Dear Paul and Walter:
Paul I’m so glad you mentioned Justice Stevens’ vote in Holder v. Humanitarian Law Project. I think it’s fascinating that the liberal lion in all the war-on-terror cases not only sided with the conservatives in this case but also did so without comment or reservation. Justice Stephen Breyer was so upset by the Holder decision that he read his dissent aloud from the bench last week. But Stevens’ last word on war and executive power will be that (quoting the chief justice’s majority opinion) “Congress and the executive (branch) are uniquely positioned to make principled distinctions between activities that will further terrorist conduct and undermine United States foreign policy, and those that will not.”
As we bid farewell to Justice Stevens Monday, it’s so important to remember that he is the last veteran at the court. He cares about soldiers and how they are treated in wartime. He may simply approach battlefield cases very differently than he does anti-terror policy cases. Holder was a hard case, involving a statute aimed at designated terror groups and narrowed by Congress. But this wasn’t a case about treating fighting men badly, and that may have made it different from the war on terror cases that came before.
You have both had such tremendous insights into Doe v. Reed and I do think that in some ways this whole case involved a debate about how the Internet has made privacy a completely different animal than anyone anticipated. The court squabbles about this point only in the margins yet it’s clear that both Alito and Thomas believe that it’s the Internet that has changed the publication of one’s name online into something akin to an invitation to harass and bully. I don’t think this is entirely wrong, but as both of you point out, it’s very odd to be arguing this point in the context of free speech and election fraud cases. Which brings me to the one slightly Freudian observation I wanted to make about Doe v. Reed: How can we explain the vast distance between Justice Scalia’s reading of this case and Justice Thomas? They could hardly have arrived at more different conclusions, about civic courage, privacy, and public threats, and I’d be interested in why you think that is so. It’s not simply that they come out differently on the merits. They actually represent the two most extreme positions on the matter. Only Thomas believes that disclosing names of petition signers always violates the Constitution. And only Scalia asserts it never violates the Constitution. Why such a sharp split between two such frequent allies?
Here’s my back-of-the-napkin suggestion, for whatever it is worth. I think Thomas’ worldview is very much informed by his anxiety about the public. Between his unease about speaking at oral argument, the sense of a public betrayal that pervades his memoir, and his fondness for traveling the country in a refurbished tour bus so he can attend NASCAR races undetected, Thomas has always seemed almost painfully private, inclined to believe that this country will turn on you and destroy you and your reputation in an instant. He’s constructed a public life for himself that is, above all, suspicious of public scrutiny. For his purposes, fairness ends when the public is invited in. Contrast that to Justice Antonin Scalia, who will go anywhere, debate anyone, speak in front of friends or enemies without much concern, and who—to the extent he gives the American public any thought at all—mostly just thinks we are adorably ill-informed and it’s his job to school us on why. And the more of us he can influence the better. Democracy needs him to be brave. Maybe I am reaching here, but reading Scalia and Thomas in Doe side by side, I think you learn far more about their sense of themselves as public figures and their relationship to the great American masses, than you do about their approach to the First Amendment, the Constitution, or even judicial interpretation.
But I am shallow this way.
Anyone have any thoughts going into Monday? Looking forward to chatting tomorrow.