Category: Supreme Court


The Future of the Supreme Court

supremecourt11a.jpgOver at SCOTUS Blog, Tom Goldstein wonders what would happen to the Supreme Court if a Republican were to win the presidency in 2008:

As a consequence, whether the Court moves more fundamentally to the right, so that it could genuinely undo the jurisprudence of the Warren Court, depends on the next President. If two or three of the moderate-to-liberal votes were replaced with genuine conservatives, the existing constraints on more radical doctrinal shifts created by swing votes like Kennedy or O’Connor would be lifted. . . .

In sum, the 2008 election window presents the most significant opportunity to shape the direction of the Supreme Court that can be anticipated for roughly the next two decades – i.e., as far into the future as anyone can reasonably hope to look. For the left and the right, the stakes are genuinely high.

Orin Kerr replies:

I look at things differently, and a thought experiment explains why. Imagine the year is 1969, the end of a decade of 5-4 constitutional blockbusters, and Chief Justice Warren has recently announced his retirement. A time-traveler from 2007 comes back and tells you the dramatic news about who would nominate the Justices of the next four decades. He explains to you that American politics would shift sharply to the right in the future, and that that in the next four decades 12 of the 14 new Justices — over 85% — would be nominated by Republicans.

Orin is right that predicting the future of the Supreme Court based on elections is fraught with peril. Yet there is a fundamental difference between today and 1969 that makes Orin’s hypothetical not very apt. Today, the appointments process is much different — is is far more partisan. Partly because Republican presidents appointed justices who turned out to be liberal, there has been a backlash that has resulted in far more vetting of candidates. Is it possible for more Souters or Blackmuns to slip through a Republican administration? Certainly, anything is possible. But I doubt that it is likely. The lessons of the past will weigh heavily on every president, whether Republican or Democrat. With the Court hanging in the balance, I bet most presidential administrations will carefully vet their nominees.

The days where Supreme Court nominees turn out to be ideological surprises are largely gone. This is due, in part, to the widespread acceptance of the legal realist notion that justices are not neutral interpreters of the law; to the increasing involvement throughout the twentieth century of the Court in the political and social issues of the day; to the increasingly bitter confirmation battles that now have become a hollow ritual of empty rhetoric; and to the lessons of history that nominees not thoroughly vetted can turn into longstanding sources of regret. I wish we could go back to the more innocent age of 1969, but I doubt that we can recover such lost innocence.

The only transformation I see capable of changing the appointments process is a major realignment in political thought. For example, during the New Deal, it was the liberals who were calling for judicial restraint. It took a while before attitudes realigned, with conservative justices (such as Felix Frankfurter) continuing to advocate for judicial restraint while the liberal justices pressed for Warren Court expansion of rights. We’re still living in this paradigm, and until it shifts, we won’t be seeing any more surprise justices.

Therefore, I agree with Tom Goldstein that the next election is pivotal for the Supreme Court.


The Death of Fact-finding and the Birth of Truth

magnififying.jpgToday’s Supreme Court decision in Scott v. Harris is likely to have profound long-term jurisprudential consequences. At stake: whether trial courts, or appellate courts, are to have the last say on what the record means. Or, more grandly, does litigation make findings of fact, or truth?

The story itself is pretty simple. Victor Harris was speeding on a Georgia highway. Timothy Scott, a state deputy, attempted to pull him over, along with other officers. Six minutes later, after a high-speed chase captured on a camcorder on Scott’s car, Scott spun Harris’ car off the road, leading to an accident. Harris is now a quadriplegic. He sued Scott for using excessive force in his arrest. On summary judgment, the District Court denied Scott’s qualified immunity defense; the Eleventh Circuit affirmed.

Justice Scalia, writing for the majority, noted that the “first step is . . . to determine the relevant facts.” Normally, of course, courts take the non-moving party’s version of the facts as given. [Or, to be more precise, the district court resolves factual disputes in favor of the non-moving party.] But here, the videotape “quite clearly contradicts the version of the story told by respondent and adopted by the Court of Appeals.” Notwithstanding a disagreement with Justice Stevens on what whether that statement was accurate (“We are happy to allow the videotape to speak for itself.” Slip Op. at 5), the Court proceeded to reject the nonmoving party’s version of the facts. To do so, it relied on the ordinary rule that the dispute of facts must be “genuine”: the Respondent’s version of the facts is “so utterly discredited by the record that no reasonable jury could have believed him.” (Slip Op. at 8).

Let’s get a bias out of the way. At the Court’s suggestion, I watched the video. I lean toward Justice Stevens’ view: “This is hardly the stuff of Hollywood. To the contrary, the video does not reveal any incidents that could even be remotely characterized as ‘close calls.'” Such a dispute over a common story immediately highlights the most serious problem with the Court’s opinion: we all see what we want to see; behavioral biases like attribution and availability lead to individualized view of events. Where the majority sees explosions, Justice Stevens sees “headlights of vehicles zooming by in the opposite lane.” (Dissent at 2, n.1 – and check out the rest of the sentence for a casual swipe against the younger members of the court.) It brings to mind the Kahan/Slovic/Braman/Gastil/Cohen work on the perceptions of risk: each Justice saw the risk of speeding through his or her own cultural prism.

But even if I agreed with the majority on what the videotape shows, the Court’s opinion is disruptive to fundamental principles of American Law. Justice Stevens suggests that the majority is acting like a jury, reaching a “verdict that differs from the views of the judges on both the District court and the Court of Appeals who are surely more familiar with the hazards of driving on Georgia roads than we are.” (Dissent at 1). There are several problems with such appellate fact finding based on videotape that the Court ignores.

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Bong Hits for What?

Thanks to Dan for the introduction and to the whole Co-op team for hosting me. And thanks for your indulgence over the next few weeks as I share a few thoughts on constitutional law, criminal law, and other topics.

This morning, the Supreme Court heard oral arguments in Morse v. Frederick, the First Amendment case involving a high school student suspended for displaying a banner emblazoned, “Bong Hits 4 Jesus.” Joseph Frederick was an 18-year-old high school senior in January 2002, when he displayed his banner across the street from his high school in Juneau, Alaska, as the Olympic torch procession passed by. The Ninth Circuit found that Frederick’s First Amendment rights were violated even under the less protective standards applied to student speech. The school board (represented by Ken Starr) has denounced the Ninth Circuit’s decision as “unforgivingly libertarian.” As Linda Greenhouse and Marty Lederman have noted, a number of conservative religious organizations have filed briefs in support of Joseph Frederick. The organizations are apparently deeply concerned by the far-reaching authority that the school district has asserted to suppress speech inconsistent with the school’s own understanding of its “basic educational mission,” a mission that may include the inculcation of support for specific public policy positions.

So much for the weighty doctrinal questions that are likely to capture the Court’s attention. One of the things I find most interesting—and amusing—about the case is a slightly different underlying question: what does “Bong Hits 4 Jesus” mean, anyway?

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A Simple Fix for Judges’ Salaries: Better Regional Cost-of-Living Adjustment

[ I started writing this as a comment to Frank’s post, but it got too long. ]

I’m tempted to reiterate my whole blog post mocking Judge Luttig’s salary complaint, but I’ll limit myself to an excerpt:

Can someone point me to the folk song about the guy who couldn’t afford college for his two young’uns because he earned only $3.4 million over 20 years as a high-level judge? … I do not have Luttig’s expenses, and I’m a fairly frugal guy, so let me use the soapbox of Prawfsblawg to make President Bush this offer: I’ll do the job for just $170,800, which means a $1,000 savings for the American people!

My serious point was to express doubt about the empirical assertion Justice Kennedy is now making: “I’m losing my best judges” because of low salaries. I just don’t buy it; even if there are scattered examples, I doubt that the White House can’t find a few dozen amazingly qualified nominees a year fromamong the million lawyers in the country.

Part of my skepticism is this: I may not believe judges’ self-reported reasons for leaving the judiciary. Yes, Luttig’s departure is a loss if we want the best and brightest on the bench. But consider his timing: he quit shortly after the second time President Bush passed him up for the Court in favor of two other white male appellate judges. By then, Luttig had to realize Bush wasn’t going to appoint him: (1) any third Bush nominee very likely would be a women or minority; and (2) Bush probably passed him over for a real reason: most likely, that Luttig is a “small-gov’t” conservative who once wrote an opinion that would have curtailed executive power whereas Alito and Roberts had a record of favoring broad executive and prosecutorial power — Bush’s primary goal with nominees, as evidenced by the nomination of Harriet Miers (who had no abortion record but a strong record of helping the White House seek broad presidential power).

This timing was reminiscent of Robert Bork’s departure from the bench a year after his Court nomination failed. Maybe this “I didn’t make it to the Supremes” story isn’t inconsistent with the “low salary” story — e.g., “if I’m not making it to the Court, I’ll cash out.” Even if so, does anyone think a raise from $171K to, say, $205K (a 20% jump, probably more than Kennedy hopes for) would’ve kept Luttig from going to Boeing once he gave up hopes of becoming a Justice?

There are two arguments for higher judicial salaries I might buy, the first being Frank’s point that we might get a more diverse judiciary with higher salaries, because we could attract those who became lawyers without family wealth and hold lower-paying jobs (legal aid, prosecution, etc.). But this is an empirical question — are many middle-class and/or minority lawyers in fact not pursuing judgeships for salary reasons? I’m dubious.

Second, maybe we need higher cost-of-living adjustments in particular cities with especially inflated salaries and housing costs. Justice Kennedy’s tale of former clerks making more than their judges may happen in NY and DC, but not in most places. E.g., according to the NALP directory, entry-level salaries in many states are about half of NY’s: e.g., Maine (Portland: $71-73K); Nebraska (Omaha: $77-80K); New Mexico (Albuquerque: $70-73K). (These are the first states I looked at, specifically avoiding states with <1 million like Idaho or Vermont.) Even in top-30-population cities like Denver and Milwaukee, former clerks who join big firms don’t out-earn their judges.

In short, Justice Kennedy’s factual premise about lawyer salaries doesn’t support the nationwide salary increase he seeks, just some tinkering with cost-of-living salary adjustments for a few big cities. I don’t know if that’s worth pounding the table before a Senate Committee.


Vanity Fair on Hamdan et al.

Marie Brenner, at Vanity Fair, has written a really fascinating article on the genesis of Hamdan. It focuses on Neal Katyal and Charlie Swift. Here are a few excerpts (but, of course, this is one you will want to read yourself). On Larry Tribe’s role at a moot:

During the weeks Katyal prepared to argue Hamdan’s case in front of the Supreme Court, he slept little. He traveled to law schools and law firms around the country, mooting his case 15 times, and each time he came away with more critiques and more suggestions. He assembled a team of law students and worked with Joe McMillan, an expert on international law and a senior partner at the law firm Perkins Coie. Eventually, three lawyers at the firm were helping pro bono. In his first practice session at Harvard, Laurence Tribe told him, “Neal, you feel a little small at the podium.” Katyal understood that this meant he was overly deferential when it came to addressing the Supremes

On winning and the blogosphere:

Paraphrasing Justice Breyer, Swift recalls the scene: “‘As I understand it the petitioner says that the guy is not a combatant because he is not engaged in classic combatant acts.… The war in which you say he was fighting is not actually a war.’ I was suddenly quivering in the courtroom, thinking, He’s got it! We have won! I am singing Hallelujah!”

On the day the decision came down, June 29, the telephones began to ring in the jag offices. Katyal and Swift were at the court, waiting to hear the decision read. Within moments, the jag lawyers, reading, were shouting, “We won! We won! We won everything!”

On John Yoo

‘I kind of feel like I have been hung out to dry,” says John Yoo. “People say that I am responsible for everything, as if I had the full point plan for what we are going to do. In fact, I was fairly low down on the organizational chart. [Those above me] have basically decided they are not going to talk about this anymore. It is as if, if all the flak falls on this guy, well, fine. I don’t like it, but unlike them I think it is my responsibility to explain what we did and why.”

Yoo and I met in Philadelphia, in the lobby of his hotel, near Independence Hall, where he was preparing to be interviewed about his book War by Other Means. Round-faced and amiable, he seemed younger than his 39 years. His conversation is larded with euphemisms—”factor,” “cost,” “a negative”—which he uses to explain his analysis of torture. It was a “factor” for Yoo that “coercive methods” might make evidence inadmissible in a trial. Did he ever consider the moral implications of locking away in shackles potentially innocent men who had little ability to petition a court? “I said that I had no doubt it would be extremely controversial. I talked to people about it,” he told me. And his conclusion? “The one negative was international opinion,” he said, giving the phrase all the weight of a potato chip.


Supreme Court docket down; citations to bloggers up

Linda Greenhouse’s NYT article is fascinating, noting that:

The reasons for the decline all grow out of forces building for decades. The federal government has been losing fewer cases in the lower courts and so has less reason to appeal. As Congress enacts fewer laws, the justices have fewer statutes to interpret. And justices who think they might end up on the losing side of an important case might vote not to take it.

The drop in the Court’s docket is fascinating, and Greenhouse’s article sets out some interesting potential contributing factors (noting a decline in filings by the Solicitor General, for instance).

Of possibly even greater interest to the professional navel gazers blogging world is Greenhouse’s familiar citation to of the legal blogosphere in her article. She mentions a SCOTUSBlog post by Tom Goldstein (which seems to have provided some of the initial idea for her own article); she also casually mentions a blog post by Orin Kerr.

Blog readers everywhere have to be wondering if Greenhouse’s article doesn’t provide its own answer. Supreme Court case load down . . . cites to bloggers up . . . could the two be somehow connected?

There is no correlation; grasshopper, there is only causation. And this one is easy: Supreme Court case numbers are down because of legal blogs.

Orin and Dan and Eugene and Stephen Bainbridge and Gordon Smith (and so on, and so forth) are successfully solving problems before the Justices get to them, and blogging the answers in real time. And given the blogosphere’s growth, it’s just going to get worse. The Court’s docket will continue to shrink until the frustrated Justices eventually cave in and begin blogging themselves (instead of just lurking). So just you watch — by next term, all new clerks will be required to know Movable Type.

Remember, you heard it here first.


Nazi Stolen Art Claims Pervade Record Auction

Welcome to the season of the major art auctions in New York. The New York Times (11/9/06) reported:

In a landmark sale, the biggest in auction history, nearly half a billion dollars’ worth of art changed hands last night at Christie’s sale of Impressionist and modern art. Soaring prices for blockbuster paintings by Klimt and Gauguin left thousands of spectators, who came to watch and to buy, gasping.

Not me. Instead I’m gasping at all the legal back stories involved in Wednesday night’s auction.

Picasso_angel_fernandez_de_soto.jpgThe most current one involved Christie’s lead item: Picasso’s “Portrait de Angel Fernandez de Soto” a.k.a. “The Absinthe Drinker.” On Monday, SDNY judge Jed Rakoff dismissed a suit brought against the auction house by an heir of a prominent Jewish Berlin banker who had owned the painting during WWII. The suit claimed title to the painting and sought its return or $60 million plus attorneys fees. Although Judge Rakoff ruled that the federal court had no jurisdiction over the matter, he hinted at his opinion on the merits stating, “I know that no one in the art world is just interested in money or in buying and selling paintings for profit. They’re guided by their belief in truth and beauty. But nevertheless, one might suspect that this is just a fight about money.” That suspicion was first raised by Christie’s who publicly questioned the motivation of the plaintiff in waiting 70 years to bring suit and then only days before this major auction. Christie’s attempted to take the high ground calling the plaintiff’s actions “a disservice to the restitution community.”

The painting has been owned by the foundation of Sir Andrew Lloyd Weber’s (of “Cats” fame) since 1995. According to the plaintiff, his ancestor consigned the painting to his Swiss art dealer who sold it in the last months of his life. Christie’s contends the painting was sold after his death, but argues that either way it was a legal sale. The plaintiff’s suit rests on his claim the sale of the painting was under duress by the Nazis; a so-called “forced sale.” In this case, it seems that the Nazis seized the banker’s assets thereby forcing him to sell the art in 1934 in a depressed Berlin art market. This set of facts departs slightly from successful forced-sale claims in which art was sold in “Jew auctions” where Jewish art dealers were prohibited from making sales other than through Nazi-organized art auctions.

The lawsuit was re-filed in New York State Supreme Court on Wednesday. Finally, just hours before the auction, Christie’s announced it was withdrawing the painting because “of eleventh-hour claims” that cast a “cloud of doubt” over title to the painting. The painting was estimated sale at $40 to $60 million. This means that if the painting were sold at say $50 million (all the other works sold exceeded their estimates), Christie’s lost $6 million, or its 12% commission (the lower commission charged for expensive works).

pAdele1.jpgAlso part of Wednesday’s auction were five Gustav Klimts that were the subject of a 2004 Supreme Court case, Austria v. Altmann, 541 U.S. 677. In that case, Adele Bloch-Bauer, the subject of one of the paintings, willed the paintings to the Austrian Museum upon her husband’s death. She died, the WWII ensued and the paintings were seized by the Nazis. After the war, her husband willed them to their nieces and nephews. The Supreme Court ruled that the 1976 Foreign Sovereign Immunities Act could be applied retroactively to Altmann’s case, thus paving the way for Altman to sue the Austrian Government in US Courts. In April of this year, the Austrian National Gallery was compelled by a national arbitration board to return the five paintings to Maria Altmann, the niece of the original owner. On Wednesday night, the portrait of Adele Bloch-Bauer sold for $87.9 million, a Klimt record and almost double its estimate. The room reportedly exploded in applause.

Still another work in Wednesday’s auction was the subject of a legal dispute. “Berliner Strassenszene” by Ernst Ludwig Kirchner was only recently was turned over to the heirs of Jewish shoe factory owner Alfred Hess by the Bruecke-Museum in Berlin, where it hung since 1980. In that dispute, Hess’ widow contended she was intimidated into bringing the painting back to Germany from safety in Switzerland.


Lies, damn lies, and statistics

The Senate race is all about the Supreme Court, my friends tell me. If you want one type of Justice, vote Republican; if you want another type, vote Democrat. They’re right, of course. The Senate will have to confirm any appointments that Bush makes in the next two years. But just what kinds of results can we expect from a Democratic versus a Republican Senate? A quick survey of recent justices (excluding Justices Roberts and Alito, who are too new to really judge) shows:

Recent Justices Nominated by Republican President and Confirmed by a Democratic Senate

Clarence Thomas

David Souter

Anthony Kennedy

William Rehnquist

Recent Justices Nominated by Republican President and Confirmed by a Republican Senate

Antonin Scalia

Sandra Day O’Connor

The results are clear, aren’t they? If you would like to see justices similar to Justice O’Connor appointed, then vote Republican. And if you would like justices like Justice Thomas or Chief Justice Rehnquist appointed, then vote Democratic. History doesn’t lie, does it? Based on past history, for example, you can accurately tell your friends that you’re voting Republican this year because you didn’t much like Justice Thomas and Chief Justice Rehnquist, and prefer Justice O’Connor.

I only hope this information doesn’t arrive too late to influence anyone’s political choices this election day.