February 11, 2007

Are you, like me, always clicking on news stories about speeches given by Supreme Court justices...

... and finding that nothing interesting was said? It's so predictable. Sometimes I wonder why I have the Google Alerts I have. Actually, I have one for "Rehnquist" that has malfunctioned and become undeletable -- kind of like life tenure, but for an undying reputation.

My Google Alerts are meant to feed me bloggable nuggets. I have some that reliably turn up good material. But the ones for Supreme Court justices regularly turn up stories like this. I'm not picking on Ruth Bader Ginsburg here. But when justices go out and give speeches at law schools they say anodyne things like: "The benefits of a diverse student population are not theoretical but real."

Oh, yes, maybe Justice Scalia will say something cutting, but it will be the same cut we've heard before.

All the same, I'm not asking them to be more interesting. It's not their job to amuse me. In fact, I think they are required to be that special, judicial kind of boring.

Oh, let me be that special, blogger kind of predictable and reprint this anecdote I tell at the beginning of an article called "Late Night Confessions in the Hart and Wechsler Hotel" (47 Vand. L. Rev. 993 (1994)):
Chief Justice Rehnquist visited my law school last year to deliver a lecture entitled "The Future of Federal Courts." The University Theater filled: overdressed alumni in the front rows, respectful students in the balcony, camouflaged professors here and there. I sat in the middle and hunched over a folded-up sheet of legal paper. I scribbled notes and hoped for some insight into the tangled mass of problems I had made my life's work. Would the Chief Justice perhaps explain the Court's new habeas corpus jurisprudence? I wanted a little accounting for Butler v. McKellar, in which he had denied federal court relief to a man who faced the death penalty after a conviction based on a confession that the Court's own case law would, without question, exclude.

The Chief told some jokes, elaborated on his ties to Wisconsin, and discoursed at length about the workload of the courts. The issues were neutral, administrative, managerial, structural.

"Did he say anything provocative?" asked a colleague who had missed the speech.

"He never got any more provocative than to say he's against diversity."

My friend was shocked. "He's against diversity!?"

"Diversity jurisdiction," I said, realizing she was not a proceduralist.
Maybe in the style of an evolving Constitution, the judicial norms change -- even though they retain that sober feeling. It would have been surprising in 1993 if Rehnquist had opined on racial diversity, and now it seems utterly conventional for Ginsburg to say "The benefits of a diverse student population are not theoretical but real."

10 comments:

Peter Palladas said...

Are you, like me, always clicking on news stories about speeches given by Supreme Court justices...

God no Ma'am. I am and am likely to remain a Supreme Court justice speech virgin. Well OK, semi-virgin now as I checked the link. But just don't ask me to go all the way.

If you fancy alternative stimulation I could, if wished, point you towards our own Department of Transport's 'Code of Practice' for...mini-roundabouts. Now that is cute.

Serious stuff too. You don't just chucking these mini-roundabouts about willy-nilly on the highways. No Sir - or Ma'am - no. There are 'issues' to be considered.

Even higher up the foodchain of important information a gal needs is the Department of Health's recent 'Strategy Discussion Document' on 'end-of-life-issues'. (That's death in English.)

Apparently there must be 'quality outcome measures' here - what good strategy could do without 'em:

"Yup, he's dead all right."

"Great outcome Harold."

Simon said...

I do; however --

"It would have been surprising in 1993 if Rehnquist had opined on racial diversity, and now it seems utterly conventional for Ginsburg to say 'The benefits of a diverse student population are not theoretical but real.'"

Would it "seem[] utterly conventional" for a Justice to say "the benefits of a racially diverse student population are illusory and incidental?" It seems more like a double-standard than an evolving conception of judicial propriety.

I have a google alert set up for "Scalia," and while it rarely brings in anything new, it does occaisionally bring up something worthwhile. Since I've given up getting frustrated at articles that call originalism the theory of original intent, I've started making a point of emailing writers who get it right and saying attaboy. Sadly, that way around involves writing very few emails.

dougjnn said...

Well it seems you’ve managed to make blogging use of your Google Alert on speeches by Supreme Court Justices after all.

And rather cleverly.

If not exactly all that enlighteningly.

Revenant said...

it seems utterly conventional for Ginsburg to say "The benefits of a diverse student population are not theoretical but real."

Well, it seems conventional because basically everyone agrees with it.

What people don't agree with is (a) the notion that skin color is by far the most important kind of diversity (as opposed to, say, diversity of opinion) and (b) the notion that diversity is such a great benefit to a university that it offsets both the costs of admitting mentally inferior students of the correct color(s) into the student body and the harm done to those students barred from admission because of their race.

Richard Fagin said...

How can they scrap diversity jurisdiction in toto short of a Constitutional amendment? "The judicial power of the United States shall extent to all cases and controversies...." Not may, shall. Congress can take away the Supremes' power to hear appeals from diversity cases, and they can divest the trial courts of original jurisdiction, but on the face of Article III doesn't there have to be at least one federal forum to hear diversity cases?

Ann Althouse said...

Richard: Article III gives Congress power to define the jurisdiction of the federal courts in the "ordain and establish" clause and the "exceptions and regulations" clause, which have been interpreted to mean that the whole judicial power does not have to be part of the current power of the courts. This is a legislative check on the judiciary, and there are a lot of arguments about the scope of the check. This is a big subject in Federal Jurisdiction (a subject I've taught since 1984).

Simon said...

Ann - Sheldon v. Sill, right?

Ann Althouse said...

That's right (re "ordain & establish"... for the jurisdiction of the lower federal courts).

Richard Fagin said...

Thanks for that, Prof. Althouse. I'd never heard the principle expressed as that all of the judicial power doesn't have to presently be embodied somwhere in the power of the established Art. III courts. I guess that's like Congress choosing not to exercise any of its Art. I, sec. 8 powers, which of course it is free to do.

Ann Althouse said...

Yes, well put. Except Congress gets to choose for itself and for the courts.