Other News & Analysis

Tom Goldstein on the Evolution of SCOTUSblog

August 20, 2012

GoverningWorks features a fascinating interview of Tom Goldstein, the founder of SCOTUSblog. Here’s an excerpt from the transcript:

[W]e can track all of our in-bound readers, unless someone takes the highly unusual step of hiding where they’re coming from.

And the Supreme Court doesn’t hide itself. It has the IP [Internet Protocol] address “Supreme Court of the United States” is the domain that’s associated with the IP address. And we were able to see hundreds and hundreds to thousands of hits coming in from them on any given day.

And we know from our former students who are clerks, from just casual conversations with the Justices, that the Court is very conscious of the blog and a lot of people inside the building read the blog. That doesn’t mean they think particularly highly of the blog or anything like that. Certainly, I would never say that the blog has influenced anything the Court has done.

But, you know, if you’re an important institution and there’s one Web site devoted to following everything that you do, it’s not surprising that you’re going to read it.

And, I was concerned that the Justices and their law clerks would come to believe that we were writing effectively to them. So that, if we were….So, back in the day, for example, if we filed a Cert. Petition, then we would write on the blog, ‘We filed this really interesting Cert. Petition. It’s about this, that or that question. And, here’s the reason the Court might take the case.’ That was never intended for the Court as an audience. But, the Court doesn’t know that and could mis-understand it. And so it became very important to cut all that out because, if the Justices don’t trust you, then you’re not being an effective advocate.

The other thing that happens is that because other people realize, or at least perceive, that the blog has an audience inside the building, people will try and use the blog to affect the Justices. So, constantly, we’re getting approached by people asking us to write about their cases, highlight their cases, cover cases in a particular way, as part of their agenda for influencing the Justices. And so, we’re incredibly resistant to that both because we think it’s improper and because we are just…we don’t want the Court to look at us in that way.

A kind of prototypical illustration is, there was a case last Term on the merits a the Court, where there parties were trying to get…one of the parties was trying to get a set of documents in front of the Court and was trying to lodge the documents in the Court but was unsuccessful in doing that. And so they couldn’t get them in front of the Justices and their law clerks in the ordinary process. And we got heavily lobbied to publish a story about the documents. And, they were very interesting. And so it presented a really genuine journalistic dilemma about what to do because it was apparent to me that a real part of their agenda was not because they wanted the documents published for the sake of publishing them and their interest [but] because they wanted a back door into the Court. And resolved that by not publishing them. But, it was a puzzle to work through.

Intention and the Canons of Legal Interpretation

July 16, 2012

Author: Stanley Fish
Source: New York Times

Those who are still wondering why Chief Justice John G. Roberts voted as he did in NFIB v. Sebelius might find an answer (not necessarily the answer) in Antonin Scalia’s and Bryan A. Garner’s new book, “Reading Law: The Interpretation of Legal Texts.” One of the canons of legal interpretation the authors rehearse is the Constitutional-Doubt Canon, #38 in their taxonomy: “A statute should be interpreted in a way that avoids placing its constitutionality in doubt.” This canon, Scalia and Garner explain, “rests upon a judicial policy of … minimizing judicial conflicts with the legislature.” They cite and affirm as exemplary a statement by Justice John Paul Stevens: “It is our settled policy to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.”




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Left, Right, and Judicial Review

July 12, 2012

Author: Ilya Somin
Source: Volokh Conspiracy

Various commentators, such as co-blogger Orin Kerr and Joel Alicea argue that the individual mandate case represents a sea change in conservative attitudes to judicial review. Whereas before conservatives supposedly opposed most judicial invalidation of statutes, now they emphasize the need to strike down laws that can’t be justified on originalist grounds. Orin also suggests that the battle over the mandate has led liberals to change position and embrace “judicial restraint,” which they were reluctant to do before.

There is something to these claims. But I think there is a lot more continuity in both liberal and conservative attitudes towards judicial review than these commentators suggest. As I pointed out at the very beginning of the individual mandate battle, conservative scholars and jurists have been arguing for stronger judicial enforcement of constitutional limits on federal power for many years now. The issue long predates Obamacare.

Alicea contrasts the four conservative justices’ position on the mandate with Chief Justice Rehnquist’s endorsement of “restraint.” In reality, however, Rehnquist led the federalism “revolution” of the 1990s and dissented in Gonzales v. Raich. Moreover, he was advocating stronger enforcement of federalism as far back as the 1976 case of National League of Cities v. Usery . When that decision was overruled in 1985, both he and Sandra Day O’Connor bitterly dissented and forcefully rejected the dominant liberal view that federalism issues should be left to the political process. Thus, there is at least a 35 year history of leading conservative jurists urging strong judicial enforcement of limits on federal power.

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The Mystery of John Roberts

July 11, 2012

Author: Linda Greenhouse
Source: New York Times

In November 1991, the Supreme Court heard argument in Lee v. Weisman, on the question of whether a prayer recited by a member of the clergy at a public high school graduation violated the constitutional separation of church and state. The vote after argument was 5 to 4 to allow the prayer. Chief Justice William H. Rehnquist gave the opinion-writing assignment to Justice Anthony M. Kennedy.

Some months later, Justice Kennedy sent a note to Justice Harry A. Blackmun, the senior justice on the dissenting side. He had changed his mind, Justice Kennedy said; the argument against allowing the prayer was the better interpretation of the First Amendment’s Establishment Clause. Justice Blackmun, now the senior justice in the majority, had the prerogative of reassigning the opinion. He told Justice Kennedy to keep writing.

When the 5-to-4 decision to prohibit graduation prayers was finally announced on June 24, 1992, it was huge news. From today’s perspective, it may not sound like a big deal. But Lee v. Weisman was one of the hot-button cases of the 1991 term, perhaps second only to Planned Parenthood v. Casey, the abortion case that challenged the continued validity of Roe v. Wade.

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The Chief Justice and Judicial Restraint

July 10, 2012

Author: Carrie Severino
Source: National Review

Jumping off Ed Whelan’s excellent post, I have heard a number of people argue that we shouldn’t have been all that surprised by the chief justice’s decision because he is easily classified as the sort of conservative who believes in a very robust application of what is often called “judicial restraint.”  Steven Teles — author of the excellent book The Rise of the Conservative Legal Movement — provided as good a summary of the argument as I’ve seen in writing:

One way to think about Roberts’ decision-making is that he really is a Reagan Justice Department-era conservative (I wrote about the Reagan DOJ in an article in Studies in American Political Development called “Transformative Bureaucracy”). That era of conservatives were pissed off at the activist judiciary that brought us school busing and other forms of what they took to be social engineering (which explains Roberts’ very blunt ruling in Parents Involved) and an inversion of American federalism. But that generation of conservatives were basically followers of Justice Frankfurter, and they tended to argue that it was 1960s/70s judicial liberalism that they were against, which they claimed was a kind of Lochnerism of the left. That kind of judicial conservatism—which was really Robert Bork’s style of conservatism, and the origin of his version of originalism—is in very stark contrast to legal libertarianism that inspired the case against the ACA.

Roberts went quite far in the direction of validating the constitutional sense of the case against the ACA, but what caused him to come down where he did is an entirely different mood than the folks who brought this case. In short, Roberts is not a conservative cut from the Randy Barnett/Richard Epstein cloth, which is comfortable with quite sweeping uses of judicial power to limit government. Roberts is sympathetic but simply lacks the taste for the jugular that they have, either as a result of his role as Chief Justice or his prudential sense of how far it is reasonable for the Court to go in using its power.

Teles’s explanation for Roberts’s behavior appeals to those of us who have followed the development of the conservative legal movement and the ideas that animated it. But I don’t find it persuasive, primarily because it requires one to assume that the NFIB case was approached differently by two kinds of “conservatives.”

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Chief Justice Roberts and the Changing Conservative Legal Movement

July 10, 2012

Author: Joel Alicea
Source: Public Discourse

The clash between Chief Justice Roberts’ opinion and that of the joint dissenters is best seen as a clash between two visions of judicial restraint, and two eras of the conservative legal movement.

At the sprightly age of 57 and less than seven years into his term as chief justice, John Roberts looks like a man whom time has left behind. The reaction among legal conservatives to the Roberts opinion in National Federation of Independent Businesses v. Sebelius (the healthcare case) has been brutal. Many have accused the chief justice of exchanging the black robes of the jurist for the trappings of the politician. The chief justice is said to have “blinked” and “failed [his] most basic responsibility.” Noted originalist scholar Mike Rappaport strongly implied that Roberts is “both a knave and a fool.” The cataloguing could go on.

As much as these reactions reveal about differing views on a hotly contested question of constitutional law, they are at least as interesting because of what they say about the state of the conservative legal movement. Today’s legal conservatives view the chief justice’s opinion as judicial abdication, but it was not too long ago that the philosophy reflected in Roberts’ opinion would have been conservative orthodoxy. The truth is that the conservative legal movement’s conception of judicial restraint has changed, departing from the view it held when it emerged from the constitutional wilderness to which it had been banished during the Warren Court. NFIB v. Sebelius displays a conservative legal movement in transition—and one that is increasingly leaving the judicial restraint in Roberts’ opinion behind.

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The Changing Conservative Legal Movement?

July 10, 2012

Author: Ed Whelan
Source: National Review

In an interesting and provocative Public Discourse essay today, Joel Alicea argues that the “brutal” reaction of legal conservatives to the Chief Justice’s Obamacare opinion shows that “the conservative legal movement’s conception of judicial restraint has changed, departing from the view it held when it emerged from the constitutional wilderness to which it had been banished during the Warren Court.”

In the early years of the conservative legal movement that arose in response to the Warren Court, Alicea explains, deference to legislative majorities was the movement’s “primary commitment,” and judicial restraint “used to mean that a judge should bend over backwards to avoid striking down a law.” But now, he argues, the emphasis has shifted, and the concept of judicial restraint has been transformed among legal conservatives to mean “adherence to the original meaning [of the Constitution]: no more but also no less.” (Emphasis in original.)

Alicea’s essay is intelligent and nuanced, but I think that he overstates his case.

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Chief Justice Roberts and the Morality of Law

July 9, 2012

Author: Ramesh Ponnuru
Source: National Review

It seems to me that many commentators are missing the distinction between a penalty and a tax in the same way that Chief Justice Roberts did. The error, grandiloquent as this sounds as I write it, derives from a fundamental misunderstanding of the nature of law.

Law has an inescapable moral component. Laws almost always have normative force. Let us leave aside the cases of laws that purport to command us to do something that is immoral, or to forbid us to do something morally obligatory. Those are unjust laws that are “no laws at all” in the sense of binding the conscience. Far more often, laws make that which was morally optional either morally mandatory or morally forbidden. There is no intrinsic moral reason that driving on the left side of the street should be impermissible. Lawmakers can nonetheless have good reasons for forbidding it, and once they have done so, their having done so becomes a good reason for us not to do it.

To my mind, what made the individual mandate so obnoxious was that it carried the law’s moral authority to a field where it was unnecessary and inappropriate. The government was purporting to bind our conscience in a new way: We were to be obligated to purchase a product, health insurance, as part of our general obligation to obey the law.

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Did the Chief Justice Have to Decide the Commerce Clause Question in NFIB?

July 3, 2012

Author: Mark Tushnet
Source: Balkinization

Short answer: On one view, yes. A brief course in statutory interpretation is needed here. There is a “canon” of statutory construction known as the “constitutional avoidance” canon. It comes in two versions, now labeled the “classical” version and the “modern” one. On the modern version, a judge faced with a statute that, most naturally read, raises difficult constitutional questions, should adopt instead a construction — if one is fairly available — that does not raise such questions. On the modern version, then, the Chief Justice didn’t have to address the Commerce Clause question; all he needed to do was to note that the question was difficult and that construing the statute to impose a tax was an available reading.

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So, did John Roberts Succeed? Some thoughts on being too clever by half.

July 3, 2012

Author: Jessie Hill
Source: PrawfsBlawg

Though I’m not sure I can add much useful insight to the polyphony already out there about the Supreme Court decision in the Affordable Care Act case, the question that’s moving me to blog, now that we’re a few days out, is whether Chief Justice John Roberts in fact succeeded in his ostensible goal–that is, convincing the nation that this was not a politically or ideologically driven decision and that the Supreme Court is not a political/ideological institution.

Obviously, the disposition of the case did not ultimately break down on ideological lines. No one can dispute that. But at the same time, from this postgame perspective, Roberts’s rather cunning opinion appears to me to be more politically driven than it would have if he had just voted with the conservatives.

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