I hope you had a pleasant weekend. We will have a lot to muse about over the next few days since the Supreme Court has seven decisions left to announce. As you noted, the most important are Hamdi, Padilla, and Rasul, which raise in three different contexts fundamental questions concerning judicial review for detainees in the war on terror. Two other cases, Patane and Seibert, are confession cases. Congress’ third try at regulating indecency on the Internet will be measured against the First Amendment in Ashcroft v. ACLU. And Alverez-Machine will determine whether aliens can bring suit in the United States for human rights violations.
The handing down of Supreme Court decisions is an unusual ritual. Virtually every other court in the country makes its decisions public by simply having a stack of printed copies of those decisions placed on some counter in the courthouse (and, more recently, by posting opinions on the court’s Web site). But that is far too prosaic for the U.S. Court, where the announcement of decisions is ceremonial showtime. The faithful are hushed to silence moments before the justices appear through the burgundy curtains to take their now familiar places. The chief justice calls upon the author of each majority opinion to summarize its content. (The order in which cases are announced is determined by the seniority of the justice writing the majority opinion: junior justice first, chief justice last.) Sometimes a dissenting justice who feels passionate that the majority is wrong will decide to read his or her dissent from the bench; these are rare and usually dramatic moments.
You can often tell from the first sentence uttered from the bench where a decision is heading. Take criminal cases, for example. If the conviction is being overturned, the opinion will start with something exalted, like, “From the time of the Magna Carta. …” But if majority opinion begins, “It was a dark and stormy night as Mary Jones walked home from her very first prom …” you know the miscreant who did Mary harm is headed straight for the penitentiary.
I once had the startling experience of sitting at counsel table ready to begin arguing a case when the court handed down its decision in a case I had argued earlier in the term. Just as I was about to stand to defend the Line Item Veto Act in May of 1997, the chief justice intoned, “Mr. Justice Stevens has the opinion in William Jefferson Clinton v. Paula Corbin Jones.” (I had argued Clinton v. Jones the previous December on behalf of the United States. Our position was that because of the unique responsibilities of the president, any civil litigation against him should be postponed until his term in office was complete.) As I stopped breathing, Stevens cleared his throat and began with something like, “The case we decide today involves an individual who happens to be serving as president.” I turned and whispered to my deputy, Seth Waxman, “We’re dead.” (I actually may have used a more “Cheney-esque” expression.)
Last term, the highest moment of drama was Justice Kennedy’s announcement of the court’s opinion striking down the Texas Homosexual Sodomy Law. The result was not unexpected; the drama came from how deeply Kennedy embraced gay men and lesbians as part of the national community.
Before this week’s deluge of opinions begins, I should take care of unfinished business by responding to your question about the unusual lineup of justices in the decision in Blakely v. Washington, which imploded state and federal sentencing guidelines. Blakely pleaded guilty to kidnapping his wife; at sentencing the judge found that he acted with “deliberate cruelty,” which permitted the judge to add three additional years to his sentence under Washington state’s typical sentencing guidelines. The Supreme Court held that allowing such a sentencing factor to be determined by a judge rather than a jury violated Blakely’s right to trial by jury. As the dissenters note, “tens of thousands of criminal judgments are in jeopardy” because of this dramatic ruling.
So, who was responsible for this? Justices Scalia, Thomas, Stevens, Souter, and Ginsburg. You suggest that this is a strange fivesome. It’s not. This is the split between the five legalist justices and the four pragmatist justices. There are (speaking very roughly) two right legalists (Scalia and Thomas) and three left legalists (Stevens, Souter, and Ginsburg), and in Blakely they joined forces to outvote the court’s four most pragmatic justices: Breyer, O’Connor, Kennedy, and the chief.
The prevailing opinion is neither left nor right but legalistic and doctrinal. It is full of talk of constitutional text and history. It is situated in years 1769, 1771, and 1789 and invokes Blackstone, Adams, and Jefferson. The opinions of the dissenting four are situated in 2004, and the rhetoric is strikingly different. Superpragmatists O’Connor and Breyer, joined by Kennedy and the chief, fault the legalist majority for “doctrinaire formalism” and choose to speak instead of “institutional considerations,” “reliance interests,” “simple economics,” and, above all, “practical consequences.” This same split occurred a term or so back: Scalia, Thomas, Stevens, Souter, and Ginsburg concluded that legal doctrine precluded a pragmatic solution that Breyer, O’Connor, Kennedy, and the chief believed the asbestos-litigation crisis demanded. We will see this split again.
Talk to you later,