Dear Dahlia, Jack, and Cliff:
First, Dahlia, to answer your question about what it’s like to have three cases I argued still undecided—well, it seems kind of odd. The statistical chances against none of the three being announced today were pretty long. There is always a whole lot to do on a day when a case you’ve argued is announced, and it blows up your schedule when it happens. I’m not sure what you do when two or three are all announced at once. I guess I am about to find out.
Today we were supposed to write about the “landmark” cases to be announced this morning. I didn’t know it was possible to find three such uneventful cases left at this time of the year. Thank goodness for the chief’s Bob Dylan quote. Is it true that I am barred from entering your contest? That’s a shame since I believe that few, if any, people who follow the court know as many lyrics by Bob Dylan (or other rock-’n’-roll greats for that matter) as I do. I would have been a serious contender for the prize. What? There’s no prize? Well, nevermind.
In the absence of important cases, I would retreat to Big Themes of the term. But here I am skeptical of all of the analyses explaining why the court has “moved” in the direction of greater moderation and consensus, less ideological divide, and fewer 5-4 cases. There has been a good bit of imaginative speculation about the causes of this new Era of Good Feelings at the Marble Palace. But I don’t buy the underlying premise that the court has “moved.” I just think there are simply fewer cases on the court’s plate this term that lend themselves to divisive 5-4 splits. It’s the docket that’s different, not the justices.
Evidence cited for a shift or movement on the court includes 1) some instances of “liberal” justices—John Paul Stevens and Stephen Breyer—joining in “conservative” results; 2) some instances of “conservative” justices—the chief justice and Justice Alito—joining in “liberal” results; and 3) the fact that the resulting decline in 5-4 cases has been accompanied by a rise in the number of “let’s all agree to agree” 9-0 cases.
But, as Cliff convincingly notes this morning, Justice John Paul Stevens’ vote to decline to invalidate the Indiana voter ID law in Crawford v. Marion County Election Board, and his and Justice Breyer’s votes sustaining Kentucky’s lethal injection process in Baze v. Rees, may well be explained by their lawyerly view that there was simply not a sufficient basis in the record to invalidate either state’s “illiberal” procedures. Whether or not one agrees with their conclusions, there is no reason to think either justice would have written or voted differently had the same case appeared a year ago.
As for the chief justice and Justice Samuel Alito joining in decisions favoring victims of discrimination—see, for example, CBOCS West v. Humphries, which recognized a right to sue for retaliation for bringing a discrimination claim and was decided 7-2—these outcomes were determined by precedent, not politics, most recently by the decision of the court in Jackson v. Birmingham Board of Education, which held that a high-school coach dismissed for complaining about discrimination against girls’ sports could sue for reinstatement under Title IX. The opinions in CBOCS West make clear that a majority of this court would have held against the retaliation claim if the court hadn’t already heard Jackson. It is also clear that Coach Jackson (for whom I argued in the Supreme Court) would have been tossed out of court if his case had come before the court this term. And had that happened, every coach, teacher, and guidance counselor would have learned to keep their mouths shut when the girls’ teams were denied heated gyms, real backboards, and buses to the away games like the boys have.
Is it a sign of some new moderation that the court is actually respecting stare decisis? I don’t think so. The employment discrimination cases involve statutory interpretation, and such cases have always been accorded the highest and strongest version of respect for prior precedent. If you are a new chief justice or an associate justice, why in the world would you want to eviscerate the doctrine of stare decisis in interpreting statutes? To do that would mean that when the next wave of federal laws (which could be the work of a dramatically new federal government) come before your court, your own decisions putting an interpretative gloss on those laws would not be the least bit binding on subsequent courts.
To say the Supreme Court has “moved” this term would imply that cases decided in the last couple of terms would have come out differently—in vote or tone if not result—had they been argued and decided this term. But I see no evidence that this is so. My assumption is that the federal partial-birth abortion case, the school desegregation cases from Louisville, Ky., and Seattle, and the campaign finance cases surely would have had the same 5-4 splits and produced the same degree of rancor if they had been argued and decided this term. In every one of those cases, the court decided more sweepingly than was necessary to resolve the particular issue before the court. When the next wave of abortion cases comes before this court, and when it first confronts the Establishment Clause cases that were nowhere to be seen this year, this term’s glimmer of consensus and minimalism may be long gone.
Jack and Cliff, in celebration of this slow news day, Dahlia and I just went on the first-ever Supreme Court Breakfast Table Alternative Activity Road Trip, in which we traveled to the Brookings panel launching Ben Wittes’ new book, Law and the Long War, to hear Jack, Seth Waxman, and Stuart Taylor discuss the issues Ben raises. Jack, both you and Seth have played heroic roles in these extraordinary times of clashing concerns of liberty and security, and all four of you were terrific today. Boumediene is undoubtedly a case of historic importance, and we should all discuss it tomorrow. Jack, you were head of the Office of Legal Counsel at a most critical period. Your thoughts are the ones we most look forward to.