The Faculty Lounge

Bi+ Visibility Day and Marjorie Rowland

In honor of today being Celebrate Bisexuality Day (aka Bi+ Visibility Day or Bi Visibility Day), I thought I would post about bisexual rights pioneer Marjorie Rowland, who sued way back in 1975 when she was suspended and then faced nonrenewal of of her contract as a school guidance counselor because she had acknoweledged her bisexuality to a school secretary. Although she first had to appeal dismissal of her case to the Sixth Circuit, she ultimately won a jury verdict based on her equal protection and First Amendment claims, only to have it cursorily reversed by the Sixth Circuit. The Supreme Court denied review, over a powerful dissent by Justice Brennan, and Ms. Rowland, who had enrolled in and graduated from law school during the pendency of the case, was left to deal with the considerable fall-out from the case, including an apparently retaliatory charge of welfare fraud and an initial denial of her moral character application to the Arizona Bar. Ms. Rowland, however, persevered and ultimately had a successful family law and bankruptcy practice in Tucson for decades. 

My article about the case, forthcoming in Harvard Journal of Law and Gender, brings to light little-known facts gleaned from the trial transcript, explores the flaws in the Sixth Circuit opinion, and also argues that part of the reason that Ms. Rowland's case, Rowland v. Mad River Local School District, did not receive the attention it deserved in scholarship and case law was likely bisexual erasure. The article looks at areas where bisexual erasure continues to be prevalent, including the relatively scant coverage of bisexuality in Law & Sexuality textbooks, and briefly touches on how far we have come--and in some areas, how little progress has been made--since Ms. Rowland brought her case. Remarkably (or perhaps not at all remarkably, given the times we're in), a very similar case brought by a Kentucky choral teacher who was fired based on disclosing his bisexuality on his Instagram account is pending today.  

Happy Celebrate Bisexuality Day!

CFP for Hybrid St. Thomas Symposium on Constitutionalism--Proposals due 9/15

JLPP Fall Symposium

Constitutionalism

November 18, 2022 (hybrid event, speakers are welcome to participate in-person or by Zoom)

University of St. Thomas School of Law

                        Constitutionalism is the idea that government should be limited and that a sphere of autonomy should be open to individuals to pursue their own interests. There is a paradox embedded in the idea – and that is that government voluntarily keeps its powers within carefully circumscribed limited even if it possesses a monopoly of coercive force.

                        Paradoxical as it seems, however, the idea of constitutionalism is a sturdy one. Some have traced its roots to the conciliarist movement of the fourteenth and fifteenth centuries, while others to John Locke and other British thinkers.

                        Whatever its precise origins, constitutionalism as an organizing principle has withstood numerous challengers. In its early days, its chief competitors were theories of absolute monarchy; then totalitarianism; more recently still authoritarianism.

                        Constitutionalism, however, is not an idea without its own flaws. One can rightly ask, how can a system of constitutional government call itself restrained when it permitted slavery to flourish.

                        Constitutionalism, however, remains a fundamental characteristic of the American project. It is a cornerstone of American claims to be a democracy and a source of American legitimacy. The same holds true for many of the other nations of the world. Like the United States, most nations have adopted constitutions and strive to pattern their conduct according to the rules set forth in these founding charters.

                        This Call for Papers welcomes contributions on any aspect of constitutionalism. Topics include:

1. The history of constitutional thought.
2. Philosophical foundations of constitutionalism
3. Congress and constitutional self-restraint
4. The Supreme Court and constitutional self-restraint
5. Constitutions and their place in the international order
6. Comparative constitutionalism

Please submit proposals of 250 to 500 words to Professor Charles J. Reid, Jr., ([email protected] ) by September 15, 2022.

Successful submissions will be published in our Journal of Law and Public Policy. Successful submissions can expect a modest honorarium.

Miranda Warnings Date Back to 1748

I filed this brief of Historians of Criminal Procedure in Vega v. Tekoh this week that shows Miranda warnings date back to 1748.  (Thanks to Steve Lubet for asking me to post this.  Steve is no stranger to discovering fascinating history of the warnings -- Gov. Wise gave them to John Brown in 1860, Lubet, 52 Ala. L. Rev. 425 (2001).)  A true pleasure to work with Mark Godsey (Cincinnati), Tim Hitchcock (U of Sussex and a co-curator of the Old Bailey Session Papers), Tracey Maclin (BU), Robert Shoemaker (U of Sheffield and co-curator of the Old Bailey Session Papers), Simon Stern (Toronto), and George Thomas (Rutgers).   There were five examples we found that pre-dated the Bill of Rights -- research in the Old Bailey Papers is not easy.   So I want to particularly recognize Tim Hitchcock who located the 1748 case and my research assistant, Nicole Singleton (2L Duquesne), who found two of the pre-Framing cases.  

https://www.supremecourt.gov/DocketPDF/21/21-499/220472/20220406170837528_Tekoh%20final%20brief%2042283%20pdf%20Oliver%20--%20filed.pdf

Thoughts About the Biden Shortlist from One of the Women On It

While we wait to hear who President Biden will select in fulfillment of his promise to nominate the nation's first Black female justice, the words from one of the women reportedly on his shortlist are especially timely. About a year ago, my co-author Hannah Brenner Johnson and I invited NYU Law professor Melissa Murray to author a new foreword to the paperback edition of our book Shortlisted: Women in the Shadows of the Supreme Court, which hit the shelves last week. Here's an excerpt:

As I think back to February 25, 2020, when then-candidate Biden made his pledge to nominate a Black woman, the prospect of seeing someone like me on the Court was thrilling—something I could show my daughter as evidence of social change and the possibility of increased opportunities for the young women of her generation. Today, I am more sanguine about the prospect of representation. In my lifetime, I have seen gender representation on the Court triple. And yet, as I write this, reproductive rights are hanging by a thread, voting rights are more precarious than ever, the labor movement has been hobbled, and the courthouse doors are closing for civil rights plaintiffs. And the common denominator in all of these developments has been the Court itself.

As I consider these developments, I can’t help but ask, does this Court represent me and my interests? Does it serve the interests of a multiracial democracy? Is it enough for the Court to look (somewhat) like America, if, in fact, its work makes the promise of America elusive for so many?

Shortlisted does not answer these questions—nor should it. Instead, Shortlisted lays the foundation for a difficult—but urgently necessary—conversation. One in which we must ask ourselves whether representation matters. And if it does matter, how do we ensure that representation is substantive, as opposed to merely aesthetic? How do we ensure that our institutions not only reflect the diversity of our country but actively work to protect it?

It is a difficult conversation—both to broach and to sustain. But as Shortlisted suggests, it is a conversation worth having. Again and again and again.

—Melissa Murray, Frederick I. and Grace Stokes Professor of Law, New York University School of Law

Murray's full piece can be downloaded here. My past Faculty Lounge posts about Shortlisted can be found here and here.

James Madison and Citizens United

I have posted to SSRN my new article, which is titled "James Madison, Citizens United, and the Constitutional Problem of Corruption." The American University Law Review is publishing it this spring as part of their annual symposium issue. Here is the abstract:

One of the most controversial decisions in the modern history of the Supreme Court is Citizens United v. Federal Election Commission. In a 5-4 ruling, the Supreme Court struck down the ban on corporate independent expenditures. The majority defined corruption in narrow terms and held that quid pro quo corruption was the only constitutionally permissible basis for campaign finance regulation. The decision set off a storm of outrage. President Obama even took the remarkable step of condemning the ruling during his State of the Union Address. Recent polls show that the public still overwhelmingly opposes the majority’s ruling in Citizens United.

On the tenth anniversary of Citizens United, this Article puts the constitutional problem of corruption in historical context by examining the political career of James Madison. The Citizens United case turned on the First Amendment’s freedom of speech clause. Madison wrote the First Amendment while he served in Congress. He also played a key role in drafting the Constitution and in authoring the Federalist Papers, which explained and defended the Constitution during the ratification debates. Nearly two centuries after his death, Madison looms as large as ever in American constitutional law. The Supreme Court still consults his writings and career for guidance in interpreting the Constitution. Madison’s appeal even transcends traditional divides, as justices across the ideological spectrum routinely cite him.

The story of Madison’s political career thus brings a unique and important perspective to the Citizens United ruling. The underlying issues of free speech—as well as the threat of corruption posed by powerful financial interests—were well-known to Madison. One of the most important constitutional theorists in history, he was also a career politician, serving as a four-term member of Congress and later as a two-term President of the United States. In addition, he helped Thomas Jefferson found the Democratic-Republican Party (known today as the Democratic Party), which meant that Madison spent his life not only as a public intellectual but also as a practical politician engaged in party building. Madison’s political experiences thus provide a revealing glimpse into how the First Amendment’s author approached the issue of money in politics when it came to his own election campaigns.

The full article is available here.

The Supreme Court’s Chance to Eliminate Anti-Gay Juror Bias

The United States Supreme Court is expected to conference on Charles Rhines’s petition for certiorari on April 12, 2019. Rhines is a gay man on death row in South Dakota. New evidence shows that jurors who sentenced him to death knew that Rhines was a homosexual and reasoned that he should not be permitted to spend his life with men while in prison.

Rhines’s petition argues that he should be allowed to present this new evidence to show that the jurors’ anti-gay bias deprived him of his rights to a fair trial and due process under the Sixth and Fourteenth Amendments. As my colleague, Jordan Blair Woods, has observed, sufficient research exists to demonstrate “how challenges linked to sexuality and gender identity in criminal courts can compromise legitimacy and fairness in the criminal justice system.” The Rhines petition presents the Supreme Court with an important opportunity to address that concern head-on.

A Noteworthy Dissent by Justice Thomas

Yesterday the Supreme Court declined to hear the case of Gee v. Planned Parenthood. The case posed the question of whether Medicaid recipients have a private right of action to challenge a state’s determination of who counts as a qualified Medicaid provider. The issue has given rise to a significant circuit split, which normally leads to a cert grant. But not in this case. 

Justice Thomas, joined by Justices Alito and Gorsuch, dissented from the denial of certiorari in a caustic and quite interesting opinion. Here is a portion of what Thomas wrote (I’ve omitted the citations):

“This question is important and recurring. Around 70 million Americans are on Medicaid, and the question presented directly affects their rights. If the majority of the courts of appeals are correct, then Medicaid patients could sue when, for example, a State removes their doctor as a Medicaid provider or inadequately reimburses their provider. Because of this Court’s inaction, patients in different States—even patients with the same providers—have different rights to challenge their State’s provider decisions. . . .

So what explains the Court’s refusal to do its job here? I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’ That makes the Court’s decision particularly troubling, as the question presented has nothing to do with abortion. It is true that these particular cases arose after several States alleged that Planned Parenthood affiliates had, among other things, engaged in ‘the illegal sale of fetal organs’ and ‘fraudulent billing practices,’ and thus removed Planned Parenthood as a state Medicaid provider. But these cases are not about abortion rights. They are about private rights of action under the Medicaid Act. Resolving the question presented here would not even affect Planned Parenthood's ability to challenge the States’ decisions; it concerns only the rights of individual Medicaid patients to bring their own suits.

Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty. If anything, neutrally applying the law is all the more important when political issues are in the background. The Framers gave us lifetime tenure to promote ‘that independent spirit in the judges which must be essential to the faithful performance’ of the courts’ role as ‘bulwarks of a limited Constitution,’ unaffected by fleeting ‘mischiefs.’ We are not ‘to consult popularity,’ but instead to rely on ‘nothing ... but the Constitution and the laws.’

We are responsible for the confusion among the lower courts, and it is our job to fix it. I respectfully dissent from the Court's decision to deny certiorari.”

You can find the full dissent on the Supreme Court website here. Professor Noah Feldman sees the dissent as evidence of an early split between Justice Thomas and Brett Kavanaugh. In a new Bloomberg Opinion column, he writes:

Collegiality on the Supreme Court

How much collegiality is there on the U.S. Supreme Court? CNN’s Joan Biskupic reports that the answer is not much. According to Biskupic:

“[W]hile the justices put up a polite front, some of them recount testiness behind the scenes. [Chief Justice] Roberts in public venues typically exudes respect for his colleagues, yet in the private confines of the columned building, he can sometimes be dismissive. Friction surfaced on occasion during the last annual session between senior liberal Ruth Bader Ginsburg and Neil Gorsuch, Trump’s first appointee, and in an instance between Roberts and liberal Stephen Breyer.” 

But an episode at the Supreme Court yesterday suggests a genuinely cordial atmosphere has taken hold among the justices.

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?