The Supreme Court Breakfast Table

Harmonic Convergence at the High Court
An email conversation about the news of the day.
June 21 2009 9:51 PM

The Supreme Court Breakfast Table

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Dear Dahlia and Linda,

This is harmonic convergence week for the Supreme Court. The planets have aligned so that the end of the 2008 term comes just as we approach the confirmation hearings for a new justice. The last time this happened was when Justice Breyer's nomination was pending in June 1994. But this time feels different. The issues raised by the significant cases remaining on the court's docket seem particularly to resonate with the issues being debated in connection with the nomination of Judge Sonia Sotomayor.

The most important cases naturally gravitate to the end of the term because justices drafting the majority and dissenting opinions in those cases apparently feel compelled to keep revising and rewriting in response to one another's revised counterarguments up until the final days of the term. (This explains why some of the most interesting points are often in footnotes, the preferred venue for last-minute volleys.) This year there will be another dimension to the final opinions: Some will probably become fodder for the forthcoming Senate confirmation debate across First Street, Northeast.

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Four remaining cases that may become part of the Sotomayor debate are Stafford United School District v. Redding (the school strip-search case); Citizens United v. Federal Election Commission (a challenge to a part of the campaign finance-laws); North Austin Municipal Utility District v. Holder (the Voting Rights Act case); and Ricci v. DiStefano (the New Haven firefighters case).

The Redding case poses a challenge to those senators who want to press Judge Sotomayor to swear under oath that in reaching decisions she will "simply apply the law" and solemnly promise never to be influenced by her life experiences, common sense, or any other nonmechanical factor. The case involves Savana Redding, a 13-year-old girl strip-searched by school officials who suspected she might possess prescription ibuprofen. Did this violate her constitutional rights? The relevant constitutional text says: "The right of the people to be secure in their persons … against unreasonable searches and seizures, shall not be violated." You can stare at that text for hours, hold it up to the light, even study it under a microscope, and it still won't tell you which searches are or are not "reasonable." Precedent is helpful but not dispositive: Prior cases say that school searches cannot be "excessively intrusive." In making that determination, it is surely useful for a judge to have some ability to understand how intrusive a "pull up your bra and pull out your panties" search might seem to a 13-year-old girl. (Some dare call this quality "empathy.") It may also be relevant, of course, to have some sense, as well, of the challenges facing school officials and the potential systemic value of bright-line administrative rules (like zero tolerance for drug possession). The key point is that all of the justices, no matter how they vote, will necessarily consult factors that are not purely and simply "legal." Senators who urge upon prospective justices an entirely mechanical balls-and-strikes application of law will be hard-pressed to explain how they could decide a case like Redding by legal logic alone.

In addition to using the confirmation hearings to root out closet empathizers, many senators will be vocal in their insistence on keeping any lurking "judicial activists" off the Supreme Court. Is that rhetoric outdated? Isn't the notion that political liberals favor, and political conservatives oppose, judicial activism an anachronism? In contrast to the eras of Brown v. Board of Education and Roe v. Wade, we are now in a time in which it seems that it's most often conservatives who are urging strong federal judicial intervention to set aside decisions made by state and local governments and by the people's representatives in Congress. In recent Supreme Court terms, political conservatives have wanted the court to take strong action to set aside local gun regulations, local school-board pupil-assignment plans, state awards of punitive damages, and local decisions on what kind of "public purpose" justifies taking property.

So it is again this term. In three of the most significant cases to be decided this week, it is the justices thought of as conservative who are most likely to use the power of judicial review to strike down decisions made by Congress on campaign-finance regulation and voting rights and to set aside the judgments made by local officials on promotion of firefighters. Some of these decisions may well be correct. (The campaign-finance law provisions used to limit distribution of a documentary critical of Hillary Clinton, for example, seem, to me, incompatible with the First Amendment.) The point is that far more often than not these days (gay-marriage litigation excepted), it is conservatives who favor aggressive judicial review. The rhetoric on the Senate floor seems not to have caught up with the reality of the court's docket.

The case that raises the question of the role of the judiciary most sharply is NAMUD, the Voting Rights Act case, because it involves assessment by the justices of considerations that seem quintessentially legislative in nature. And the case that may produce the most discussion in the Sotomayor debate is Ricci, the New Haven firefighter case in which Sotomayor joined the opinion that is being reviewed and assessed by her prospective new Supreme Court colleagues. Both NAMUD and Ricci involve race, an issue that seems to have become more complex, not less, in the age of Obama. There is so much to be said about each of these cases that I hope neither is decided until later in the week so I can get all your views before the opinions are announced.

So we will have a lot to talk about. Linda, do you have any thoughts on what's been interesting so far this term that you could share before we plunge into the maw of the final week?

Regards,
Walter

Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.