Tag Archives: souter

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.