January 31, 2004
Closed Chambers
I'm reading a book now that I think would appeal to many of you. Those that take the Supreme Court seminar at our school read it as a required course; I'm not in the class, but I know the prof and she suggested I read it for kicks. It's called Closed Chambers, The Rise, Fall, and Future of the Modern Supreme Court. I'm less than halfway through (247 of 518 or so of actual text--the rest is footnotes and an index), but here's a little about it. I suggest you pick it up.
It's written by Edward Lazarus, who is currently a federal prosecutor in Los Angeles, but was a clerk for Justice Blackmun in 1988-89. This book was published in 1999. It is clear from the preface that Lazarus tends left and has sharp criticism for the current court and its balkanized factions, but the balance of the book proper is relatively even-handed. (The author greatly admires Scalia's intelligence, writing that he is "brash, didactic, outspoken in his desire to reshape and limit the role of the federal courts, and he promised to bring to the Court more pure cerebral firepower than any Justice since Douglas had gone into decline.") Parts of it are gossip and behind-the-scenes intrigue (for example the sections on Judge Bork's nomination and eventual defeat in the Senate). Much of it is history, giving a good description of the major eras in the Court's history from Chief Justice Marshall to the trail-blazing Warren court, the Burger court, and the current Rehnquist court. It is written for non-lawyers, so it's accessible for everyone. Much of it is stuff that you simply don't learn in law school, for instance the Court's own procedural rules and chamber ettiquite: e.g. how conferences are taken, when and how votes happen, how Justices are selected to write opinions and how others join, other ministerial duties that Justices have for the federal circuits, how many votes are needed to accept a case for cert, etc. Some of the rules are court-made and informally enforced out of deference to tradition; others are statutory.
The first large section of the book deals with death penalty cases. A few chapters choose a single case, and describe everything about it, from the case facts, to its process up through the lower courts and the sometimes last-minute decisions that affect whether that phone will ring or not. Another large section deals with racial equality. (I was particularly inspired by the future Justice Thurgood Marshall's work as a trial lawyer for the NAACP.) An interesting portion deals with the twenty-seven year old Rehnquist, then a clerk to Justice Jackson, and his position on federal habeas corpus and the status of Plessy v. Ferguson (which upheld a law providing "separate but equal" accomodations on a train).
Habeas corpus is a last ditch effort to require the state or the federal government to justify a person's imprisonment. I won't get too far into it, but when a defendant has exhausted his direct appeals through a state court, he may apply for habeas relief in federal district court to get a due process review of his conviction. In 1952, federal courts were using habeas review to subject the work of state judges (particularly those in the south) to sharp scrutiny, often overturning convictions where black people were sentenced to death by all white juries for crimes against whites. The idea is that federal judges, who serve life tenures, are more insulated from political pressures and are generally better educated on Constitutional issues than their state court counterparts. Rehnquist, writing to his boss Justice Jackson, pushed for the strictest habeas review, wanting to make state court judgments rejecting due process claims final and unreviewable. This would essentially perpetuate the good ol boy courts in the south that so grossly ignored the rights of black citizens.
Here's the really shocking part: When Brown v. Board of Education came up for Supreme Court review (which eventually held that separate was inherently unequal), Rehnquist counseled Jackson that Plessy "was right and should be re-affirmed" on much the same states' rights argument that he had put forward against federal habeas. "If this Court," Rehnquist wrote, "because its members are 'liberal' and dislike segregation, now chooses to strike it down, it differs from the McReynolds court [striking down economic legislation] only in the kinds of litigants it favors and the kinds of special claims it protects."
Of course, Brown is one of the most important Supreme Court decisions of all-time, was a turning point in the Court's sometimes turgid march toward equality, and was the most lasting decision from the Warren era.
In 1971, Rehnquist wrote the Senate Judiciary Committee that his memo "was prepared by me as a statement of Justice Jackson's tentative views" and was not "an accurate statement of my own views at that time." A study of Jackson's draft writings in Brown, a comparison with Rehnquist's other memos to Jackson during his clerkship, and the recollections of Rehnquist's co-clerks all contradict this claim.
This is the part that I found most appalling. I think you guys will benefit from the education in this country's highest court, as I have. Just in case you never read this, and are inclined to be cynical, much of this book is downright inspiring. Some battles are narrowly lost, others are impressively and indelibly won. The gossipy parts are interesting, too. Following the publication, the Court has changed the confidentiality governing law clerks to demand absolute secrecy forever. This may be the last book of its kind.
But don't take my word for it! (Amazon here--new for 12, used for 5.)
Eddie got trashed pretty thoroughly when the book came out for giving an "overly politicized" view of the Supreme Court. Then came Bush v. Gore. Since then his critics have been very quiet.
Very good book.
Thanks Dave. Sounds very interesting. But I'm not convinced by your story that Rehnquist is such a scoundrel. It's certainly not impossible to look at Plessy and say that despite its ramifications it was a correct decision similarly one could be critical of Brown whilst acknowledging that what it accomplished was good. Just b/c Brown is significantly important doesn't make it right or wrong. But then again maybe I'm confused or don't fully understand the story.
Well, I'm not sure I believe that CJR is a scoundrel, but it was certainly an interesting story. While one could make the argument that Plessy was correctly decided, its legal underpinnings were so weak that the decision itself is an embarassing point in the Court's history. One could argue that Brown is an example of judicial overreaching, an argument often used against the Warren court, but even by contemporary standards, Plessy is an example of judicial complacency.
Justice Brown's opinion in Plessy essentially argued that neither the legislature or the court could enforce the equality of the races through the 14th Amendment (specifically Due Process and Equal Protection), so why bother. The opinion also implied that black's feelings of inferiority are all in their heads, because the black argument assumes that if "the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption." In other words, if whites were put in shabby facilities and banned from using the "black only" fountains and bathrooms, whites wouldn't feel inferior at all, so why should you?
Harlan's dissent in Plessy is prescient: "In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case."
Question: If there is a Constitutional Amendment, or a Supreme Court decision evaluating the validity of such an Amendment, restricting "marriage" to heterosexual couples, will that decision be similarly anachronistic in forty or fifty years?
This is always the interesting thing for me when thinking about the courts - the tripartite relationship between the laws, the contstitution, and the women and men who mediate between them. The people are products (mostly) of their time, and, despite training as interpreters of the law, read the relatively unchanging constitution from their individual perspectives as people within a place and time. Their job, though, is not to minister their ideas of Justice, but to interpret tradition - thus we can talk about the technical "rightness" of a decision that, were the judges not working within the context of the judicial system, would be obviously malicious, or at least ignorant. The justices exist partially within reality, and partially detached from it, in their own world of rules and procedures and precedents.
I don't think it's accurate to call the Constitution and the other laws separate points of a triangle. The Constitution, by Article VI, is the supreme law of the land. Of course there are various methods of interpretation of the Constitution when evaluating the validity of the other laws. In a sense, you could separate the methods into two philosophies: textualism and originalism.
Textualism gives primacy to the Constitutional text, and originalism believes that one should try to embody the framers' intent.
Textualism generally embodies principles of statutory interpretation. For instance, what does "the several states" mean, or what is the significance of "high crimes and misdemeanors"?
Under originalism, there are "hard originalists" that believe that if the framers didn't have the particular situation before them, then the Constitution doesn't address it. For hard originalists, for example, it would be silly to apply the Constitution to cybersquatting laws. "Soft originalists" transport the framers' intent to the current day and act how they believe they would act. Scalia and Thomas are hard originalists; virtually the remainder of the court is textualist.
A lot of this deals with how one regards the framers' place in American history. The conventional view held that the country was not functioning well under the Articles of Confederation; the govt couldn’t raise money, couldn’t compel states to meet their obligations, the states weren’t honoring the treaty with Britain, and the states were commercially protectionist. The Marxist view is that the Constitution was product of wealthy white men instituting a document to control their wealth (means of production); e.g. the Federalist Papers, where Madison is concerned with factions of the majority overruling the minority of wealthy landowners with projects like debt relief (see Shea’s rebellion). Lastly, the Idealist view is that the framers were brilliant philosophers with great foresight. Obviously, hard originalists tend more towards the latter.
One more thing. David, you point out the importance of precedent when making decisions. This is America's common law tradition (interestingly, Britan has no common law; prior decisions have no bearing on a current case), and it makes judge's decisions dependent on the wisdom of earlier decisions. Of course, they can be overruled in the proper venue, but these laws don't put the judges in their own world; rather, the law becomes the law for everyone. Public policy shapes, however slowly, the development of the common law. (Note the SC overruling Bowers v. Harwick last year.) Except for the hard originalists, most Judges believe in "evolving standards of decency," and the steady progression of the law and erosion of decisions founded in temporal prejudices reflects the evolution of society at large.
That said, I would like to reposit my question from above: If there is a Constitutional Amendment, or a Supreme Court decision evaluating the validity of such an Amendment, restricting "marriage" to heterosexual couples, will that decision be similarly anachronistic in forty or fifty years?
Yes. :)
Without a doubt.
I agree. Thank you for your insightful comments. :)
I don't see how it is possibly within the purview of the SCOTUS' power to "evaluate the validity" of a Constitutional Amendment. If such a traditional marriage amendment is passed then it becomes part of the Constitution and the courts cannot reverse it. With that said, getting a constitutional amendment passed is very difficult. A flag burning amendment and the Equal Rights Amendment are two proposed amendments that enjoyed popular support but could never made it.
There are some amendments that cannot be passed (see Article 5 of the Constitution), but it doesn't seem like a marriage amendment would fall under that. It's a good thing amendments are so difficult to pass. Here's some more on the topic.
Granted, I'm not a lawyer, so what do I know? :)
Dave,
Your summary of differing views of Constitutional interpretations strikes me as a little off. As I understand it Scalia is almost always defined as a textualist and in fact he has said that we can’t be ruled by intent that can only be guessed at. It is he and is ilk that emphasize the idea of interpreting law based on what the text itself says rather than trying to augment its meaning by taking into account the time and place in which it exists. An originalist and a constructionalist is, from what I remember, a type of textualist. If you want to divide up constitutional interpretation into two broad camps it would seem more accurate to speak of those advocating a “living constitution” and those advocating “fixed meaning constitution.” Then again you are the one in law school and from what I can tell you are right on the Plessy thing so maybe I’m all screwed up on this.
I dunno Mike - some people will tell you marriage is just a fancy word for slavery . . . but since we've made it past 1888, I guess we're still pretty much in the clear on that one, regardless.
Only for the wife if you do it right. :)
Yes, Mike. Show her the pimp hand, Mike.
I am the mack daddiest of all married men!