Well, Dahlia Lithwick has done it. She's made me annoyed/angry/hacked off enough to make a real post. Occasionally, she and former acting Solicitor General Walter Dellinger have "conversations" about the Supreme Court. Since we are currently at the end of the Court's term, Slate
has dusted off this feature
for our reading pleasure.
If you are really interested, you can scan through all of the entries. They're fairly readable and have some interests parts. I'm happy to see that Dellinger sees McCain-Feingold as being Constitutionally problematic ("...I don't see how you can limit "independent expenditures" intended to influence elections without limiting the speech of those who own the New York Times, the Washington Post, and the Fox empire as well. And that's a place we simply can't go.") I'm not shocked that Lithwick agrees with Souter, cursing those "sham issue ads" and damning anyone who dares pool their money in the corporate form to speak on an important political issue. She strikes me as one of those people who gets all twitchy and bug-eyed when talking about those "evil corporations."
Dellinger also says that Hein
was properly decided
. I always knew I liked this guy, even if he was acting SG under Clinton. I saw him talk at a Federalist Society event, and he seemed like an affable guy. I'm kicking around the idea of a Hein
post, because I (like Dellinger) don't see how the case could have come down differently. He would also overrule Flast v Cohen
, which I guess makes those evil conservatives on the Court not so crazy.
The real reason I wanted to post about this conversation was highlighted over at Volokh
by Prof. Kerr. Lithwick talks about
the chorus of "They're so mean!" exclamations by the Left about the Roberts Court. Lithwick doesn't think the meanness factor is really the issue, but she's struggling to put her finger on her real problem with the Roberts Court...
Now maybe the Roberts Five [Roberts, Scalia, Kennedy, Thomas, & Alito] really are bilious and rageful. In which case I guess we should call them that. But I didn't think calling conservatives "mean" was a smart tactic during those confirmation hearings, and I don't think it's smart now. Still, I am struggling now as I was back then to define what judicial quality Roberts and Alito seemed to lack.
. . . So is that what the court needs today? More pragmatists? Some of the Fray posters have suggested it simply needs fewer lawyers. Or perhaps it just needs fewer lawyers who came up (forgive me) through the executive branch? I have come to believe that it definitely needs more women and people of highly divergent life and career experiences—and no, Harvard vs. Yale law schools is not "highly divergent." But is there a name for this thing we liberals want to see more of on the court? Something that isn't merely the opposite of "mean"?
My view is that focusing on a judge's personal "niceness" or "compassion" or affection for "the little guy" is a mistake. That's not a legal theory so much as what I look for in a babysitter. I think that the meanness we're seeing, to the extent you can call it that, has to do with the Roberts Court's very cramped and unforgiving view of the role of courts. I once wrote that Roberts seems to believe that there was "no problem too big for the courts to ignore." I wonder if that is part of the sea change we are witnessing.
Prof. Kerr opened the question up to the Volokh readers, and they're having a field day with it. I'd like to add my analysis.
Lithwick wants a Justice who is not a judge in the purest sense of the word. She wants a Justice that will take emotion into account when deciding a case. She wants them to appeal to "what is right" or "what is just." Of course, those things are defined by her worldview and her political preferences. This "unforgiving role of the courts" that she mentions is so jarring to her because she wants (and I pain to use this word) an activist court. She wants a Supreme Court that will stick its nose in places where I (and those of a similar philosophy) think that the courts have no business.
case is a perfect example. Lithwick wanted the taxpayers to have standing to sue over the faith-based programs. Why? She doesn't like the programs. That darned Bush and his religious nature really sticks in some craws. She thinks the programs violate the Establishment Clause. Fair enough. But what's her solution? Do whatever it takes to get a challenge into the courts ASAP, even if it means expanding the very narrow and very wrong Flast
taxpayer standing exception.
The majority of the Roberts Court won't do that, though. Sure, Kennedy might get a little soft at times, like in Massachusetts v EPA
, but he's stuck with the conservatives a heck of a lot this term. Generally, the majority won't fall into that trap. They'll enforce rules, like the standing requirements, and read exceptions to those rules, like Flast
, narrowly. That's the source of Dahlia's complaints. Lithwick sees a problem (ex. the faith-based initiatives) and wants something
to be done about it by the Court. The Roberts Court won't play that game, so she's left stamping her feet in frustration. The proper way to deal with those programs is not through Flast.
Find someone with an actual injury that satisfies the
standing requirements or use the elected branches to change the policy. Procedure is important.
She'll deny that this is really want she wants, as she does in the conversation with Dellinger. Look at what she says about Flast
But I am not sure that Flast v. Cohen is so readily dismissed as a constitutional disaster: a naked judicial power-grab that finds the constitutional wrongs first and only then invents a theory of standing to advance it.
Emphasis added. That is exactly the kind of jurisprudence that Lithwick wants from the Court. Then, she talks about how the Establishment Clause is different because forced religion makes Americans "nuts." Seriously? Because Americans go bonkers over forced religion, we can throw open the taxpayer standing doors willy nilly? That's not really a compelling legal argument to me. That's an argument based on emotion, based on that gut feeling of "something's wrong and I want the Court to fix it dammit."
I think that Lithwick wants O'Connor back on the Court, or at least someone in the O'Connor mold. Justice O'Connor saw herself as some sort of Great Moderator on the Court. It was often up to her, and her alone, to keep the Court "fair" and "just." Many of her decisions were not made based on some theory of Constitutional interpretation. They were based on her gut, on her views of fairness. Her tests were often incredibly fact-specific, offering little guidance to the lower courts. She would tell the district courts to take a list of factors into account and balance them. How could they apply them fairly and consistently? Justice Kennedy has a similar problem but to a lesser extent.
I'm not surprised that Lithwick mentioned the suggestion of the Fray posters (the commenters) that the Court needs less lawyers. Unless people are considering the idea of dairy farmers and chemists on the Court, this means that they want more politicians on the Court. Hmm... Justice O'Connor was a politician in Arizona for many years. Politicians are poison for the Court (see: Earl Warren). I have no great love for Justices Ginsburg and Breyer, but I'm glad that President Clinton didn't get to put Mario Cuomo and Bruce Babbitt on the Court as he originally wanted. Politicians are used to that "see a problem, find a solution" manner that tends to ignore the niceties of Constitutional law and the proper, limited role of the courts.
Lithwick wants to turn back the clock. Based on her love of Flast
, she'd like to crank it back to the Warren Court. Knowing how unlikely that is, she's probably willing to go back a few years to the heyday of the Rehnquist Court. Remember the good ol' days when Justice O'Connor would use her crystal ball to tell us that affirmative action would be unnecessary in 25 years? Live in the now, Dahlia. Embrace the proper, limited role of the Court. Learn to fight your policy battles in the political realm. You'll be much less cranky over the Roberts Court then.