"Going home after a long day, I cannot help but observe that those of my colleagues who were protesting so vigorously that the Court’s judgment today will do it irreparable harm..."

"... have spared no pains – in a veritable blizzard of separate dissents – to assist that result. Even to the point of footnote 4 in Ruth’s offering (I call it the Al Sharpton footnote), alleging on the basis of press reports 'obstacles to voting disproportionately encountered by black voters.' I am the last person to complain that dissents should not be thorough and hard-hitting (though it would be nice to have them somewhat consolidated). But before vigorously dissenting (or, come to think of it, at any other time) I have never urged the majority of my colleagues to alter their honest view of the case because of the potential 'damage to the Court.' I just thought I would observe the incongruity. Good night. Sincerely, Nino."

Wrote Justice Scalia to the rest of the Supreme Court on December 12, 2000, quoted in a CNN article by Joan Biskupic, "New documents show how Sandra Day O’Connor helped George W. Bush win the 2000 election."

To paraphrase: I'm all for vigorous dissents — I do them myself — but I dissent to tell the truth as I see it, and you just did it to say we ought shrink from the truth. Ha!

ADDED: That headline is terrible.  The article is about how Sandra Day O’Connor kept Chief Justice Rehnquist from having a majority for deciding the case the same way on a different legal theory. Either way Bush would win, so she didn't "help him win."

"When Justice Stevens wrote his opinion in Chevron, he meant to solve a knotty problem, but he did not mean to produce a major ruling, or even to make any change in the law."

"Justice Harry Blackmun’s private papers, which are now public, show that members of the Court found the case to be highly technical and difficult to decide.... Revealingly, Chevron had hardly any influence on the Supreme Court in its first years. Everything changed after Justice Scalia joined the Court in 1986 and became Chevron’s champion, urging that it inaugurated a new approach for courts to apply in reviewing the interpretations of administrative agencies. Justice Stevens repeatedly disagreed with him; he insisted that Chevron did not make any big change in the law, and that questions of law were for courts, not agencies. By the early 1990s, Scalia had prevailed: whenever an agency’s interpretation of a congressional enactment was at issue, Chevron was widely understood to give the administrative state a lot of room to maneuver. If you worked at a federal agency at the time, Chevron was your best friend." 

Writes Cass Sunstein in "Who Should Regulate? Cass R. Sunstein The question of whether federal agencies or the courts should have the right to interpret legislation may seem technical, but it significantly affects the power of the government" (NYRB)(reviewing "The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State" by Thomas W. Merrill).

For those who are uninitiated and yet not utterly bored — a small group, I'm thinking — the Chevron case provides — in Sunstein's words — "that when the language of statutes enacted by Congress is ambiguous, federal agencies are entitled to interpret it as they see fit, as long as their interpretations are not unreasonable."

Don't miss this casual phrase: "Justice Harry Blackmun’s private papers, which are now public..."  Was that treacherous leakage? The leakage was by Blackmun, of course, but I'm still asking if making all those notes and drafts public was an example of "the gravest, most unforgivable sin." Shouldn't we have access to these materials to understand why these decisions come out the way we do? Why should we be controlled by the careful wordings and omissions of the final version?

And I see that Chief Justice Roberts referred to Blackmun's papers in the oral argument about overruling Roe last December!

Joan Biskupic wrote about it last December, right after the oral argument, in "Why John Roberts cited the private papers of the justice who wrote Roe v. Wade" (CNN):

"Shed of the black robe, he wore khaki shorts, a short-sleeved blue and orange striped shirt and sandals. Still, he remained a cautious conversationalist, declining to speak of the court's confidential deliberations."

From "Exclusive: Stephen Breyer says he hasn't decided his retirement plans and is happy as the Supreme Court's top liberal" by Joan Biskupic (CNN).

Are you cranked up about whether or not Breyer retires?

Yeah! He needs to withdraw before it's too late and let Biden appoint a young liberal.

Yeah! I hope he hangs in there so Biden can't appoint a young liberal.

No. He's fine where he is, but if he wants to go, I'm fine with that too.

No. I won't be prodded to get emotional about all this partisanship.

 

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POLL RESULTS:

Did Chief Justice John Roberts decline to preside over the Senate trial of the Trump impeachment?

I'm trying to understand "John Roberts ducks the spotlight by skipping the second Trump impeachment trial" by Joan Biskupic (CNN). 

Ducks by skipping?!! That's a daffy way to put it. I think it means John Roberts arrived at the view that there was no occasion for the Chief Justice to preside, and therefore he has a duty to refrain from participating. That's not ducking and it's not skipping. When he presides, it's because he must, and when he refrains, it's because he must. It's based on an interpretation of law. 

But I can't tell, reading this article, if he was asked to preside and communicated a refusal, or if Senate Democrats decided that the Constitution, Article I, Section 3, does not provide for a role for the Chief Justice. 

The article says "Sen. Patrick Leahy, a Vermont Democrat and the president pro tempore of the chamber, will preside for Trump's second impeachment trial." So, it seems a decision has been made, but did Roberts participate? Did the Senate Democrats want him, or are they, on their own, taking the opportunity to exclude him?

Biskupic writes that the constitutional text is, "When the President of the United States is impeached, the Chief Justice shall preside," which obscures the argument Roberts-excluders must make. The actual text is "When the President of the United States is tried, the Chief Justice shall preside." The argument must be that Trump is no longer the President of the United States, therefore there's no role for the Chief Justice. That also provides a foundation for an argument that there is now no occasion for a trial of impeachment — impeachment is a procedure for removing the President — and it is an abuse of power for the Senate to try the former President, deprived of the safeguard of the Chief Justice as a neutral arbiter. 

It would be interesting to know what Roberts thinks about these things, but I can't even tell if Roberts was involved in the decision to leave it to Leahy. Biskupic writes:

Since the US House of Representatives impeached Trump on January 13, Roberts has declined multiple requests for comment on his responsibility, if any, for a trial after Trump left office on January 20.

Has he declined to communicate with the Senators? 

Leahy had earlier said that "the first choice" for presiding officer would be the chief justice...

So that must mean that Leahy did not interpret Article I, Section 3 to exclude the Chief Justice, and I would argue that must mean that there cannot be a trial. If the Chief Justice is permitted, then he is required. 

... and [Leahy] would not reveal on Monday when it became clear that the duty would fall to him...

If the Chief Justice is required, then what Leahy is about to do is not a duty. Taking on a role that is not yours under the Constitution is an abuse of power. 

... telling reporters only that he was "up to the responsibility."

Whether he's up to it or not is irrelevant, but it's not a "responsibility" unless the Constitution assigns him that role. If he sought Roberts's participation, then he thought it was Roberts's role. You can't have it both ways! 

Roberts had no comment on Monday on Leahy's announcement of his role or dealings with senators....

That's not surprising, but it leaves us to puzzle out the meaning. I wonder what the anti-Trump Senators really want? It seems so unfair to have Leahy presiding, and it's going to look hyper-partisan to people, especially to the 74 million Americans who voted for Trump. The easy out is to say the impeachment is moot, because Trump is out of office. I understand why Trump opponents want to proceed against him anyway, but I don't think it will go very well for them. Trump is out of office. Leave him alone.

UPDATE: The Biskupic article now has a correction of the error I wrote about. The disclosure of the correction says:

CORRECTION: An earlier version of this story incorrectly referenced the Constitution's terms about the Senate trial. The passage reads, "When the President of the United States is tried, the Chief Justice shall preside."

Oh! I'm surprised at myself, forgetting the first Monday of October! Did anyone notice the actual Supreme Court cranked back into gear today?

The empty seat is so interesting that maybe you, like me, forgot to hail the return of the actual Supreme Court today. I'd given in a thought now and then, maybe last week, but it slipped my mind today until just now.

Here's Joan Biskupic at CNN, noting the return of the Court, but forefronting the unfilled seat: "An empty space and an idle microphone: The Supreme Court returns."

The associate justices repositioned their tall black chairs on the two sides of Roberts, in their new order of alternating seniority without Kennedy... At the end of the bench, where the new justice would sit, was an empty space and idle microphone.

In their first case, testing the reach of federal environmental law, the eight appeared to be dividing along familiar ideological and political lines, conservatives versus liberals.... [T]he high court [might fail] to set a national standard on some bubbling controversies, whether regarding the Endangered Species Act, in dispute Monday, or related to a Tuesday case brought by a Death Row inmate with dementia, when elderly convicts may be exempt from capital punishment....

In a practical vein, 4-4 splits may not be the only consequence for a shorthanded court. Without a full slate of justices, they may also avoid taking up substantial new questions, as happened when the Senate had stalled on Obama nominee Judge Merrick Garland. Among the contentious issues currently pending for possible review is whether federal law prohibiting sex discrimination covers bias based on sexual orientation and gender identity....

On not taking a second look at that UT affirmative action case.

Linda Greenhouse writes about the potential for the Supreme Court to look once again at Fisher v. University of Texas — the affirmative action case that it sent back to the Court of Appeals in 2013. Greenhouse has written before to express her view that the Supreme Court will not (should not?) take the case again. Last July, after the 5th Circuit opinion came out, she wrote: "unless the new appeal offers a plausible vehicle for getting rid of affirmative action... why would the justices bother?"

But on this blog, we were talking about Richard D. Kahlenberg's contention that the 5th Circuit opinion "is likely to invite review—and reversal—of the lower court’s decision."  Kahlenberg said:

Justice Kennedy’s opinion in the 2013 Fisher decision made two big substantive points and one stylistic one, all of which the Fifth Circuit’s majority opinion, written by Judge Patrick E. Higginbotham, oddly defies.

I summed up what Kahlenberg said were the 3 things Kennedy said that Higginbotham defied:

... Higginbotham "dismissed Kennedy’s emphasis on race-neutral alternatives," "blithely asserted"  that alternatives like socioeconomic affirmative action "wouldn’t work," "paid lip service to Kennedy’s requirement that courts give 'no deference' on the question of whether alternatives can produce 'sufficient' racial diversity," failed to require the University to give definition to its goal of "critical mass," and "took an unnecessary dig at Kennedy’s contention that the Fifth Circuit had misapplied the Grutter precedent."

Okay, now back to Greenhouse's new essay on the subject of why the Supreme Court should leave Fisher II alone. Greenhouse says that the 2013 Fisher decision seems to have been "the result of some kind of compromise":

But what actually happened inside the court remained unknown outside until the publication this past fall of a new book about Justice Sonia Sotomayor by Joan Biskupic, a longtime legal journalist in Washington, D.C. The book, “Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice,” discloses that the original vote was 5 to 3 to disallow the Texas plan.

Wow! I don't remember reading that before.

Chief Justice John G. Roberts Jr. assigned the majority opinion to Justice Kennedy. The dissenters were Justices Ginsburg, Sotomayor and Stephen G. Breyer. As the senior justice in dissent, Justice Ginsburg gave Justice Sotomayor the task of writing a dissenting opinion that would speak for the three.

Notice the name Linda Greenhouse omits: Elena Kagan. Kagan — according to Biskupic — voted along with Roberts, Scalia, Kennedy, Thomas, and Alito to find an equal protection violation in the UT affirmative action policy. I guess I'd better get Biskupic's book (which I must have bypassed because I don't need any more detail on Sotomayor's rise to power). [CORRECTION: No. Kagan recused herself. I should have remembered... or at least noticed that 5 + 3 ≠ 9. Now, once again, I'm free not to get Biskupic's book. ]

But let's stick with Greenhouse:

According to [Biskupic]’s account, Justice Sotomayor circulated a proposed dissent that was passionate and — my extrapolation — polarizing. With “Sotomayor as agitator, Breyer as broker, and Kennedy as compromiser,” Ms. Biskupic writes, there ensued a weeks- and eventually months-long effort to “lower the temperature” and produce an opinion that justices in the competing camps could sign. It succeeded, as Justice Kennedy gradually inched toward the minimalist opinion that Justice Sotomayor was willing to accept. (Justices Antonin Scalia and Clarence Thomas signed the Kennedy opinion as well, but also wrote separate opinions to make clear that they would relish the opportunity to overturn the court’s affirmative action precedents.)

Greenhouse guesses that the polarizing Sotomayor opinion was a lot like what we saw from Sotomayor last year in her long fervent dissenting opinion in Schuette v. BAMN (the case about Michigan's new state constitutional provision banning affirmative action).

Obviously stung and undoubtedly annoyed, Chief Justice Roberts responded in his own opinion that it “does more harm than good to question the openness and candor of those on either side of the debate.”

Against that background, does the court really want to invite a replay of Fisher v. University of Texas? 

Why should Sotomayor's willingness to let loose with some passionate, high-handed rhetoric affect which cases the Court chooses — especially after that Fisher I compromise — if that's what it was — ultimately failed to stop her from saying all those things anyway? We already heard it all in Schuette, so that seems to clear the way for the Court to finish resolving the University of Texas controversy. The 5th Circuit doesn't seem to have responded to the nudge the Court gave it in Fisher I, so now it's the Supreme Court's turn again. Why not?

As the Fifth Circuit opinion makes clear, the case presents a Texas-specific issue. The 10 percent plan is required by Texas law, and no other state has anything like it. 

It was just as Texas-specific the first time up, but there is a larger issue, and it was perfectly apparent back in Fisher I: How seriously must courts take the strict scrutiny requirement that considering race must be necessary to the achievement of classroom diversity?

Writing about the law -- traditional reporting and blogging.

Joan Biskupic gave the opening address today at the 7th Circuit Judicial Conference. Her theme was the importance of traditional journalism in covering the Supreme Court. She described sitting in the Supreme Court to hear oral arguments and the announcements of opinions. She's there. She has the sense that she is witnessing history and creating the historical record.

But a Supreme Court decision isn't an event that takes place in the courtroom. There is value to a reporter's description of how passionate a justice sounded reading from a dissenting opinion or the dubious expression on a justice's face during oral argument, but there is no reason to elevate this writing over a law professor's analysis that is based on reading opinions and argument transcripts and drawing on a long, scholarly study of the Court's work. What has changed and what is challenging traditional journalism is that, with blogs, law professors now write about the cases on the same day. We get the cases and argument transcripts right away, so no one needs to rely on a reporter who was physically present to hear something.

Why isn't it better to have a horde of legal experts receiving the same-day texts and writing whatever they think deserves to be written? One answer is that newspapers exist and must contain articles reporting the news, including the news from the courts. But newspapers don't have to exist and they don't necessarily do the best job of providing information about the law. As Biskupic said, there are very few regular reporters on the Supreme Court beat. These reporters cover all the cases, but law bloggers write about what they choose. Some of us stick to specialized areas of law. Some of us write extensively when the case deserves it and say nothing about other cases. Why is it better to have the same generalist writing about all the cases and providing a steady stream of articles of the same length and depth?

Of course, journalists portray themselves as neutral and strictly governed by professional standards. Meanwhile, bloggers can do anything. But nothing stops a blogger from reporting the work of the courts in a neutral way, following a journalistic approach. And journalists have their biases. Bloggers may provide opinionated commentary, but we may expose the places where the traditional reporters are displaying bias. Isn't it better to have more voices in the mix? There's this notion that the bloggers are distorting what used to be a purer process of delivering the news about the cases, but I think it's more accurate to say that the process only used to look pure because a few reporters were monopolizing the flow of information.

Biskupic noted that a traditional journalist may be asked to blog on her newspaper's website. She, in fact, experimented with a blog -- not visible to the public -- on the USAToday site, and she admitted she wasn't cut out for it. It was hard for her to be chatty and spontaneous, and the idea was abandoned. "I don't have a blogger personality," she said.

Later, there were two panels. The first, discussing traditional media, included David Savage and Jonathan Turley as well as Biskupic. The second, moderated by 7th Circuit judge Diane Sykes, had -- along with me -- Eugene Volokh, Christine Hurt, Richard Garnett, Jason Czarnezki, and Howard Bashman. I'll just do some highlights.

One subject on the first panel was the way some Justices go out and about doing public appearances. Biskupic said: "Justices get in trouble when they go on the road. Well, we like when they get in trouble."

Someone on the first panel complained about how boring it is to sit through confirmation hearings. Now, see, here's why blogging is better! You don't sit in the room getting bored. You're home with the TiVo, making strategic decisions about which parts to watch and commenting only where you have something to say. The reporters see the hearings as mindnumbing blather because they have to produce a news story. Something happened, so there must be an article commemorating the event. Bloggers pick what they want to talk about it. There are no particular spaces to be filled. Just a stream to carry on.

About John Roberts and his family, Turley said: "They looked like they were raised hydroponically by Karl Rove."

Savage picked up the theme of journalistic neutrality. He said journalists represent a "Green Zone" where there is no "pitch to the left or right." And he wheeled out the conventional opinion about blogs: Everyone goes to the blog that expresses the bias they like. The point here is that you need traditional media to keep people from cocooning inside their preexisting beliefs. But newspapers can be worse. People who rely on newspapers can't pop around looking for variety. They are stuck with that one reporter, decade after decade. And one of the things bloggers do is point out the slants and distortions in the newspaper articles.

I'll have to write something about the blogger panel later, because the cocktail reception is already under way, and the dinner is coming up soon. Speaking at the dinner: Justice John Paul Stevens and Solicitor General Paul Clement. So I've got to get my act together and make it to the dinner.

Morning break at the 7th Circuit Conference: Trad media has spoken and the bloggers are up next.

There wasn't a laptop in sight on the long tables lined with judges, so I couldn't type up a post while I listened to Joan Biskupic, David Savage, Jonathan Turley, etc., talk about what it's like to cover law -- really, the Supreme Court -- in these days when new media is sloshing all over into their territory. But I took a lot of notes, which I will work up over the course of today. I've got to go on and do the blogger panel momentarily -- I'm taking the break in my hotel room -- so I'll just say that I have a lot of objections to the way they characterized themselves and us bloggers. Some of that will come out, I hope, in the upcoming panel, which I'll say more about soon.

"It's like a highly stylized Japanese theater."

Former Solicitor General Ted Olson describes Supreme Court oral argument. "The justices use questions to make points to their colleagues." (USA Today's Joan Biskupic provides the detail.)

Supreme Court invalidates Guantanamo military commissions.

SCOTUSblog reports:

The Supreme Court ruled on Thursday that Congress did not take away the Court's authority to rule on the military commissions' validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the "military commissions" illegal under both military justice law and the Geneva Convention. The vote was 5-3, with the Chief Justice not taking part.

I don't have the text of the opinions yet. I'll have more soon.

UPDATE: Here's the opinion. Here's a good summary in the Washington Post. I found this especially interesting:

For the first time in his 15-year tenure on the court, Thomas took the unusual step of reading part of his dissenting opinion from the bench. The court's willingness "to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous," he said.

And let me just say something about the interpretation of the jurisdiction statute. I know a lot of readers are finding Justice Scalia's interpretation persuasive:

In a dissenting opinion, Scalia pointed to congressional enactment on Dec. 30, 2005, of the Detainee Treatment Act, which provides that as of that date, "no court, justice or judge" shall have jurisdiction to consider an application by a Guantanamo detainee for habeas corpus, challenging his detention.

But the majority's straining to read the DTA to preserve jurisdiction does not at all surprise me (a federal jurisdiction scholar). It is standard practice for the Court to read statutes that purport to cut back jurisdiction in a way that is defensive of the role of the judiciary. Justice Stevens's opinion discusses some of those cases. He doesn't even reach the question of whether the Constitution permits the cut back. This is an issue that he avoids -- in the style of many other cases.

In a concurring opinion, Breyer strongly disputed the dissenters' assertion that today's ruling would, as Thomas wrote, "sorely hamper the president's ability to defeat a new and deadly enemy."

"The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a 'blank check,' Breyer wrote. "Indeed, Congress has denied the president the legislative authority to create military commissions of the kind at issue here. Nothing prevents the president from returning to Congress to seek the authority he believes necessary."

And he'd better get crashingly clear statutory language.

IN THE COMMENTS: Simon says Thomas had read dissents from the bench before. He cites Stenberg v. Carhart, the "partial birth" abortion case. I looked up news reports of the time and found this in the Washington Post, June 29, 2000, Pg. 9A ("Abortion debate will continue to rage," by Joan Biskupic):

The sensitivity of the abortion issue was evident in the court's outpouring of opinions in the Nebraska case, Stenberg vs. Carhart. Of the nine justices, only David Souter did not write an opinion. Antonin Scalia, Anthony Kennedy and Clarence Thomas were moved to read portions of their angry dissents in the Nebraska and Colorado cases from the mahogany bench.

It's strange for the WaPo to have made that mistake today. You'd think you'd definitely check before saying something happened "[f]or the first time."

AFTERTHOUGHT: It will be interesting to see how Hamdan plays out in the political arena. The case invites more legislation, and members of both parties have got to be furiously cooking up proposals. I suspect that those who are most disappointed by the outcome of the case have the most political advantage looking toward the next few months.

How Brennan and, later, Breyer affected O'Connor.

From Cliff Sloan's piece in Slate about Joan Biskupic's new biography of Justice O'Connor:

[S]ome of [what is in the book] is new—an apparent rivalry between liberal lion William Brennan and O'Connor for influence on the court, and Brennan's clumsiness in his maneuvers; the effectiveness of Justice Stephen Breyer in reaching out to her. With Potter Stewart's departure in 1981 and O'Connor's replacement of him, Brennan seemed to have lost an important occasional ally. He viewed his new colleague with suspicion, and—though he is often thought of as the consummate court politician—he made the same mistake that Scalia would make several years later: He caustically attacked her, and if anything seems to have driven her away. Brennan's approach to cases became particularly arch and unyielding in his later years, and even when he had O'Connor's vote he could not get her to join his opinions. Breyer's style would prove far more hospitable to O'Connor than Brennan's broadsides; like her, he was attuned to the particularities of each case and searched for common ground.

The subject of the relationships among the justices and the effect on the decisions is highly interesting -- and exceedingly hard to study.

"It's crunch time for some of high court's biggest decisions."

Joan Biskupic has this in USAToday. (Via How Appealing.)

Among the cases to be decided are those that test whether certain public displays of the Ten Commandments are unconstitutional; whether states may legalize the use of marijuana for medical purposes; and whether companies that produce Internet file-sharing programs can be held liable for illegal copying by consumers.

I hope we get something big today.

News reports of the Scalia-Breyer debate.

The previous post is my TiVo-blog of the C-Span feed of the Scalia-Breyer debate. Now let's look at some news reports. Here's Joan Biskupic in USA Today. She includes this relevant info:

Some members of Congress have denounced such references. Last year, Rep. Tom Feeney, R-Fla., introduced a resolution criticizing the court for citing foreign legal authority. The resolution drew several co-sponsors but was not adopted by the full House. Shannon Conklin, a spokeswoman for Feeney, said Thursday that he intends to reintroduce the resolution.

I note that there was some discussion about whether or not to cite the law. Justice Breyer's point was: if I'm going to read it and take it into account, what's the big deal about citing it? Feeney's resolution wasn't mentioned, but it was implicitly diminished. To cite or not to cite did not come across as a very important point. Justice Scalia didn't harp on it. The main disagreement between the Justices is the same one it always is: is originalism required?

Here's the Washington Post report, from Charles Lane, who's fascinated by the chance to see the two Justices interacting with each other:

It was the first time in recent memory that two sitting justices representing opposing factions on the court took their disagreements so completely public, and the effect was, at times, electrifying....

The two men were a study not only in contrasting legal philosophies but also in contrasting personal styles. Scalia was characteristically intense, frequently shifting to the edge of his seat and punctuating his thoughts with brisk gesticulations. Breyer was all professorial cool, relaxing back into his easy chair and sipping spring water from a long-stemmed glass.

I would add that even though the two Justices present themselves differently and take different positions on how to do constitutional interpretation, they appear completely relaxed and friendly with each other. Neither has the slightest hope of convincing the other he's right, and they seem used to living with that situation.