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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Chief Justice Should read Mark Graber
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Sunday, June 28, 2009
The Chief Justice Should read Mark Graber
Sandy Levinson
Yesterday, Chief Justice John Roberts attended the Fourth Circuit judicial conference at the Greenbriar, in West Virginia, where he was interviewed by Judge J. Harvie Wilkinson. Among the exchanges was the following: JUDGE WILKINSON: .... But looking back over the history of the Supreme Court, are there some decisions that stick in your mind, other than [Marbury and Brown], as being of the most monumental consequence? Because it seems to me when people start getting beyond Marbury v. Madison and Brown v. Board of Education, the views about the importance of some of the others diverge. And so I was wondering what cases you might add to that list of really, really landmark cases in the past. I mean, I don't think it could have avoided the Civil War. I'm not suggesting that. But I am suggesting that the court, as an institution, could have been able to play a more effective role as the crisis evolved, and certainly after the Civil War, if it hadn't suffered this self-inflicted wound. CHIEF JUSTICE ROBERTS: Well, no, not controversy. But I think what Taney did is he used a case that could have been resolved on quite narrow grounds -- and I'm not suggesting it would have resulted in a noble decision, you know, freeing the country from slavery. It might well have resulted in the same decision, but it wouldn't have had the dramatic political impact. Taney went quite beyond what was necessary. It could have been resolved on several different levels and either resulted in relief for Dred Scott or not. But instead, he resolved it on the broadest possible grounds. And as a result, I think, threw the court into the political realm quite self- consciously. So no, I mean, there are situations where the court obviously has to resolve, as a legal matter, issues that are of great political significance. But as Marshall did, I think it's important to look and see if you can do that on a narrower legal basis. And as Taney did not, I think it's important to recognize there are going to be huge consequences if you do leap ahead and involve the court in politics.
Comments:
Another question for Roberts:
I can see how one can argue that Marbury is a form of minimalism and Dred Scott is a form of non-minimalism, but how is Brown v. Board of Education minimalist in any fashion? He sort of drops that out of his discussion pretty quickly.
Good question. The best quick answer is to combine Brown I with the implementation decision the following year, which called only for "all deliberate speed" that left things pretty much as they were in most of the Southern states. Note that Roberts praised the Court's strip search decision for finding the school officials immune from damages, thereby stripping the case (no pun intended) of any practical importance with regard to the victimized young woman.
I had occasion to read Gerald Leonard's "Law and Politics Reconsidered: A New Constitutional History of Dred Scott" recently made available via SSRN that supports Mark Graber's "Dred Scott and the Problem of Consitutional Evil." Leonard was a little too subjective in his support of CJ Taney and dismissal of Justice Curtis' dissent. Through this article, I was led to Paul Finkelman's "Scott v. Sandford: The Court's Most Dreadful Case and How it Changed History," also available via SSRN. While Finkelman cited Graber's 2006 book, he does not dwell upon it as does Leonard. Finkelman's article seemed to me to be more balanced.
In Part I. "Modern Uses of Dred Scott," Finkelman states: "Because all modern commentators believe Dred Scott was misguided, even pernicious, proponents of original-intent analysis have labored to prove that Dred Scott was not a decision based on original intent. Instead, supporters of orginal-intent analysis argue that Dred Scott resulted from Taney's desire to impose his own personal views on the law. Thus, in 1976 Justice William Rehnquist (later Chief Justice), a strong advocate of original-intent analysis wrote that Dred Scott is '[t]he apogee of the living Constitution doctrine during the nineteenth century ....' "However, jurists and legal scholars opposed to original-intent analysis point to Dred Scott as a prime example of original intent and use it to illustrate the danger of such legal thinking." But the Roberts interview excerpts do not indicate (to me) his position in this regard. (Unfortunately, my printouts of the two articles omit the SSRN cites. But Google will get you there.) With respect to Brown v. Board of Education, it might be difficult in this day and age for Roberts to disagree with the decision. But Dred Scott I'm sure will continue to generate many more articles, pro and con.
Another example of Dilan's point would be Bush v. Gore, where the Court seems to have gone out of its way to try to resolve a political dispute without letting the political branches do so. While nearly universally criticized within the legal academy, that decision hasn't had anywhere near the impact on the prestige of the Court that Dred Scott had.
I'll just state for the record that I think Don Fehrenbacher has much the better of the argument about Dred Scott, and that I personally find Prof. Graber's argument unconvincing.
Then there is Roger Taney the person, staying on the Court into his dotage because his fortune had been lost, a lonely and increasingly bitter person since the death of his wife, and a dedicated Jacksonian class warrior on behalf of the rural southern frontier against the commercial northeast. He was perfectly willing to fire a shot as potent as that Ft. Sumter.
Scalia pegged Roberts right as exercising faux restraint. Roberts remains a dedicated ideologue, it was only a faux joke to propose, as he did in the same speech, to give himself a second vote (more votes for decent folk). NAMUNDO is doubly a trick solution. As has been well expressed elsewhere, the interpretation of the bailout is contra the language and history of the provision. But the second trick is to explain how a provision constitutional at one time becomes unconstitutional at another by virture of a social change. The injury to the dignitary interest of the state is the same. What sort of originalism is this, what sort of faux respect for a coordinate branch? Is it a one-bite policy like official immunity? Or, as Sandy indicates, do cases like City of Berne and FMC v. SC Ports Authority simply refuse to accept the fundamental structural change accomplished by the Civil War Amendments.
An arguably even more egregious inclusion in the "Profiles in Courage" was Lucius Q.C. Lamar, a former slaveholder who did everything he could to sabotage Reconstruction. Yes, it was very nice that he gave a eulogy praising Charles Sumner, but Lamar was a bad apple.
Roberts's speech is just the latest example of the perceived need to claim Brown was correctly decided and Dred Scott was incorrectly decided under one's theory of constitutional interpretation (Posner makes the former point in How Judges Think while attacking J McConnell's originalist defense of Brown).
And query whether Roberts can really be considered a minimalist if he is deliberately laying the precedential foundation to eliminate the exclusionary rule, overturn the Voting Rights Act, and end affirmative action. It's probably too early to tell if this is, in fact, what he is doing; but I suspect that it is. And if that is the case, I think the answer is no, he is not a minimalist.
It is just a damn shame that we're not commenting on that Dante post!
MODEST PROPOSAL: Change the software on this blog to make it easy to ban obnoxious participants and re-open comments. Because 99% free speech is a beautiful thing.
"And query whether Roberts can really be considered a minimalist if he is deliberately laying the precedential foundation to eliminate the exclusionary rule, overturn the Voting Rights Act, and end affirmative action. It's probably too early to tell if this is, in fact, what he is doing; but I suspect that it is. And if that is the case, I think the answer is no, he is not a minimalist."
Perhaps Roberts, who is relatively young, is a MOSAICIST. By the Bybee, NBC's Chuck Todd's description of the Ricci 5-4 majority decision as legislating from the bench was most refreshing.
what mattski said...
as to Chuck Todd's comment ... sounds like "common law" or dare I say "appellate courts making policy." Where did I hear that before?
"But the second trick is to explain how a provision constitutional at one time becomes unconstitutional at another by virture of a social change. The injury to the dignitary interest of the state is the same. What sort of originalism is this, what sort of faux respect for a coordinate branch?"
Not much of a trick, it seems to me. If the 15th Amendment only prohibits intentional discrimination in voting, as the Court said about 30 years ago in Mobile v. Bolden (and I suspect your disagreement, and that of many others, is really with that holding), the enforcement clause of that amendment only gives Congress the power to enforce the ban on intentional discrimination, in which enforcement, of course, it may overreach to an extent and ban practices that merely have disparate effects on minorities - as, especially back in 1965, if the Department of Justice had had to prove discriminatory intent every time it wanted to deny preclearance, it wouldn't have gotten very far. But today, the claim is, there isn't much intentional discrimination left, and most of what Section 5 bans are small retrogressive changes that aren't discriminatory at all. If the Constitution gives Congress the power to enforce a ban of A, it's allowed to also ban some B (retrogressive changes that aren't clearly intentionally discriminatory) if it's reasonable to suspect B of being A (as it was when the VRA was first enacted), but if A becomes quite rare, Congress can't keep banning B.
It's as if Balkinization is in the Summer Doldrums as SCOTUS goes on vacation after a year that the LATimes describes in its editorial today (7/5/09):
"EDITORIAL The Supreme Court in summation The Supreme Court term just ended was marked by close rulings but also surprising consensus. July 5, 2009" This sojourn will be interrupted with the Senate Judiciary Committee hearings on the nomination of Judge Sotomayor that may produce fireworks or duds. The Obama/Biden Administration has most of the burners on its stove going as it tries to mend what happened from 1/20/01 to 1/20/09, a real big mess that continues to unfold somewhat like the tip of the iceberg that global warming exposes more and more. The opposition party may be so weakened that it may become a suicide bomber politically. Hopefully Obama/Biden will keep the Democratic Party from excesses that might be tempting now that it is in power. We all have to pull together to come out of this mess. These are sad times, often depressing. But the celebration of the Fourth of July should have reminded all of us that what we have here in America is worthwhile and worth preserving, making it better. I personally take comfort every time I hear "America the Beautiful" sung, especially Ray Charles' rendition. But what I am most looking forward to is openness and accountability. We must demand it. A first step?
I see that Sandy Levinson is moderating a discussion at the Aspen Ideas Festival, including O'Connor and Breyer, that is airing on C-SPAN.
Marbury and Brown? I think I need to search for more information. Guess I missed something important gmail email login. Thank you for sharing. Opinions of them are always helpful and intelligent
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