Supreme Court Breakfast Table
Dear Walter and Dahlia,
Thank you so much for inviting me to join you in your by-now-famous end-of-the-term discussion. I have enjoyed reading your dispatches in past years, and I am more than a little honored to join your Breakfast Club.
I also want to thank Walter for getting us started with a World Cup analogy. While I rather doubt that Justice Antonin Scalia would concede that we have anything to learn from the soccer-playing nations of the world or the decidedly internationalist gathering in South Africa, I think Walter is on to something. As much as I love watching the World Cup every four years, there have been a couple of calls that leave me yearning for appellate rights, or at least instant replay. On the latter point, maybe the NFL has something to teach the world: Any system that gives referees the discretion to award Italy a penalty kick on the lightest of shirt tugs, while denying the United States a goal without so much as identifying which player committed the foul, raises questions about how much discretion we want referees and judges to have in our system. The chief justice would not have invoked a FIFA referee as his model for the judicial role—that is for sure. Thank goodness the Supreme Court must not only identify which player committed the foul but also explain the reasons for its decisions at length. Without those opinions, we would have a lot less to talk about this week.
And what a week it should be. As we enter extra time, also known as the final days of the Term, the Court has 11 argued cases yet to decide. Like Team USA, the court always seems to save its best for last. While I am not sure that any of these cases will rival Landon Donovan's 91st-minute goal for excitement, there are a handful that should be fascinating to watch. There are three I am looking forward to in particular. The first is the McDonald case about whether the Second Amendment applies to the states. By way of disclosure, part of my interest is parochial: I had 10 minutes at the podium in the case on behalf of the NRA. But even for those not representing a party to the case, the opinions should be fascinating: "The professoriate" will be watching closely for what the court says about "incorporation" doctrine, while the pragmatists will be looking hard at whether the court says anything more about the standard of review courts should apply in evaluating challenges to firearm restrictions.
Walter alluded to some of the conflicts among the branches. The Supreme Court will get a chance to wade into separation of powers considerations in the Free Enterprise case concerning the constitutionality of the Public Accounting and Oversight Board introduced by Sarbanes-Oxley. This is the sole remaining case Solicitor General/Supreme Court nominee Kagan argued herself. It will also give us real insights into whether there is a working majority on the court for a "formalist" approach to the separation of powers. If that is the case, the consequences could be significant.
The final case—or cases—that I will be watching closely are the so-called honest services cases. Many think the court may be poised to strike down a portion of the federal anti-fraud law as unconstitutional. If that happens, it will beg the question whether Justice Scalia has become a criminal defendant's last best hope at the Supreme Court. He seemed to be leading the charge at oral argument and even last year in a dissent from a cert. denial, and his opinions on both Apprendi and the Confrontation Clause have been strikingly pro-defendant. If the court goes this route, it will also be worth watching how the court's decision to cut a break to Conrad Black and Jeffrey Skilling plays with an increasingly populist public.
And, of course, even beyond the cases, we have Justice John Paul Stevens' final appearances on the Supreme Court bench and the spectacle of the confirmation hearings come Monday. All this, and the Beautiful Game live from South Africa: What more could a Supreme Court watcher and World Cup enthusiast ask for? Dahlia, do you share our enthusiasm?