Tag Archives: Supreme Court

Ronald Dworkin on recent Supreme Court decisions Reply

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Ronald Dworkin has a two-part blog post at The New York Review of Books concerning the recent Supreme Court decisions Arizona Christian School Tuition Organization v. Winn et al and Arizona Free Enterprise Club PAC v. Bennett. (Links point to the blog posts, not the decisions.) 

In the second paragraph of the first post, he gives a wonderful and concise statement of law-as-integrity:

The popular assumption that justices can decide constitutional cases by just consulting the text of that document and the intentions of its eighteenth- and nineteenth-century authors, without relying on their own sense of justice, is simplistic and wrong. Many of the most important constitutional clauses—the First Amendment’s promise of “the freedom of speech,” for instance, its guarantee of “free exercise” of religion, and its prohibition of any religious “establishment”—are drafted in abstract language; justices must interpret those clauses by trying to find principles of political morality that explain and justify the text and the past history of its application. They will inevitably disagree about which principles best satisfy that test, and they will inevitably be influenced, in making that judgment, by their own sense of what a good constitution would provide.

But he criticizes the “conservative bloc” of the Roberts Court on these grounds:

But that does not mean that the justices are free to interpret the abstract clauses of the Constitution to match their own political convictions, whatever these are. In the last few years they have overruled a long series of recent and important precedent decisions and they have reversed several long-standing constitutional traditions. They have flatly prohibited even obviously sensible race-conscious social and educational policies, bolstered government’s support for religion, and progressively narrowed the scope of abortion rights. They have changed the American electoral system to make the election of Republican candidates more likely, for example by guaranteeing corporations a constitutional right to spend as much as they wish denouncing candidates they dislike. As I have argued, these various decisions cannot be justified by any set of principles that offer even a respectable account of our past constitutional history.

That’s what I love about Dworkin, and part of what makes him so much fun to teach: you can agree wholeheartedly with hsi formal jurisprudence but I disagree just as strongly with the way he fleshes it out substantively. (More on this, I hope, in future posts.)

Justice Kennedy on the blogosphere Reply

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From Josh Blackman’s blog (cleverly titled Josh Blackman’s Blog), we get Justice Anthony Kennedy’s comments on the legal blogosphere in his testimony before the Appropriations Committee:

We have seen since Justice Breyer and I have been on our Court, a quiet revolution because of IT, information technology. We have a website we run it ourselves. We get 59 million hits a month. There is a study I have seen, I am somewhat skeptical of, we are 12th or 13th of any government agency, 179,000 page hits a day.

I used to read Supreme Court cases over the summer. I would wait for months or years for law review articles. Now there are blogs. There are law professors in specialized areas, information technology, antitrust, that have blogs, that within weeks, days, even hours, they comment on our cases.

Our case law is now part of arguments that attorneys make to distirct and circuit judges within hours after we decide cases.

This has been very efficient. There has been a sea change how accessible our cases are. The system works. It is a quiet revolution. It makes our courts very efficient and very effective.

Make sure you also read Josh’s comments (and watch the video of Kennedy’s testimony) at his blog (Josh Blackman’s Blog, in case you forgot the name), especially regarding Kennedy being the first to use the world “blog” in an opinion.

Stanley Fish on Elena Kagan’s rhetorical style Reply

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In today’s New York Times, Stanley Fish comments on Justice Elena Kagan’s rhetorical style in her dissent in Arizona Christian School Tuition Organization v. Winn (as well as his views on the case itself and his deep admiration and appreciation for Justice Scalia). In  Fish’s opinion, Kagan displays

a style of argument that marks her as someone to reckon with, both inside and outside the Court. And that she does, not by attempting to match Scalia’s sentence-by-sentence pyrotechnics (see for example his scintillating and prophetic dissent in Lawrence v. Texas) but by dismantling the majority’s reasoning piece by piece until there is nothing left standing.

If there is a rhetorical gesture that marks her performance (as biting scorn marks Scalia’s), it is “Oh yeah?” — as in, I see you assert X, but here is evidence, often from your own mouths, that X is a bad or inapposite or silly argument. Her weapon of choice is not the hit-and-run example (that is Scalia’s forte), but the extended example that open up and fills the landscape. To illustrate her point that the majority’s distinction between direct and indirect funding “is one in search of a difference,” she asks us to “imagine that the Federal Government decides that it should pay hundreds of millions to insolvent banks” (imagine that!) but finds itself resisted by taxpayers who don’t want “their hard-earned money to reward irresponsible behavior.”

Suppose further that the government thought to disarm the resistance by allowing banks “to subtract the exact same amount from the tax bill they would otherwise have to pay to the U.S. Treasury.” Would the proposal, she asks, “calm the furor or would most taxpayers respond that a subsidy is a subsidy (or a bailout is a bailout ), whether accomplished by one means or the other?” The question answers itself, but she answers it — “Surely the latter” — and she adds “we would think the less of our countrymen if they failed to see through this cynical proposal.” She doesn’t accuse her fellow justices of endorsing a cynical proposal; she just leaves it there.

Next she takes advantage of, without explicitly naming, her own religious identity: “Suppose a state desires to reward Jews — by say, $500 per year — for their religious devotion.” Would it matter to non-Jewish taxpayers “if the state allows Jews to claim the aid on their tax returns, in lieu of receiving an annual stipend” directly? And if Jews are too small a sample, how about subsidizing the purchase by Catholics of crucifixes? The state “could purchase the religious symbols in bulk and distribute them … or it could mail a reimbursement check to any individual who buys her own and submits a receipt … or it could authorize that person to claim a tax credit equal to the price she paid.”

“Now really,” she comments with only a bit of tongue in cheek, “do taxpayers have less reason to complain if the State selects the last of these three options?” (Notice that the question is asked in the negative and thus made at once softer and harder.) This time she doesn’t answer the question, but only says quietly (and devastatingly), “The Court today says they do.”

Nothing flashy here. Just a steady unrolling of point after obvious point in a relatively tranquil and moderate prose punctuated by an occasional flaring of amiable wit — “not really,” “what ordinary people would appreciate the Court’s case law also recognizes.” (Sometimes even the Supreme Court rises to the level of common sense.) If I am right, what we are seeing here is the emergence of a powerfully understated style of argument, inexorable without being aggressive, comprehensive without claiming to be so, regnant even when it is on the losing side. I look forward to more of the same.

Losing their Religion, or The Ironic Reader of Judicial Religious Temperment 1

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How should our Supreme Court justices embrace their religious preferences? In another stunning blog post on CNN Stephen Prothero confronts the tendency to think that justices of the Supreme Court lose all personal touch with the world in which they have lived — a world that largely includes religious temperaments and experiences. (We have blogged about Stephen’s other posts here). Stephen writes:

If Supreme Court justices were impersonal computers, taking in laws and facts and spitting out impartial decisions, then we would not need religious diversity on the court. We wouldn’t need racial or gender or regional diversity either. Nine old white Catholic men would work just fine. Or for that matter nine young African-American Muslim women. But the world is what it is. And it is in the real world, not the world of should and supposed to, that the flawed and imperfect human beings we call justices operate.
So here is the question I would put to my critics: Are human beings creatures of objective thought, able to click their fingers and magically set aside their biases, passions and “self-love”? Or are we creatures of subjective passions whose interests should be subject to the sorts of checks and balances that Madison so vigorously defended and a diversity of experience offers?
Judges do make decisions based on experience. Holmes’s haiku laden phrase “The Life of the law has not been logic; it has been experience,” begs the question of whose experience (did not know that this quote maintained a 5-7-5 structure did ye?) If the experience of the law is the collected experience of us all, then perhaps the law should be agnostic towards the individual faith. But as we know, the law’s experience has excluded as much as its included, whether by race, wealth, gender, property or sexual orientation, the law’s experience has not been all of our experiences. Why then should we expect the experiences of the whole, to be excluded because we perceive that the whole has been adequately represented. After-all, should we treat our judges as potted plants? See i.e. Richard Posner, What am I? A Potted Plant?, The New Republic (1987).

These tendencies to down play the individual experience in favor of the collected experience is revealed perhaps most acutely in one’s religion. We can see that in the exchanges during oral arguments with Antonin Scalia and Anthony Kennedy, during the Salazar v. Buono hearing. (Salazar v Buono involved the maintenance of a cross in the Mojave National Preserve erected by the Veterans of Foreign Wars after World War I). Both of Scalia and Kennedy are devoutly catholic. At one point, when it was suggested that a Jewish star would more appropriately honor the Jewish soldiers that died in World War I, Scalia responded
“It’s [the cross is] erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the—the cross is the—is the most common symbol of—of—of the resting place of the dead, and it doesn’t seem to me—what would you have them erect? A cross—some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?”

Later in the same oral argument, Justice Kennedy said:

Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message . . . Time also has played its role. The cross had stood on Sunrise rock for nearly seven decades before the statute was enacted. By then, the cross and the cause it commemorated had become entwined in the public consciousness . . . Congress ultimately designated the cross as a national memorial, ranking it among those monuments honoring the noble sacrifices that constitute our national heritage . . . a symbol that . . . has complex meaning beyond the expression of religious views . . . one Latin cross in the desert evokes far more than religion.

I want to point out that both Scalia and Kennedy seem to neutralize their religious sentiments in favor of a secularized view of the cross. Let me say, they are right. The cross serves a secular function in our country, depicting our shared national myth of a Western Christian world. But here is the ultimate question. Who actually believes the justices when they down play their religion. Scalia, more so than Kennedy created substantial commentary largely because it was so shocking to hear him, of all justices, secularize a symbol of his own religion. These justices cause us to consider whether their words are to be read through the lens of an ironic reader. Just as we might question the double meaning of Billy Budd’s “farewell to the Rights of Man” upon being conscripted aboard an English vessel, we might also question the ironic tone of Scalia and Kennedy’s remarks. Scalia and Kennedy want us to believe that they can take off their religion like a coat and commence judging, saying “farewell ye vestments of faith.” Like Prothero, I seriously doubt that they can. Like Billy Budd, I am not sure we should read them literally even if they think that they have succeeded.