Category: Supreme Court


The Kagan Nomination

Various news outlets are reporting that Elena Kagan will be the next Justice pending confirmation.  Earlier today I said this would be a really lackluster and troubling choice.  Troubling, I think, was too strong. But I’m sticking with lackluster.  Her nomination is like going to a five-star restaurant with a fantastic dessert menu and ordering vanilla ice cream.

Let’s consider the nominee’s record.  Is she a stellar Solicitor General?  Hardly.  Her office’s handling of Citizens United was a disaster and her oral arguments in other cases were plodding at best.  Is she an outstanding writer?  No, though you can read her (few) law review articles and judge for yourself.  Was she a good scholar?  Well, the University of Chicago Law School must not have thought so, as they apparently did not ask her to come back after she served in the Clinton Administration.  Does she possess a judicious temperament?  The people who worked most closely with her and for her will have to answer that one.

Ultimately, her only real credential is that she was a good dean at Harvard Law School.  (Of course, she was a good dean during the bubble and got out just as the gravy train left town, but that’s not her fault.)  Is that supposed to be compelling?  I don’t see why.  Able administrators are important, but I don’t think that correlates with what makes someone a good appellate judge.

Now am I saying that Kagan should be rejected?  No.  I’ve made it clear with respect to Goodwin Liu’s nomination that I think the President’s picks should be approved by the Senate so long as the person is qualified and falls within the mainstream of the President’s party.  The SG clearly fits the latter criterion and (marginally) meets the first one.  (I mean, she not Harriet Miers.)  And who knows, maybe she’ll turn out to be a great Justice.  But it’s a risky bet.

UPDATE:  So who will the new SG be?


The New Justice

Building on Brandon’s post, I sure hope that the President does not pick Elena Kagan.  I think that she would be a really lackluster and troubling choice.  But I’ll hold my fire until the nominee is announced tomorrow.


Will Kagan be the Next Supreme Court Justice?

First, I’m thrilled to be guest blogging at Concurring Opinions. I look forward to an illuminating conversation regarding the Supreme Court’s next justice.

Mike Allen at Politico reports that, based on White House sources, Elena Kagan will be the next Supreme Court justice (thanks to Dave Hoffman for sending the story). Author of the reliable “Playbook” on Politico, Mike Allen is a force to be reckoned with. Of course, once word leaked that Kagan was the one, the White House sought to diffuse the rumors, claiming the president has not yet made his decision. This leads to speculation, of course, over whether the White House is floating a test balloon. They may want to test the reaction to hot-button issues like Kagan’s opposition to military recruiters at Harvard, which would undoubtedly be a dominant theme in a Kagan confirmation process.

My prediction for the next justice, which I realize is probably now incorrect given the latest developments, was Judge Diane Wood.  Back in December, Mike Sacks at First One at One First made a compelling case for Judge Wood. Above the Law also makes an in-depth argument for Wood. In addition, the New York Times had an interesting story a few weeks ago about Judge Wood’s persuasive abilities, at times even winning over her conservative — and legendary — colleagues, Judges Posner and Easterbrook.  That story further convinced me that Wood would be the one. President Obama may see her as a potentially persuasive force on a polarized Supreme Court. But she is widely perceived to be more liberal than Kagan, and she has an established judicial record. Though I will say that if a Kagan confirmation process turned almost completely on the military recruiters issue, then Kagan is going to be perceived as quite liberal and painted as extreme in her views. So in the end, who would really be perceived as more liberal once the confirmation process starts gaining momentum? Kagan or Wood?


Fragmented Opinions

When Chief Justice Roberts was nominated in 2005, there was a lot of discussion about his goal of reducing the number of 5-4 opinions.  That hasn’t worked out, but I was never sure about how much that matters.  With rare exceptions, the fact that an opinion is sharply divided is irrelevant.

Salazar v. Buono, which came down yesterday, illustrates a real problem that the Chief should work on — cases where the Court cannot produce a majority opinion at all.  That is a totally unsatisfactory result that drives attorneys, government officials, and lower court judges batty.  I wonder whether the Court should adopt a norm that if it cannot agree on a majority opinion the writ of certiorari should be dismissed as improvidently granted.  (Note that this is different from a five-person majority opinion where one member writes separately. In that case, you at least have a short at extracting an intelligible holding.)  There are instances (a case in the Court’s original jurisdiction, for example) where even a splintered decision is better than nothing, but usually that is not the case.  There’s nothing wrong with leaving the lower court opinion in place and taking up a similar issue in a subsequent case where a clear decision can be rendered.


Dissenting Without Opinion

It used to be a common practice for Supreme Court Justices to dissent without writing an opinion.  Today we would think that this was strange, and as far I can tell the change came around 1940 with the retirement of the “Four Horsemen” who opposed the New Deal.  Why was this norm for judicial behavior abandoned?

First, prior to 1925 the Court did not have discretion over its docket.  As a result, the Justices heard a lot more cases than they do now.  Furthermore, many of those cases involved federal common law (torts, contracts, etc.) that were relatively unimportant.  Under those conditions, people were probably more tolerant of a Justice who simply noted his position and saved the written opinions for important cases. Second, Justices in that era only had one clerk (or before that none).  Thus, if a member of the Court was elderly or ill there would be every reason to think that he could not write.  Today (though we don’t say so explicitly), there is a stronger expectation that such a Justice can still produce opinions.

Are there any other possible explanations?


Book Review: Friedman’s The Will of the People

Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (Farrar, Straus and Giroux, 2009) 624 p. $35.00

Barry Friedman’s The Will of the People, is a terrific account of the interplay between public opinion and the Supreme Court.  The heart of the argument focuses on the Supreme Court’s doctrinal about-face in response to Franklin Roosevelt’s court packing plan.  The standard explanation treats the Court’s doctrinal shift as an embarrassing anomaly.  Generations of constitutional law teachers have told their students that Supreme Court decision-making is driven by the law, not public pressure, except, as occurred in the 1930s, in highly unusual circumstances.  The Court, it is said, is designed to withstand the buffeting of popular winds.

In The Will of the People, however, the Court’s famous doctrinal shift in the 1930s is seen as the rule, not the exception.  The standard story told by constitutional law professors to their students is bunk as (p. 9) “[h]istory makes clear that the classic complaint about judicial review—that it interferes with the will of the people to govern themselves—is radically overstated.”  The Court changed course because it learned that it would not be permitted to (p. 4) “stray too far from what a majority of the people” want.  Rather than check majorities as the framers envisioned, the Court engages in a dialogue with the public over the meaning of the Constitution.

Of course, an account that argues that the Supreme Court is responsive to democratic currents raises empirical and theoretical issues.  The empirical question is why does the Court heed public opinion; the theoretical question is why do we need the Supreme Court if, like Congress, its job is to aggregate public demands.  The answer to both questions lies in the interplay between constitutional law and public backlash.  The Court fears public anger and eventually trims its sails if there is sufficient outcry.  The Court, moreover, channels citizen input differently than does Congress.  Congress responds to the immediate desires of the electorate whereas the Supreme Court listens to its long-term demands.  A greater degree of mobilization is required to influence the Court than is needed to influence Congress.  It takes a sustained wave of public anger to convince the Court to change course.  In short, the Court’s attenuated relationship to popular opinion makes constitutionalism possible.

The book defends this thesis by providing a masterful portrait of the interplay between doctrinal change and popular input throughout the course of American history.  In The Will of the People, the Court swims in the sea of public opinion, not the law.  The usual actors in political accounts of the Court—Presidents, Justices, and Senators—recede in the background as We the People move to the center stage.  Even those who disagree with the book’s thesis will find much of value in thinking about the relationship between ordinary citizens and the Court.  The Will of the People is an important corrective to constitutional law casebooks and should be on the shelf of every teacher of constitutional law.


Miguel Schor is a professor of law at Suffolk University Law School.  To read some of his scholarship, click here.


The U.S. Supreme Court and Privacy Law

I can’t help but note that there are quite a few cases on the U.S. Supreme Court calendar involving privacy law:

City of Ontario v. Quon

(Fourth Amendment, electronic communications of government employees)

(my thoughts are here)

NASA v. Nelson

(constitutional right to information privacy)

(my thoughts are here and here)

Snyder v. Phelps

(intentional infliction of emotional distress, intrusion upon seclusion)

(my thoughts are here and here)

Sadly, though, only in 1 of the 3 cases above do I think the privacy claim ought to prevail.  Regardless, these are exciting times to be a privacy law scholar.  But it is always an exciting time to be a privacy law scholar — so many interesting things going on.  If you’re not a privacy law scholar, you’re really missing out!

UPDATE: In the comments, Omer Tene points out another privacy case before the Court — Doe v. Reed, the case involving whether the state could compel disclosure of the identities of those supporting Proposition 8 (an anti-gay marriage proposition in California).  I have not studied this case in depth, but from what I know, my preliminary take is that the First Amendment bars the disclosure.


In Defense of Umpires

We’ve been treated of late to a fair amount of commentary on umpires and supreme court justices, most of it dismissive. Chief Justice Roberts’s remarks during his confirmation hearings about judges as umpires has been attacked in the pages of the New York Times by Geoffrey Stone, for example, as either naive or — more likely — dishonest. I’m not, however, convinced that the umpire analogy is the jurisprudential gaff that those among the con law chattering class have been making it out to be. Read More


Deference at Oral Argument

I’m reading Jeff Shesol’s new book on FDR’s Court-packing plan, and I learned something that I didn’t know. Through at least the 1930s, there was a tradition at the Court that when the Attorney General argued a case he would not be interrupted with questions from the bench.  I wonder how this practice got started and when it ended.  It’s amusing to think about that now — Eric Holder would get, what, 30 seconds of silence at most.