Supreme Court Breakfast Table
I am looking forward to spending the next seven days sharing thoughts with the two of you. Dahlia, I believe that this is the ninth year that you and I have conversed during the final week of the Supreme Court's term, but it's the first time we have been fortunate to have former Solicitor General Clement join us. Paul is no doubt familiar to Slate readers as the advocate who produces a total swoon from Dahlia every time he argues a case before the Supreme Court. Not undeservedly, I should add. Welcome, Paul.
This is yet again a Harmonic Convergence Week for judicial review, with debates over the role of the Supreme Court playing out in different venues as the Supreme Court's final opinions of the term are released just as the Senate confirmation hearings for Supreme Court nominee Elena Kagan begin. We can expect important Supreme Court decisions both tomorrow and again on Monday, right before Kagan's first appearance before the judiciary committee.
Events have conspired to heighten the tensions this term among the branches of the federal government. The first major decision of this term (technically, a hold-over from the prior term) was January's opinion in Citizens United providing corporations with a First Amendment right to spend corporate treasury funds to influence elections. This invalidation of an act of Congress led, you will recall, to the televised confrontation at January's State of the Union Address when President Obama referred to the justices seated on the front row as "political hacks in black robes," causing Justice Samuel Alito to leap to his feet and shout, "You lie!"
OK, I'm now being told that the encounter was somewhat less dramatic than that. Whatever. Nonetheless, the decision in Citizens United has in fact become a flash point for members of Congress who remember Chief Justice Roberts' assertion at his confirmation hearing in 2005 that his modest role would be to simply call balls and strikes. To some who support limits on campaign spending, the chief justice's opinion in Citizens United seemed less like an American umpire's calling strikes and more like the "phantom foul" decision by World Cup referee Koman Coulibaly that cost the United States a decisive goal in its match against Slovenia last week.
Of course, both sides in the court's Citizens United decision honestly believed they were correctly interpreting the Constitution. The case does, however, provide a vivid illustration that judging requires judgment. It is simply impossible to resolve the issue in that case—as in many of the cases the court will decide over the next week—by applying mechanical logic to general language of the Constitution.
There is another sense in which the cases at the end of the term seem FIFA-like. The arguments made by several litigants before the court this term may remind some observers of "flopping"—the favorite tactic of international soccer players who respond to the slightest bump (or even imaginary contact) from an opposing player by collapsing to the turf in order to provoke a penalty call against the other team from an empathetic referee.
At the bar of the court, litigants sometimes suggest their need for solicitous protection from the Supreme Umpires against bullies who would commit fouls against them. Sometimes both sides invoke the need for the law's protection. We see that, for example in Christian Legal Society v. Hastings, a case in which a law school has an anti-discrimination policy precluding official recognition of groups that discriminate against gay and lesbian students (among others). The Christian Legal Society, a group whose policies preclude full gay participation, sees itself as the victim of elite, secular discrimination against traditionalists who follow their religious dictates. Also pending before the Court is Doe v. Reed, a case noted recently by Dahlia in which Washington state referendum petition signers who seek to "protect traditional marriage" have asked the U.S. Supreme Court to keep their names secret. The forthcoming opinions in both Doe and Christian Legal Society are likely to provide a window into where the justices stand on the cultural question of whether gays or traditionalists have greater need for the court's protection against more powerful opponents who will pull on their jerseys when the court is not looking. (One of my colleagues admonishes me that the analogy to flopping seems to trivialize the very real claims of ill treatment by one or both sides of these disputes. His point is well-taken. I mean only to suggest, perhaps too lightly, the extent to which these controversies are marked by a sense from all sides of being victims in a larger, hostile culture.)
In any event, the World Cup is not the only distraction this week. When the Senate judiciary committee begins its hearings on Elena Kagan's nomination just after noon on Monday, both the senators' and Kagan's opening statements will compete for attention with major decisions— including whether the Second Amendment's "right to bear arms" applies to the states—that may have just been announced. Tuesday morning, when Kagan begins answering questions from senators, Monday's decisions will be fresh on everyone's mind. Will Elena have to pull an all-nighter Monday reading hundreds of pages of new blockbuster opinions? It would be a lot easier for her simply to log on to Slate Monday night and use our comments on the cases as her cheat sheet. But I guess if she were one to cut corners like that, she wouldn't be where she is today.
I look forward to exchanging headers with you.
Walter Dellinger is a partner at O’Melveny & Myers in Washington, D.C. He filed one of the amicus briefs on behalf of a group supporting gay marriage. The views expressed here are his own.