As the Justices take the bench for the start of the new Term, Dahlia Lithwick and I take the conservative majority to task for how they have been conducting business.  Click here to see our piece published in Slate:

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The Will of the People has received mention again this week in the New York Times  Paperback Row September 30 2010.   Read the article

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This is going to be a big week in Supreme Court.  Elena Kagan’s confirmation hearings begin on Monday.  That is the same day we likely will see some of the Term’s big decisions.  I will be doing some blogging on Yahoo! News, though if you want some immediate thoughts keep reading.

There are at least two major pending cases that likely would come down on Monday.  There is the case involving the constitutionality of Chicago’s gun ordinance.  And there is another case challenging the constitutionality of the agency Congress set up to patrol accounting firms after the Enron and WorldCom scandals.

It is not obvious why the Chief Justice would have wanted these cases to happen on the same day that millions tune into the Kagan hearings, if there is anything in the decisions that will lead to heat on the current five-member conservative majority.  Typically the Chief has some control over when decisions come down.  So, some guesses:

1. The decisions will not come down in a conservative direction.  This is not my best guess – I think the Chicago ordinance and the congressional agency are going down.

2. The liberals on the Court were still drafting opinions in response so that release was not ready earlier, when it would be less of a problem.  Or maybe the liberals stalled things out for precisely this reason.

3. If the decisions don’t come down this week, then I’m guessing the Chief had a hand in making sure the collision didn’t happen.

If you think I’m painting the justices as a little too Machiavellian . . . well, this very sort of thing happened in the spring of 1937 as the country was considering FDR’s plan to pack the Supreme Court.  Want to hear more?  Read chapter 7 of my book (including the footnotes!) and Jeff Shesol’s great new book on the Court-packing plan, Supreme Power.

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As the Supreme Court moves into its end-of-term big decisions, and we gear up for the confirmation hearings for Elena Kagan, SCOTUSblug asked me to live-chat on their blog.  You can read the transcript here.  I talk about how the Supreme Court stays tuned to the will of the people, what to think of recent Roberts Court decisions, and the future, and much more.  Thanks to all the journalists, students, professors, and others who wrote in!

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With Justice Stevens’ retirement, what is the future of the Roberts Court?  Responding to critics, Jeffrey Rosen and I introduce some realism into debates over what one can expect out of the Supreme Court.  You can read what we say on the subject in our recent piece in The New Republic. http://www.tnr.com/article/politics/the-battle-over-the-court

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In San Francisco, they are trying the constitutionality of a referendum overturning same-sex marriage.  The Supreme Court barred broadcasting.  This makes little sense given that popular opinion in the long term will decide this issue.

I just published an op ed in the Lost Angeles Times on the subject.  This is what I said:

Opinion

Prop. 8, the trial that should be seen

It’s more than a legal case; it’s a morality play aimed at all of us, and we should get to hear it.

By Barry FriedmanJanuary 15, 2010

It’s too bad the U.S. Supreme Court ruled Wednesday that California’s Proposition 8 trial on same-sex marriage — Perry vs. Schwarzenegger — may not be broadcast beyond the courthouse. Like the Scopes “monkey trial” with which it is sometimes compared, Perry is not a legal case in the strict sense. It is a morality play aimed at all of us, speaking in a sense for all of us, and we should get to hear it.

In 1925, the national media descended on the small mountain town of Dayton, Tenn., to watch legendary lawyer Clarence Darrow go up against Populist leader William Jennings Bryan. The ostensible basis for the suit was whether barring an instructor from teaching evolution violated his rights. In truth, Scopes became a stage play reflecting a brewing public debate between fundamentalist Christian values and enlightenment scientific positions. The trial was covered by hordes of print journalists and was the first to be broadcast nationally by radio, and countless Americans tuned in.

The parallels with the Perry trial are telling. It too is peopled by star lawyers, most notably David Boies and Theodore Olson, who faced off in Bush vs. Gore and have now joined hands in support of gay marriage. The issue is equally fundamental. And what happens in San Francisco may be the first step in the resolution of an issue that not only affects, but implicates, us all.

The question of cameras in the courtroom involves a trade-off between every citizen’s right to watch the processes of government and fairness to the parties, witnesses and jurors. It is all the more complicated here by questions of whether the trial court followed procedures in allowing the broadcast in the first place.

But Perry, like Scopes, is no ordinary trial. In most court cases, something happened, and the purpose of the trial is to ascertain exactly what that was. Did the defendant mug the victim or cook the corporation’s books; was a company negligent to design the car the way it did? When it comes to courtrooms, we worry about fact-finding biased by the presence of cameras, and about witness and juror safety.

The questions being tried in Perry are of an entirely different nature. To “prove” their case, the plaintiffs must show that California has no legitimate — let alone compelling — interest in regulating who gets married. So the witnesses are “testifying” about the history and meaning of marriage, the profoundness of their love for one another, the morality of homosexuality and animus about gays. Guess what. Legal procedure won’t resolve these “facts.”

The participants in Perry are already on camera, like it or not. The case is part of a national drama over gay rights in which the participants choose to take a part. There is one legitimate concern about cameras. Opponents of Proposition 8 have used modern technology to “out” the donors to the campaign against gay marriage, and some of the latter have been harassed.

This sort of behavior is troubling no matter who engages in it; the law protected donor lists to the NAACP in the South for similar reasons. But, as the Supreme Court dissent pointed out, the witnesses already are fully in the public eye.

The current trial is but the first step on a ladder that was always designed to end in the Supreme Court. Cases like Perry have almost nothing to do with the parties in them (though those parties will surely be affected). They are aimed at social change, and in this dispute, some see the Supreme Court as the brass ring.

The thing about social change through the courts is that it invariably rests on what the broader public thinks. Consider the famous social change cases: Brown vs. Board of Education on segregation in public schools; almost any abortion case; Lawrence vs. Texas on gay rights and anti-sodomy laws. In these cases the court did not buck or define social views so much as confirm them. More and more, for better or for worse, Supreme Court decisions on social issues reflect opinion polls.

That’s why the plaintiffs in Perry want the trial televised, and the defendants do not. There’s a huge national to and fro going on over gay marriage. The plaintiffs hope to out the opposition to gay marriage as nothing but irrational hatefulness. The trial record is intended to be Exhibit A in the Supreme Court. But to prevail, the plaintiffs and their supporters ultimately must capture the hearts and minds of the American people.

The high court, perversely, felt broadcasting should be banned precisely because “this case . . . involves issues subject to intense debate in our society.” The majority stressed that studies had not shown “the effect of broadcasting in high-profile, divisive cases.” What, imaginably, could that bad effect be? That the American people might have views on the subject and debate them?

Many proponents of same-sex marriage in the gay community opposed the Perry litigation, believing that the suit came too quickly; that public opinion is unsettled. Scopes may be instructive here as well. John Scopes lost and paid a small fine, though even that was overturned on appeal. But the real effect of the trial was to embolden creationists; it potentially set back the widespread teaching of evolution for years. The issue of creationism — now called “intelligent design” — was “tried” in Pennsylvania in 2005; it has not gone away.

It’s wrong, of course, to think the Supreme Court will “resolve” this issue, any more than it managed to resolve the issues of segregation, abortion, the death penalty or gay rights, for that matter. But what the court ultimately decides (if it decides), and on what basis, will profoundly affect the terms of the debate. If matters of social change are going to be debated in the courts, we all should get to view the process — and, through our reactions, to participate in it.

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During her confirmation hearings Justice Sonia Sotmayor insisted that the law decides cases, not a justice’s background or ideology.  Linda Greenhouse recently expressed hope that Sotomayor will abandon that line on the Court.  But why?  What could be more instructive than watching Supreme Court justices reaching opposing results while claiming to apply the same law neutrally?

Writing this weekend in The Opinionator, the New York Times’ on-line adjunct, Linda Greenhouse noted the superficial affinity between Sotomayor’s and Chief Justice John Roberts’ views of the law.  Roberts in his confirmation hearings hewed to the neutral law and neutral judge line, famously saying that “Judges are like umpires. Umpires don’t make the rules; they apply them.”  After the flap about her prior remarks that a judge’s background influenced decisions, in her confirmation hearings Sotomayor also took the neutrality line on law and judging.  She appeared to disavow the very characteristic President Obama identified as important to a good justice:  empathy.

But Greenhouse looks at a recent ruling of Sotomayor’s, and expresses the hope that “she does understand, after all, that something beyond an abstraction called “the law” determines how judges behave.”  The basis for Greenhouse’s hope was that Sotomayor signed on to a “statement” Justice John Paul Stevens wrote in the decision to deny a stay of execution to John Allen Muhammed, the D.C. area sniper recently executed by the State of Virginia.  In that statement, Stevens complained about the practice of setting execution dates for inmates before their appeals to the Supreme Court had run their course.

I’m not sure why Greenhouse wants Sotomayor to acknowledge that “something beyond an abstraction called ‘the law’ determines how judges behave.”  Perhaps simply because Greenhouse believes this is true – and if so then she is surely right, at least with regard to salient tightly-balanced Supreme Court cases.  (On the other hand, one might hope for the sake of the rule of law that Greenhouse is not right in countless cases faced by lower court judges.)  But wanting Sotomayor to acknowledge the fact is an entirely different matter.  It is less clear why Greenhouse wants this.

From the baloney fed the public by Supreme Court nominees at their confirmation hearings, one can only assume that the public itself wants to believe “an abstraction called ‘the law’” decides Supreme Court cases.  If not, why would the nominees take this line so devoutly?  Perhaps Senators who must do the confirming believe it, and don’t care what their constituents think, but this story is a little hard to buy.  One must assume nominees say this because it resonates with the public.

At the same time, one is wise to recall Robert Bork’s defeat in just such circumstances.  As I make clear in my chapter 7 of my book, The Will of the People, Bork’s nomination faltered on the fact that the public cares about the results of Supreme Court decisions, not the methodology by which they are reached.

Given the fact that so many conservative results lately are rendered under the supposed neutrality of the law, what Greenhouse really might have hoped is that Sotomayor would hew to the neutrality line while regularly voting the opposite way of the Chief Justice.  Imagine that:  Two Justices, each claiming fidelity to the same neutral and dispositive law, reaching wildly-differing outcomes.  How could that be?

Now, that would be something to think about.

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The Obama Administration has been slow to fill federal judicial vacancies.  This may be in keeping with the President’s view that social change should occur through the democratic process.  But he should bear in mind that the long-term fate of social change often rests in the courts, which can step on – or ratify – the work of political movements.

The New York Times reported this weekend on the Obama Administration’s lethargic rate of judicial nominations.  In addition, key personnel in the White House counsel’s office responsible for such appointments are departing.  And the Senate has yet to confirm Christopher Schroeder, the nominee for the head of the Office of Legal Policy, which also bears a large part of the burden of vetting judicial nominees.

One suspects that among the many issues this Administration must juggle, the judiciary is not a top priority.  The Administration’s response to criticism about the pace of judicial appointments is that it is focusing on the confirmation rate, not the appointment rate.  But it is no secret the President places his higher hopes on politics and the power of democratic change, rather than the sort of legal liberalism of the Warren Court years.

Still, the President would be wise to recognize that courts and social movements have a symbiotic relationship. To state the obvious, judges can use their power of judicial review, and their role as statutory interpreters, to wreck havoc with the handiwork of politics.  Consider, for example, what the Supreme Court has done to the entire Guantanamo policy.

More important still, courts can ratify the work of political movements.  The New Deal’s shift to national control of the economy took lasting hold because judges changed their entire interpretive approach to accommodate it.  When judges buy into political change, such change becomes part of the very tissue of the law.  In this way, political accomplishments persist long after their proponents have departed their elective offices.

When a President’s agenda is primarily domestic, as is Barack Obama’s, judicial allies are essential.  Be it health care or the regulation of financial institutions, these regulatory changes ultimately will depend upon judges for their interpretation and implementation.  A hostile judiciary can tear a regulatory regime to pieces; a favorable one can enshrine it.

Simply put, it is not an either-or proposition:  judicial or political change.  The two work in tandem.  It’s both fine and appropriate to focus on the political.  That’s where one’s legacy is made.  But whether that legacy endures often depends, in the final analysis, on the courts.

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Now that the Supreme Court’s 2009 Term is under way, it is interesting to look at how the docket is shaping up.  Two categories of cases dominate:  business cases and criminal cases.  Business cases are roughly half the docket, and there’s a full plate of criminal issues as well.  Let’s think about why that might be.

One obvious explanation is probably only partially correct.  Given the downturn in the economy, and the fact that economic issues have dominated American politics over the past year or so, it is not surprising that these sorts of issues are heavily-represented on the Court’s docket.  As is evident in The Will of the People the Court is usually embedded in the issues of greatest importance to the American people at any given point in time. 

There are surely cases before the Court that grow out of the country’s financial troubles, most notably the challenge to the constitutionality of the Public Company Accounting Oversight Board.  And the several cases involving debt collection and bankruptcy undoubtedly present themselves as more worthy of the Justices’ attention in the current economic climate.

Still, it takes time for issues of immediate public concern to blossom fully on the Court’s docket; most legal matters involving the economy are unlikely to have made it to the high court yet.  Lots of this Term’s business cases have no obvious connection to current economic issues.  Similarly, one might think that bad economic times breed criminal litigation, but the sorts of questions the Court is tackling – e.g., life without parole for juveniles, questions regarding sex offenders, and a spate of Miranda cases – have little to do with crime and the economy.  (Besides, crime rates may be falling, not rising.)

The better answer rests in understanding the strategic interaction that takes place among the justices as they shape their docket.  Cases appear on the docket when four justices vote to grant the writ of certiorari.  Any justice voting to grant cert in a case should have the good sense to look ahead to what the vote count on the ultimate outcome is likely to be.  If the case is “cert-worthy” by traditional criteria, but a justice is likely to lose big on the merits, the logical thing for her to do is vote to deny review.  Political scientists call these “defensive denials.”  (The alternative, when a justice knows he can win big, would be an “aggressive grant” – a case that might not be cert-worthy, but provides the opportunity for moving the law in a favored way.)

The present Court is in flux, and the justices are understandably wary about the way their colleagues will vote to resolve cases.  The wild card, especially for conservatives in big cases, is Anthony Kennedy.  The fact that he cannot necessarily be counted on to vote with them, might lead his conservative colleagues to avoid hearing these big ideological disputes.  For the same reason, the left side of the bench would be similarly wary of the Man in the Middle and reluctant to take the same kind of cases.

In both business and criminal cases, however, ideology has not played out the same way as in many other sorts of issues.  In the early years of the Roberts Court the justices were often unanimous in business cases.  Although that sort of agreement has fallen by the wayside, and many business cases now are decided by close votes, those votes are not necessarily cast along typical ideological lines – the preemption cases of last Term being a good example.  Similarly, the criminal cases often involve strange bedfellows.  Many of the “liberal” justices can be quite conservative on criminal issues:  Stephen Breyer is one example, and Sonia Sotomayor may prove another.  And both Justice Scalia and Justice Thomas also have been known to jump sides on issues involving sentencing or the confrontation clause, to name but two. 

So, a better explanation for the composition of the Court’s docket is that these are cases unlikely to divide the justices ideologically.  Some of the cases are genuinely interesting or important ones, in which the outcome is not fore-ordained.  The justices can vote to take these cases, and decide them in a deliberative way that is more in keeping with the public’s ideal of what the Court does.  Other cases might be more predictable – the Miranda cases come to mind here – and yet there might be enough agreement on the Court to make it easy for the justices to grant cert in them as well.

From the justices’ perspective, business and criminal cases are a safe haven:  that’s where we can expect to see the action.

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Pundits are predicting the Supreme Court is poised to invalidate a key provision of the campaign finance laws in the Citizens United case.  They were making similar predictions regarding the pre-clearance provisions of the Voting Rights Act last term – but in that instance the Court ducked.  The interesting question is why the Court would avoid controversy in one case, but not the other. 

With regard to the Voting Rights Case – NAMUNDO v. HolderJack Balkin and I both felt the Court was responding to the political environment the justices face.  The Voting Rights Act is popular with Democrats and had recently been renewed with overwhelming majorities in both houses of Congress.  Barack Obama is in the White House.  Over-ruling a key provision of the recently-renewed congressional law might have brought the Court in for some serious and uncomfortable criticism.

But if the justices are seeking to avoid this kind of trouble, why would they feel safe to go ahead and strike down the ban on corporate electioneering in the Bipartisan Campaign Reform Act. 

One answer might involve salience.  Campaign finance is not an issue that seems to rank high on the public’s list of important issues.  Of course, it is not clear that overturning the voting rights law would have brought much of a public backlash either.  The threat in that case seemed mostly congressional, and so this difference may not be determinative.

On the other hand, Citizens United was a First Amendment case.  The justices are particularly lacking in deference to Congress when it comes to the First Amendment.  Think here of internet porn, school prayer, flag burning.  But still this begs the question.  Why is the First not like all other amendments when it comes to judicial review?

A related answer might involve the media.  Perhaps the justices may have more leeway in First Amendment cases because the media – which understandably loves the First Amendment – offers the Court some cover from the political heat in these cases. 

And in fact, the tension between cleaning up politics, and suppressing speech to do so, has split the left over the constitutionality of the campaign finance provisions.  This is a message readily apparent to the justices from the amicus briefs filed in Citizens United.  As Mark Graber has argued persuasively, such splits in the governing coalition create yet further space for the justices to go ahead and rule as they would like.

For all the reasons that held sway in NAMUNDO the justices might ultimately conclude that discretion is the better part of valor.  Half-way measures have been urged on the Court that would allow it to stop short of overruling Austin v. Michigan Chamber of Commerce and striking the corporate electioneering provision of BCRA.  But this time there are reasons on the other side as well.

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