Video of FedSoc’s 2012 Annual Supreme Court Roundup with Ted OlsonSCOTUSreport • July 9, 2012 • 11:46 am
On July 6, 2012, former U.S. Solicitor General Theodore Olson delivered the Annual Supreme Court Round Up at The Mayflower Hotel in Washington, DC.
- Hon. Theodore B. Olson, Partner, Gibson Dunn & Crutcher LLP and Former U.S. Solicitor General
- Introduction: Mr. Douglas R. Cox, Gibson, Dunn & Crutcher
On July 6, 2012, in front of a packed audience in the Mayflower Hotel ballroom former solicitor general Ted Olson offered his take on the Supreme Court over the last year. He began by noting how quickly liberal pundits went from predicting that irresponsible activist conservative justices would overturn Obamacare, to praising Chief Justice Roberts for his statesmanship and willingness to wisely rise above “law and ideology.” Olson quoted CNN and New Yorker legal analyst Jeffrey Toobin, who, after the decision came down, rationalized it by saying that “in a constitutional storm any port will do.” The former solicitor general then turned to the problem of the homogeneity of the court. He pointed out that not a single justice served in public office, all but one served as an appellate judge, and that their backgrounds showed a tilt toward the northeast U.S. Indeed, he said that four of the five boroughs of New York City were represented on the Court; he joked that presumably the next appointment will hail from Staten Island. He also discussed the dominance of Harvard, Yale, and Princeton in the justices’ educations.
Despite the attention the year’s controversial cases received, Olson noted that there were 34 cases with no or only one dissent. However, in the most controversial cases, the opinions usually split evenly on conservative and liberal lines. Olson then turned to examine the decision in some of the year’s highest profile cases. One pattern he saw was that Justice Alito has been strong in protecting Fourth Amendment rights, but has been the sole dissenter in various First Amendment cases. Regarding the U.S. v. Jones warrantless GPS tracking case, Olson highlighted the divergence between Justices Scalia and Alito in how they addressed the issue. Justice Scalia focused on the understanding of trespass at the time of the Founding, whereas Justice Alito turned to what are realistic expectations of privacy today. Looking at the decision in Miller v. Alabama, which struck down mandatory life sentences without parole for juvenile offenders, Olson noted that the majority held that the ban on cruel and unusual punishment prohibits “excessive sanctions.” In doing so, the majority imported the notion of excessiveness from the bail and fines clauses. As for Hosanna Tabor, Olson said it was an important victory for religious freedom; the unanimous Court upheld both the free exercise clause as well as the establishment clause against the federal government.
The two decisions that upset the political left the most, he explained, were Knox v. SEIU and Montana’s Citizens United case. Each in a different way removed barriers to political activity; both also effectively liberated money hostile to the left. The Obamacare decision, he noted, abounded with legal and political irony. He attempted to explain Chief Justice Roberts’ understanding of what is and is not a tax, but admitted he had trouble making sense of it. Olson said he regretted the leaks regarding how the Court came to its decision, which he said put a stain on the Court. He concluded by chastising those, from left or right, who sought to politicize the decision.