Friday, July 16, 2010

"Persuasion" versus "authority" (and "authoritarianism") in the law

Sandy Levinson

Linda Greenhouse has a typically interesting column online in which she argues that the era of the "Kennedy Court" is effectively over, that the Court is now rather firmly in the hands of the conservative majority of which Kennedy is now a fairly consistent part (rather than the "swing justice" who is willing, on a suitable number of occasions, to break ranks). At best, he is the Scott Brown of the conservative bloc, which, for liberals, is far better than his being Mitch McConnell, but still not worth praising to the skies.

What provokes this particular posting, though, is a quote from within the column, from Kennedy's opinion in the Hastings Law School case on the Christian Legal Society: "[S]peech is deemed persuassive," said Kennedy, "based on its substance, not on the identity of the speaker." But, of course, Kennedy, as one of the leading "Supreme Court papalists," i.e., someone who views the Court as literally the last word on the meaning of the Constitution (see, e.g., his opinion in Boerne), is remarkably impatient with anyone who dares to disagree with interpretations of 5-person majorities of the Court. To be sure, he's not relying on "the identity" of a particular justice, but he is surely relying on the altogether contingent fact that five justices happened to adopt a given view, for whatever reason, over what is often altogether persuasive dissents. Constitutional law in the US (and perhaps anywhere) is fundamentally authoritarian inasmuch as it relies on a given institution to be the "ultimate interpreter" of inherently debatable propositions.

I suppose what Kennedy means is that editorial writers and law professors (and even ordinary citizens) are free to disagree with Supreme Court decisions, but, as law professors, we have to teach our students that it really doesn't matter, at the end of the day, whether they are "persuaded" by the majority, since what really counts, as Justice Brennan told all of his clerks immediately after meeting them, what really counts if the "rule of 5," i.e., whether the proposition got five votes.

On another matter, Greenhouse also notes that Kennedy, who is now 74 and has been on the Court a full 22 years, has no apparent intention to retire. "The man obviously still loves his job . . . " she writes, "and he has no reason to leave it." That is, he has "no reason" from his own egoistic perspective, since he is both a key vote for the reigning majority and, when he wishes to be, the swing justice who can toss the liberals a bone or two. And he gets to enjoy the particular kind of fawning that accompanies being a Supreme Court justice (including lots of opportunities for foreign travel and bloviation about how law rests on rational persuasion rather than political power). But, of course, from a public-regarding perspective, he (and every other justice who has served more than 18 years) has every reason to leave, since life tenure really no longer, assuming it ever did, serves the public interest. If Obama is re-elected in 2012 (which I think is an almost overwhelming probability given the disarray in the Republican Party and the current lack of a truly credible challenger to Obama), then I assume that we'll be treated to the spectacle of Scalia and Kennedy trying to hang on until 2017 in order to deprive him of an appointment that might actually have real consequences for the Court. (Needless to say, it is overdetermined that I think that Justice Ginsburg should announce her retirement with some dispatch. By the end of the 2010 term, she will have had her 18 years, and it will be time mfor her to go.)

David Souter (a perfectly fine justice who graced the Court) proved that he was perhaps the least narcissitic justice ever to serve on the Court, by retiring with consummate grace at the end of his 18th year on the Court and making way for someone new. Incidentally, a very fine forthcoming biography of William Brennan by Stephen Wermeil and Seth Stern demonstrates Brennan's own narcissism with regard to his unwillingness to retire, so I certainly don't mean to suggest that conservatives are necessarily less public-regarding than liberals. Ginsburg will be an interesting test case, since there's really no excuse, beyond her personal preference, for remaining on the Court. Justice Breyer is in a somewhat more complex situation. His 18th year will come at the end of the 2011 term, in June 2012. One could easily predict that the Republicans will do whatever it takes to prevent Obama from making an appointment at that time, even it appears likely that he will win re-election. And, of course, if there is any real doubt about that, then that clinches the case for delaying tactics. If Breyer, who is also now in his 70s, wishes to assure a Democratic successor--and one of the problems with life tenure is precisely that it invites such political gaming--then he, too, should consider an earlier resignation.


I respect her columns (not too long ago she wrote an eloquent one on DeShaney), but I'm not sure if I totally buy her argument.

On the death penalty, homosexual rights, detainee rights, and probably some other issues, Kennedy is not purely "conservative." As the worthwhile book cited in the piece suggests, he truly has cause to be considered a 'libertarian' justice.

The "Scott Brown" reference is really crude too. Need I list the cases that offer more than what Brown will ever?

Speech clearly is influenced by who is speaking though Kennedy was speaking of a "principle" (not fact) found in a certain context (the university in question).

As the SC having the final word, up to a point: the safety valve is (see Lawrence v. Texas) that changing times can lead the justices to determine a new rule is appropriate w/i the limits of the Constitution. As David Strauss notes, so does "common law judging" as a whole.

I'm not sure why Ginsburg is supposed to retire with dispatch. Her personal situation itself would seem to sympathize if she staid on a few more years.

With two new justices, it seems reasonable in fact for the veterans to stay on for a few years to determine that wing gets their feet wet. I don't think "18" is some magic number. Brennan's 18th year would have been in the mid-1970s!

Finally, an election year is not the best time to retire. So, I would say that post-2012 would be ideal for that reason too.

With respect both to Joe and to Justice Ginsburg, I think that her "personal situation" is utterly irrelevant as to whether she should remain on the Court. That's the difference, after all, between self-regarding and public-regarding perspectivs. If she believes that she truly brings a uniquely important perspective that would probably be lacking in a successor, that's a good reason to remain (though I suspect she'd be kidding herself). But the fact that being on the Court gives her something to do is not a sufficient reason to stay. (I don't mean to be snarky. I admire Justice Ginsburg, but so what, unless I truly believe she brings a uniquely wise perspective to the Court, which I don't.)

With respect as well, I only said "sympathize," and provided two more substantive reasons against her retiring in 2012.

I agree her personal situation doesn't give her some right to stay on. But, if 18 is no magic number, and there is in effect a tie (Ginsburg and Breyer), him going first for that reason is not really horrible to my mind either.

One of the tea leaves that predicted Souter and Stevens retirements was their hiring only one clerk for the term after their final term. According to ATL blog, Ginsburg has hired at least two and perhaps four clerks.

I'd like to point out that Ginsburg could retire in 2011, which is not technically an election year. The last six retirements, however, have all been in the two years following a presidential election (Rehnquist, of course, did not retire of his own volition, but the fact is still true). The last justice to retire following a midterm was Marshall, and before him, Powell.

One reason that lead to Kennedy's nomination was that two failed nominations pushed the timeline extremely close to the 1992 presidential election. A democratic senate could stall until after the election in the hope of a democratic president.

In sum, I don't see a political reason that makes a retirement the year following a midterm election problematic.


I recall that the rule only requires a justice to stay on the court for 15 years before becoming eligible to retire with full pension; so I am not sure where you got the magic figure of 18 years from.

My use of "election" referred to in particular the presidential election, not midterms, particularly of the nominating President. I'm sorry for any confusion. This is why I highlighted 2012.

The use of "technically" suggests the writer realizes that the cycle would have truly begun that year.

With this clarification, as well as the heightened partisanship of recent years (more so even than the 1990s), the data provided becomes much less instructive.

I don't know what the Kennedy reference concerns. He was confirmed during the Reagan Presidency. Brennan retired in 1990. Marshall retired in 1991.

As to "18," that is some number based on an ideal tenure of the justice as a whole, not a matter of him/her being eligible for retirement benefits.

Ginsburg has told people she will stay on for a few more years. Some thought her health would require retirement, but apparently, she is doing fine in that department.

For me, 18 is the ideal number because there are nine justices, and if we had fixed terms, then there would be a new appointment every two years, and no given president could "pack the Court" with judges serving full 18-year terms (inasmuch as the kind of system I (and others) envision would have judges serving in given slots, so that a justice who retired--or, more likely, died--in mid-term would be succeeded only for the length that is remaining. If we had a seven justice court, then I'd be happy with 14-year terms, which is (roughly) the average around the world for judges serving on the highest "connstitutional court." And, for what it's worth, only one state--I think Rhode Island--has "full life" tenure. All of the others have limited terms or an age limit of 70.

Thank you for explaining the 18 years 'rule.' On the other hand, is it your view that life-time tenure on the SC is ...what.. not really what anyone intended? Or, more likely, just not good policy?

My WV is fortar, which seems curiously close to fortas.

Sandy, I really like that idea of alternating a Justice every 2 years.

What I'm concerned about, however, is your prognostication that Obama is a cinch for another 4 years.

Are you serious?

My friends and I have been discussing the growing possibility that Hillary Clinton will challenge Obama, and beat him soundly. My goodness man, have you seen her new hair-do? Is any further proof really needed?

On the Republican side, at this point, they could nominate Mick. E. Mouse and he'd beat the pants off of Obama. He's actually tied with Palin - yes, that Palin - in prelim polls, and virtually every other legitimate candidate (which necessarily rules out Palin) is ahead of Obama by a comfy margin.

Barrack Obama is out of his league. He needs to be out of his job as well.

Let's just hope it happens at the end of 4 years and not before, lest the bumbling buffoon takes over.

At that point, I really will consider relocating to Australia.

Oh wow you really had me going there, until your last line about Australia. Gonna mooch off their universal health care, eh mate?

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