The Breakfast Table

Are We All Legal Realists Now?

Dear Walter,

Welcome back to this, the best part of having the best job in the world. Can this possibly be our sixth year doing an end-of-the-Supreme-Court’s-term analysis? Good grief. I think that makes it our constitutional iron anniversary. Will Monday morning find you back at Sutton’s Drugstore? Or will you be joining me on Maryland Ave., where the press corps increasingly obsesses over grumpy dissenters who keep reading things aloud from the bench?

So much to talk about this week, including, I suppose, the fact that there is so little to talk about, given the record low number of cases heard this term. Is that a problem in your view?

We are both, of course, on tenterhooks awaiting the big desegregation/affirmative-action rulings, and I am anxious to hear what the guys at Sutton’s have to say about the implications of that. There are also some interesting cases to come down dealing, among other things, with campaign-finance reform; taxpayer standing to sue the president over religion; and of course, whether “Bong Hits 4 Jesus” represents important, protected student speech.

Meanwhile, the Legal Commentariat’s search for the One Big Theme for the 2006 term seems to have settled on this: The Roberts court is hopelessly split down purely ideological lines, and earlier promises of minimalism, restraint, and collegiality are pretty much down the toilet. Here’s Jeff Toobin’s assessment. Here’s Eddie Lazarus’. Here is Jan Crawford Greenburg on the epic battle between the Roberts court and the Stevens court. And to anchor this take to specific cases, here is Tony Mauro on last week’s decision in Bowles v. Russell, a case that appears to be symptomatic of the crabbed hyper-technical way the Roberts Five will hereinafter deal with habeas petitioners. So, is it true that the enduring lesson of the 2006 term is that, as Toobin suggests, “When it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices”? Are we all legal realists now?

But before we get to the Big Themes, let’s do something we’ve been wanting to do for years. Walter, you are not just one of the finest appellate advocates in the bar, you’re also a rocking constitutional-law professor. And every year you and I write these end-of-term reflections assuming (wrongly) that everyone who reads them went to law school. Since we still have some hours to kill before Monday’s decisions, I wonder if I can impose upon you to teach our nonlawyer readers enough constitutional law to get them through the week. It seems rather a Slate-y endeavor—”The U.S. Constitution: Just the Juicy Bits.” So, what say you, Obi-Wan?