The Breakfast Table

A Low-Carb Term

Dear Paul and Walter:

And so we set off this morning on what will be—unbelievably—the 10th-annual Supreme Court Breakfast Table. Walter, I was just nostalgically looking back at the very first entry you wrote for Slateon June 19, 2002, seemingly carved directly into the grits at Sutton’s Drug Store in Chapel Hill, N.C. We’ve had so many fantastic writers and lawyers join us at the counter in the years since, and I am so very grateful to have you back. Needless to say, when you joined us last year, Paul, breakfast became even more delightful. Thanks for coming back. There is so much to talk about as we close the current term, and also a good deal of non-Supreme Court legal news that has happened in recent weeks that we might also mull.

It’s looking like a low-carb finish to a quiet term, with Monday’s Wal-Mart decision and the Fred Phelps funeral protest case attracting the majority of the media attention this year. Retirements and confirmations are unlikely and everyone appears to be more interested in judicial extracurriculars than judicial opinions. The case everyone seems to be awaiting most eagerly now is the California violent video games case. I confess I am not sure why, beyond the comedic value in imagining Justice Stephen Breyer playing Postal 2(for research purposes, of course!), plus the prolonged delay in releasing the opinion. (It was one of the first cases heard this term.) I wonder if either of you has any thoughts on what makes a case a “blockbuster” for media purposes and whether we get it wrong when we make determinations about which cases best represent the term and the court.

Also, as we await the decisions that will come down this morning at 10 o’clock, I’d like to ask your thoughts on the War Powers Act bombshell that detonated over the weekend. What do you make of the news that President Obama simply rejected the legal views of his senior lawyers from the Pentagon and Justice Department—including Attorney General Eric Holder—when he determined that he could continue the airstrikes in Libya without congressional authorization? I am interested in your thoughts both on the merits and also on the institutional questions all this has raised between the White House and the Justice Department. I confess I find the process here stunning. Walter, you were quoted in the New York Times piece and I wonder if you would amplify what you said. Paul, like Walter you know more about these institutional questions than almost anyone. While we await your thoughts on the question, here’s former Breakfast Tabler Jack Goldsmith weighing in, and here is Bruce Ackerman.

That’s a lot to chew over before your first cups of coffee. But I look forward to your thoughts on these and all other matters jurisprudential, legal and over easy.

My best,