The Faculty Lounge

Justice Thomas and the New Senate

Yesterday’s midterm election results shifted the U.S. Senate’s ideological center to the right. Senate Republicans began the day clinging to a narrow 51-49 majority, but they have emerged from the midterms with a strong 53-seat majority. Consequently, President Trump no longer needs the support of Sen. Susan Collins or Sen. Lisa Murkowski—the two most moderate members of the Republican caucus—to secure the confirmation of his federal judicial appointments.

It will be interesting to see whether the expanded conservative majority in the Senate prompts Clarence Thomas to retire next summer after almost three decades on the Supreme Court. As measured by Martin-Quinn scores, Justice Thomas is by far the Court’s most conservative member. There is no doubt he would like to see an equally conservative justice succeed him. The GOP Senate victories give Thomas cause to at least consider the idea of stepping down before the 2020 presidential election, timing calculated to make certain a highly conservative justice could be confirmed to replace him. 

To be sure, there are compelling reasons why Thomas might choose to remain on the Court for years to come. Foremost among them is the fact that he loves his job. During a Federalist Society event in 2013, he observed:

“I never thought that I would treasure doing my job, and I’ve reached that point. Even the most boring cases to others are fascinating to me. . . . I’ve gotten to this point where it’s like the priesthood. This is what I’m called to do.”

Moreover, by Supreme Court standards, Justice Thomas is not even close to retirement age. The average retirement age for modern justices is 83 and rising. Thomas, in contrast, is only 70. His former colleague John Paul Stevens served until age 90 and his current colleague Ruth Bader Ginsburg is 85. As long as his health holds up, Thomas could still be an active justice 15 or even 20 years from now.

But if Thomas is not interested in serving into his 80s, then he has a decision to make. In 2020, Republicans will be defending 22 Senate seats but Democrats only 12; Republicans will also be defending more seats in 2022. There is no guarantee that the ideological make-up of the Senate in the 2020s will be as favorable to conservatives as the 2019 session. Likewise, in this era of razor-thin election margins, it is entirely possible Democrats will recapture the presidency at some point in the 2020s.

It is at least conceivable, therefore, that Justice Thomas may choose to retire a bit earlier than one would otherwise expect in order to ensure a like-minded conservative holds his seat for many decades to come. If Thomas does decide to step down next summer, Donald Trump will become the first president in 30 years to make 3 Supreme Court appointments. 

The Schoolhouse Gate

Last fall I heard Justin Driver give a superb lecture at Drake Law School on free speech in the public schools. The lecture was based on a book he was writing about constitutional law and public education. The book is now out and it is called "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind." It was published last month by Pantheon Books.

Yesterday SCOTUSblog posted an interview with Professor Driver about his new book. As he explains in the interview, the book "argues that the public school has served as the single most significant site of constitutional interpretation within the nation’s history." He contends that "when we disagree over what the Constitution means in public schools, we engage in an argument that is fundamentally about what sort of nation we want the United States to be."

One part of the interview that particularly caught my eye is Driver's revisionist account of Brown v. Board of Education. Here is an excerpt from the interview:

"Many observers have asserted that the Supreme Court’s unanimity was essential in Brown because a dissenting opinion would have stoked southern opposition. As subsequent events would demonstrate, however, southerners did not need any encouragement from the Supreme Court to resist Brown in a maximal form. In 1956, for example, 19 U.S. senators and approximately 80 congressmen joined forces to issue a document called the Southern Manifesto denouncing Brown as wrongly decided. Anti-Brown forces eventually coalesced around a rallying cry holding that they would accept racial integration exactly 'never!' Importantly, it seems quite plausible that Chief Justice Earl Warren, had he not felt compelled to placate Justice Stanley Reed — the last holdout for Jim Crow — could have written a more muscular opinion in Brown. Whatever modest gain Warren realized from Brown’s unanimity in the form of squelched dissent, in other words, could have been counterbalanced — and perhaps even outweighed — by the attendant loss of watering down the opinion’s condemnation of Jim Crow. Thus, rather than continuing to champion Warren’s behind-the-scenes maneuvering in Brown uncritically, one might more appropriately view those actions as well-intentioned but ultimately misguided." 

I have always admired Chief Justice Warren's skill in securing a unanimous opinion in Brown, but Driver's counterargument is compelling. His book looks absolutely great.  

Here is a link to the full SCOTUSblog interview with Professor Driver. And here is a link to the book's Amazon page.

The Millions Spent for Judge Kavanaugh

In Roll Call, Kate Ackley has an interesting piece on the millions spent in favor of Brett Kavanaugh’s confirmation to the Supreme Court. Here’s an excerpt:

“Supreme Court nominee Brett Kavanaugh denounced the ‘millions of dollars in money from outside left-wing opposition groups’ during his testimony Thursday about sexual assault allegations, but he didn’t mention the millions spent by groups backing him.

The Judicial Crisis Network, the leading conservative nonprofit that is running advertisements in support of Kavanaugh’s confirmation, has spent about $12 million on the effort, according to sources familiar with the group — already more than the $10 million it spent in last year’s confirmation of Justice Neil Gorsuch.”

In addition, the Judicial Crisis Network spent $7 million in a successful effort to block Merrick Garland’s Supreme Court nomination in 2016. 

Million-dollar campaigns have also become a routine feature of the selection process at the state supreme court level.

A study by the Brennan Center for Justice found that outside groups spent $27.8 million during the 2015-16 state supreme court election cycle. Consequently, the authors note, “As of January 2017, one-third of all elected justices sitting on the bench had run in at least one $1 million-plus election. These figures highlight that across the country, politicized state supreme court elections are no longer the exception, but the rule.”

One of the reforms the Brennan Center report advocates is to:

“replace elections with a publicly-accountable appointment process, where a nominating commission with diverse membership recruits and vets judicial candidates, and then presents a slate from which the governor can choose. Such a system, some version of which is already used in 22 states, ensures that democratically accountable actors retain a role in choosing judges, while reducing special interest pressures and the risk of cronyism.” 

I wholeheartedly support replacing judicial elections with some form of a publicly-accountable selection and confirmation process. It is hard enough to keep politics out of the judiciary without having judges’ names appear on ballots at polling places. 

But the Kavanaugh confirmation fight reminds us that even when judges are appointed and not elected, the role of money in shaping public opinion has become an inescapable feature of the American political landscape.     

Chief Justice Roberts and the post-Kennedy SCOTUS

Mark Joseph Stern has an interesting piece on Slate about a death penalty case that hints at the new ecosystem of the post-Kennedy Supreme Court. The case is Madison v. Alabama and the justices heard oral argument yesterday. The issue before the Court is whether the Eighth Amendment permits the state of Alabama to execute Vernon Madison, a 68-year-old, legally-blind inmate whose vascular dementia prevents him from remembering his 1985 murder of a Mobile police officer.

Tribe on Kavanaugh and Judicial Recusal

In a New York Times op-ed, “All the Ways a Justice Kavanaugh Would Have to Recuse Himself,” Laurence Tribe asserts that statements Brett Kavanaugh made during his nomination hearing should disqualify him from hearing cases involving left-of-center litigants.

Professor Tribe focuses in particular on this passage in Judge Kavanaugh’s opening statement:

“Since my nomination in July, there’s been a frenzy on the left to come up with something, anything to block my confirmation. . . . This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”

Accordingly, Tribe argues that canons of judicial impartiality demand that Kavanaugh recuse himself from any future case involving Democrats or liberals. Here’s the heart of Tribe’s argument:

An Ever More Polarized Nation

The Senate Judiciary Committee hearing riveted the nation last week. Over 20 million people watched it on television, and more than 30 million people viewed it online. What makes those numbers even more remarkable is the fact that the Judiciary Committee held the hearing on a weekday when most Americans were at work. Yet 50 million people still found time to follow it. By way of comparison, NBC’s Sunday Night Football—which year in and year out is the most watched weekly television program—averages 18.5 million viewers. When a midweek Senate hearing attracts more viewers than the NFL, you know you are witnessing history unfold before your eyes.

The Kavanaugh Nomination Controversy

The past few days have given rise to a Supreme Court battle like nothing the country has experienced since the Anita Hill-Clarence Thomas hearings in 1991.

Only a week ago Brett Kavanaugh’s confirmation seemed virtually certain. But then on Sunday the Washington Post published Dr. Christine Blasey Ford’s allegation that Kavanaugh sexually assaulted her 36 years ago during a high school party. Kavanaugh’s adamant denial of the accusation has left us with an extraordinary public confrontation between the professor and the judge.   

The situation is so fluid no one knows how it will end. Clearly Republicans face significant risks, especially with a momentous midterm election just 45 days away. But even if the Kavanaugh nomination implodes and leads to political disaster for the GOP on November 6, Senate Republicans may still have one more card to play.

A Vapid and Hollow Charade

In a 1995 book review, an up-and-coming University of Chicago law professor criticized Supreme Court nomination hearings as a “vapid and hollow charade.” The professor’s name was Elena Kagan. When Barack Obama nominated her to the Supreme Court in 2010, Kagan approached the Senate hearings in a highly respectful manner, notwithstanding her previous sharp criticism of them.

Nevertheless, Kagan’s characterization of the nomination hearings as “vapid and hollow” remains accurate, as demonstrated last week by the Brett Kavanaugh hearings. During his testimony, Judge Kavanaugh carefully avoided saying anything interesting, revealing, or surprising. We learned nothing of value about Judge Kavanaugh beyond what we already knew.

But the opaque nature of the Kavanaugh hearings does not represent much of a departure from past hearings, nor does it mean we lack a reasonably clear sense of Judge Kavanaugh’s judicial philosophy. As a D.C. Circuit judge, he has heard more than 1,500 cases. Accordingly, he has articulated his views to a far greater extent than Elena Kagan ever did prior to joining the Supreme Court. Before criticizing the Kavanaugh hearings, therefore, a few historical points are worth emphasizing. 

Limitations on Audit by the IRS: Taxpayer Can Go to Bathroom Alone

When I teach Federal Income Tax, I always describe to my students the broad powers of the IRS to request and inspect records during an audit. It is not uncommon for the IRS to meet with the taxpayer in the taxpayer's home or on the taxpayer's business premises.  Although the IRS typically contacts a taxpayer by mail first, surprise in-person visits may happen, as explained by the IRS here, in cases of "an overdue tax bill, to secure a delinquent tax return or a delinquent employment tax payment, or to tour a business as part of an audit or during criminal investigations." I half-jokingly tell my students not to be surprised if the IRS wants to look in the taxpayer's dresser drawers. 

Until today, though, I've never heard of an IRS agent following a taxpayer to the bathroom and monitoring the taxpayer's ... um... use of the facilities. Today in Ioane v. Hodges (here), the Ninth Circuit ruled that an IRS agent cannot invoke a qualified immunity defense in a case in which the agent allegedly "violated plaintiff’s Fourth Amendment right to bodily privacy when, during the lawful execution of a search warrant at plaintiff’s home, the agent escorted plaintiff to the bathroom and monitored her while she relieved herself."

I don't see a circuit split on this one, and it's doubtful the IRS will appeal.  I predict that SCOTUS will not be taking on this particular aspect of the jurisprudence of toilets any time soon.

 

Image source: Science, Industry and Business Library: General Collection , The New York Public Library. "Visiting-inspectors building ; Toilet for foremen ; North gatehouse ; A shop toilet ; Changehouse locker-room." New York Public Library Digital Collections.

Cardozo and the Death of the Common Law

Last month marked the 80th anniversary of the death of Benjamin Cardozo, a Supreme Court justice whose name still resonates in courtrooms and law schools across the country. As Andrew Kaufman observed in his great biography of the late justice, Cardozo stands as “one of the most distinguished judges in the history of American law.”

Cardozo cases, such as Palsgraf v. Long Island Railroad and People v. Zackowitz, remain staples of major casebooks. His influence on constitutional law can still be felt today as well. Cardozo’s majority opinions in Steward Machine Co. v. Davis and Helvering v. Davis upheld the constitutionality of the Social Security Act, opening a new era of federal jurisprudence.

But a disconnect exists between Cardozo’s short tenure on the bench and his legacy’s extraordinary reach. Remarkably, he only spent six years on the U.S. Supreme Court, a fraction of the time of major justices such as John Marshall (34 years), Stephen Field (34 years), Oliver Wendell Holmes, Jr. (29 years), Hugo Black (34 years), William Brennan (34 years), and Antonin Scalia (30 years).

So why is Cardozo still so prominent in American law all these years later?

Nixon on US v Nixon

Over the weekend we learned that Brett Kavanaugh once expressed doubts about the wisdom of the Supreme Court’s ruling in United States v. Nixon, the famous Watergate tapes case. His comments have generated controversy because the case stands as a hallowed landmark in the history of American law. In the 1974 case, the justices ruled 8-0 that the president’s “generalized assertion of [executive] privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” 

In fairness to Judge Kavanaugh, his critical comments about the Nixon decision came almost 20 years ago. More recently he has discussed the ruling in favorable terms. In any case, the Senate confirmation hearing will give him an opportunity to clarify his position on United States v. Nixon and the crucial issue of executive privilege.

In the meantime, it’s interesting to reflect on Richard Nixon’s own reaction to the momentous Supreme Court decision that ended his presidency. Nixon learned of the Court’s ruling on the morning of July 24, 1974, when Alexander Haig, his chief of staff, called to let him know the bad news.

According to President Nixon’s autobiography, The Memoirs of Richard Nixon, the most important feature of the ruling was that it was 8-0. After learning that the Court had ruled against him, the first question Nixon asked of Haig was how many justices ruled with the majority.

“Unanimous,” Haig responded. “There’s no air in it at all.”

“None at all?” Nixon asked.

“It’s tight as a drum,” Haig explained.

A few minutes later Nixon and Haig met with James St. Clair, the president’s attorney. The three men discussed how to proceed in the wake of their devastating Supreme Court defeat. They knew that the release of the audio tapes—which recorded the president’s direct personal involvement in obstruction of justice—spelled Nixon’s political doom. Indeed, he would resign on August 9, just over two weeks after United States v. Nixon.

Ever since then, the case has been rightfully celebrated for vindicating the rule of law. A few hours after the Court announced its Nixon ruling, Watergate Special Prosecutor Leon Jaworski told the journalist Theodore White, “What happened this morning proved what we teach in schools, it proved what we teach in colleges, it proved everything we’ve been trying to get across—that no man is above the law.” 

But it is worth noting how close Nixon came to defying the Supreme Court ruling. As he explained in his autobiography, after the Court’s decision he seriously considered forcing a constitutional crisis by refusing to hand over the tapes. Nixon had an absolutist view of presidential power. He thus viewed the decision itself as unconstitutional, and lamented that the “presidency itself was a casualty of this ruling.” He would later tell the British journalist David Frost that “when the president does it, that means it is not illegal.”

Ultimately, however, the unanimous nature of the Supreme Court’s decision forced Nixon’s surrender. He could not portray the Court’s ruling as partisan or ideological in nature when the justices acted in unison. As Nixon explained in his autobiography:

“The problem was not just that we had lost but that we had lost so decisively. We had counted on some air in the Court’s ruling, at least some provision for exempting national security materials. We had counted on at least one dissent. For a few minutes we discussed the option of ‘abiding’ by the decision in the Jeffersonian tradition. But after checking with some of our strongest supporters in Washington, we concluded that full compliance was the only option.” 

It’s worth pondering what would happen if a similar case reached the justices today. If faced with a momentous case testing the limits of presidential power, could the Roberts Court find common ground among the justices as the Burger Court did 44 years ago?

No one knows the answer to that question. But it certainly makes Judge Kavanaugh’s views on United States v Nixon worth exploring in great detail during his Senate confirmation hearing. 

A Window into Brett Kavanaugh’s Judicial Philosophy

Last night President Trump announced his nomination of Brett Kavanaugh to the U.S. Supreme Court. Judge Kavanaugh has served on the D.C. Circuit Court of Appeals since 2006, which means his long paper trail of judicial opinions will be closely scrutinized during his Senate confirmation hearings.

By any definition, Judge Kavanaugh is a conservative judge. His record on the D.C. Circuit leaves no reason to doubt that he will be more conservative than Anthony Kennedy, the justice he will replace. But the critical question is how much more conservative? Is Kavanaugh a traditional conservative like Chief Justice John Roberts, or will his voting record place him as far to the right as Neil Gorsuch and Samuel Alito? Might he even be as ultraconservative as Clarence Thomas?

Justice Scalia on Arbitrary Sports Rules

On Sunday Russia defeated Spain in the World Cup, pulling off one of the biggest upsets in soccer history. After 90 minutes of regulation play and 30 minutes of extra time, with the teams deadlocked 1-1, the game came down to a penalty kick tiebreaker. Five Russian and five Spanish players took turns trying to kick the ball past the goalies from 12 yards out. By the time the shootout ended, the Russians managed to score 4 goals, one more than the Spanish squad. When Russia’s goalie blocked Spain’s fifth and final penalty kick, all of Russia erupted in celebration.

The match’s outcome revived a long-standing debate over the fact that FIFA, the governing body of international soccer, breaks ties (or “draws,” in the parlance of international football) through penalty kick shootouts. The tiebreaker format strikes many as inconsistent with the team-oriented nature of soccer, particularly because the shootout involves an individual contest between a kicker and a goalie. Consequently, soccer purists view penalty shootouts as an arbitrary way to end a match, especially one as important as a World Cup elimination game.

But are the critics right that soccer shootouts are arbitrary? The late Justice Antonin Scalia would likely have said that the critics have missed the larger issue. He believed that all sports rules were arbitrary by their very nature, a point he made in an interesting Supreme Court case.

Rove on Supreme Court interviews

CNN is reporting that President Trump will select his nominee to the Supreme Court by July 9. Accordingly, over the course of the next 10 days, a handful of candidates will undergo the enormously stressful experience of high-stakes White House interviews.

In his autobiography, Courage and Consequence: My Life as a Conservative in the Fight, former presidential adviser Karl Rove revealed the confidential interview process that led to the 2005 nominations of John Roberts and Samuel Alito. Rove’s book provides a unique and valuable perspective into how the Bush administration approached the selection process. I suspect the Trump White House’s approach will be quite similar.

A Fascinating Interview of Justice Sotomayor

Justice Sonia Sotomayor’s blistering dissent in Trump v. Hawaii has generated a tremendous amount of attention, criticism and applause. Much has been made of the fact that she ended her opinion with “I dissent” instead of following the normal practice of closing with the words “I respectfully dissent.”

But judicial opinions only give us a limited glimpse into a justice’s personality. Three weeks ago Melissa Murray interviewed Justice Sotomayor at the American Constitution Society’s national convention. The interview is engaging, informal, and quite interesting. At one point Sotomayor walked around the room (a friendly audience filled with many former Sotomayor clerks) shaking hands and giving hugs like Oprah Winfrey or Phil Donahue, all while answering Prof. Murray’s questions. 

Throughout the interview Justice Sotomayor offered glimpses into the Supreme Court’s internal dynamics. For example, she revealed that the justices needed time to get used to Neil Gorsuch’s sense of humor, noting that “it wasn’t a humor we were accustomed to” but his jokes “fall less flat now.” She pointed out that an important 2017 Virginia Law Review article by Tonja Jacobi and Dylan Schweers has had a significant impact on how Chief Justice Roberts conducts oral argument (the article is “Justice, Interrupted: The Effect of Gender, Ideology and Seniority at Supreme Court Oral Arguments” available on SSRN here). Sotomayor also explained why she didn’t clerk for a judge after law school, a decision that she later came to regret (although I think it’s fair to say that everything worked out well in the end). 

The whole interview is available on the CSPAN website here. 

Trump’s Supreme Court List

In a bombshell announcement, Justice Anthony Kennedy revealed this afternoon that he is retiring from the United States Supreme Court. The Court’s next term begins on Monday, October 1, which means that President Trump will need to name a replacement very quickly. In a statement today, Trump said that he would choose the nominee from a list of 25 candidates previously identified by the White House. As he explained, “There are certain names that are just outstanding, names that you already know, to be honest with you. But they will come from the list of 25 people.”

According to the White House website, this is the list of 25 candidates that President Trump will consider for replacing Justice Kennedy:

Justice Kennedy’s Strange Concurrence in Trump v. Hawaii

Just as a quick follow up to Jeff Schmitt’s post below, it is worth pointing out Justice Anthony Kennedy’s very short but extremely unusual concurring opinion in Trump v. Hawaii. I don’t think I have ever seen anything quite like it. Whatever Justice Kennedy hoped to achieve with the concurrence, it seems destined to go over like a lead balloon with both supporters and critics of the Supreme Court’s ruling.  

In his two-page concurrence, Kennedy joined in full the majority opinion upholding the Trump Administration’s travel ban, but the justice then went on to use the bulk of his concurrence to chastise implicitly President Trump for his anti-Muslim statements.

How the Gill Decision Raised the Stakes of the 2018 Elections

The outcome of the Supreme Court’s two major gerrymandering cases—Gill v. Whitford and Benisek v. Lamone—could hardly have been more anticlimactic from a legal perspective, and yet the significant political impact of the Court’s decision may be felt for years to come.

Like many others, I had hoped that the justices—particularly the swing justice, Anthony Kennedy—would use the unique opportunity before the Court to articulate a judicially-manageable standard for assessing the constitutionality of redistricting plans.

But that did not happen. Instead, the Supreme Court dodged the merits of both cases, invoking Article III standing grounds to remand the Wisconsin case (Gill) and procedural grounds to remand the Maryland case (Benisek).

Although Monday’s outcome might appear innocuous, a closer look suggests that opponents of partisan redistricting suffered a serious defeat. Accordingly, with gerrymandering still on the table as a legally permissible option for the 2021 redistricting process, the state elections in 2018 and 2020 are more important than ever. They will likely determine the contours of America’s legislative and congressional districts until the 2030s.

A Few Thoughts about the Husted Case

I just got back to the United States last night from the Netherlands, where I gave a paper at a fascinating international law conference (the topic of the conference was “Contingency in the Course of International Law”) at the University of Amsterdam. I will write about the conference, which I really enjoyed, in more detail later this week.

But in the meantime I have a few observations to make about the U.S. Supreme Court’s controversial ruling in Husted v. A. Philip Randolph Institute, which the Court handed down last week while I was in Europe. In a 5-4 decision, the Court’s conservative majority upheld a key provision in Ohio’s voter registration statute, which the plaintiffs allege has resulted in the purging of thousands of eligible voters from the state’s voting rolls in violation of the National Voter Registration Act of 1993 (as amended by the Help America Vote Act of 2002).

Even from my vantage point 3,000 miles away in Europe, it was clear the Husted decision was extremely unpopular with the mainstream media, the Democratic Party, and many voting rights advocates, who immediately accused the conservative justices of aiding and abetting voter disenfranchisement. For example, in an op-ed for The Hill newspaper, Democratic Congressman Tim Ryan wrote, “With this decision, Ohio Secretary of State John Husted and states across the country were given the all clear to silence American voters.” 

Although I agree with the critics that the Ohio registration statute is not good public policy, Justice Alito’s ruling was nevertheless quite reasonable in light of the NVRA’s statutory language. For better or worse, the controlling federal law gave the Supreme Court no choice but to uphold the Ohio statute. 

A few points strike me as particularly important about the ruling.

Antonin Scalia and the Meaning of “Bear Arms”

Justice Antonin Scalia died two years ago, but his judicial legacy continues to generate discussion and debate. During his three decades on the Supreme Court, Scalia made “originalism” a household term, at least among lawyers, judges, and law professors. Nowhere was that more true than with regard to the Second Amendment, as Scalia’s originalist interpretation of the phrase “the right of the people to keep and bear arms” charted a new course in Supreme Court jurisprudence.

During a CSPAN interview in 2012, Scalia explained his originalist approach to constitutional interpretation, which “is that the text ought to be given the meaning it had when it was adopted; when it was enacted or when it was ratified in the case of the Constitution.” Historical research thus played a vital role in Scalia’s jurisprudence. As he explained in a speech at the University of Virginia, “I deny the premise that law has nothing to do with historical inquiry. Historical inquiry has nothing to do with the law only if the original meaning is irrelevant.”

But did Scalia get the original history of the Second Amendment right?