name of a candidate. The Court rejected a facial challenge in McConnell in 2003, but this is an as-applied challenge, and, moreover, McConnell was decided 5-4 with O'Connor in the majority. Alito has replaced O'Connor and may be expected to vote with Scalia, Thomas, and Kennedy, who dissented in McConnell. The fourth dissenter was Rehnquist, and Roberts, who replaced Rehnquist may be expected to join Scalia, Thomas, and Kennedy as well.

For the first half-hour of the argument, Justice Alito said nothing, leaning forward in his seat at the end of the bench with an intense expression. He finally intervened during the argument by Seth P. Waxman, who was defending the law on behalf of a group of its Congressional supporters including Senator John McCain, the Arizona Republican who is the other lead sponsor.

What would happen, Justice Alito asked Mr. Waxman, if a group had been running an advertisement about an issue, “and let’s say a particular candidate’s position on the issue is very well known to people who pay attention to public affairs.” Suppose the blackout period established by the law was approaching — 30 days before a primary or 60 days before a general election — “and an important vote is coming up in Congress on that very issue.” Could the group be prohibited from continuing to broadcast the ad?

That would depend on the context, Mr. Waxman replied.

Justice Alito did not appear satisfied. “What do you make of the fact that there are so many groups that say this is really impractical?” he asked. His reference was to the impressive array of ideological strange bedfellows that filed briefs in support of Wisconsin Right to Life’s challenge. These range from the American Civil Liberties Union to the National Rifle Association to the United States Chamber of Commerce to the AFL-CIO.

“I love it!” Mr. Waxman replied energetically, as if he had been waiting for just such a question. He said that although these many groups opposed the law, they were living with it and contenting themselves with running advertisements that advocated their positions on issues without mentioning candidates. The only two as-applied challenges, he noted, had both been brought by Wisconsin Right to Life’s lawyer, James Bopp Jr., who also has another case pending before the court.

Chief Justice Roberts was unimpressed by this line of argument. “I think it’s an important part of their exercise of First Amendment rights to petition their senators and congressmen and to urge others to, as in these ads, contact your senators, contact your congressmen,” he said, adding, “Just because the A.C.L.U. doesn’t do that doesn’t seem particularly pertinent to me.”

ADDED: And here's Dahlia Lithwick:

Clement spends his rebuttal time tussling with Scalia, who seems to love nothing more these days. But when we file out of the courtroom, it doesn't look like Clement's snagged his five votes for the proposition that an ad that quacks and has webbed feet is probably a duck, aka an attack ad in disguise. And, much to Breyer's dismay, if that means gutting the electioneering provision of McCain-Feingold, so be it. When it comes to curbing corruption versus curbing political speech, it looks like speech is the winner today. Which means that there will be an awful lot more vicious, snarling, not to mention expensive, ducks coming to your TV screens next election season.

Then bring on the ducks. We will roast them right here to a fine crispy finish.

Let's take a look at that 10 Commandments monument.

Strolling around the grounds of the Texas Capitol, I looked for the Ten Commandments monument, the one that was the subject of the Supreme Court case -- Van Orden -- two years ago. Here it is:



Here's how Chief Justice Rehnquist, joined by Justices Scalia, Thomas, and Kennedy, described the setting:

The 22 acres surrounding the Texas State Capitol contain 17 monuments and 21 historical markers commemorating the “people, ideals, and events that compose Texan identity.” Tex. H. Con. Res. 38, 77th Leg. (2001). [FOOTNOTE TEXT, with links to my photos]: The monuments are: Heroes of the Alamo, Hood’s Brigade, Confederate Soldiers, Volunteer Fireman, Terry’s Texas Rangers, Texas Cowboy, Spanish-American War, Texas National Guard, Ten Commandments, Tribute to Texas School Children, Texas Pioneer Woman, The Boy Scouts’ Statue of Liberty Replica, Pearl Harbor Veterans, Korean War Veterans, Soldiers of World War I, Disabled Veterans, and Texas Peace Officers.]...

Texas has treated her Capitol grounds monuments as representing the several strands in the State’s political and legal history. The inclusion of the Ten Commandments monument in this group has a dual significance, partaking of both religion and government.

Justice Breyer cast the deciding vote in Van Orden. Here's his description of the setting:

Here the tablets have been used as part of a display that communicates not simply a religious message, but a secular message as well. The circumstances surrounding the display’s placement on the capitol grounds and its physical setting suggest that the State itself intended the latter, nonreligious aspects of the tablets’ message to predominate....

The physical setting of the monument, moreover, suggests little or nothing of the sacred.... The monument sits in a large park containing 17 monuments and 21 historical markers, all designed to illustrate the “ideals” of those who settled in Texas and of those who have lived there since that time.... The setting does not readily lend itself to meditation or any other religious activity. But it does provide a context of history and moral ideals. It (together with the display’s inscription about its origin) communicates to visitors that the State sought to reflect moral principles, illustrating a relation between ethics and law that the State’s citizens, historically speaking, have endorsed. That is to say, the context suggests that the State intended the display’s moral message–an illustrative message reflecting the historical “ideals” of Texans–to predominate.

So it's just one monument in a group of monuments. What's your mental picture from that description? Like this?



See the other monuments?

Perhaps a longer view will reveal the context that matters so much in Establishment Clause cases: