Dahlia Lithwick was online on Oct. 4 to chat about this article. Read the transcript.
The dramatic force of the Supreme Court's first Monday rests almost entirely upon the fact that each October, nothing happens. Year in and year out, there is no discernible difference between first Mondays, second Tuesdays, 11th Wednesdays, and the preceding June. This once drove me bananas: Often the excitement all turned on whether one of the justices had purchased new glasses or shaved a moustache. Under the same theory that once led the British aristocracy to favor separate bedrooms, we've become accustomed to a high court that retires graciously each June and re-emerges in October, powdered and sweet-smelling, without comment or controversy.
And then this year, all hell breaks loose. The last few weeks have produced one Oprah-grade revelation after another. Which makes gazing up at the justices today something like waking up the morning after Woodstock: There's a tangle of naked judicial limbs up there on the bench, and the uneasy collective sense that it's best to avoid eye contact.
We are afraid to look directly at Chief Justice John Roberts—about whose brain functions we now know far too much. And we can't stare at Justice David Souter for fear he might disintegrate into a puddle of tears. Is Stephen Breyer rolling his eyes? Is Anthony Kennedy "trying too hard to impress"? And what to do about Justice Clarence Thomas? Having taken a spin on his big reconverted bus last night, and then been sprayed full force with his red-hot loathing for the media and the Senate and liberals and feminists and Anita Hill, what's really left to say? And if I dare to utter it, does that make me a "mob"?
Of this I am certain: In the few hundred pages of his new book, Thomas has managed to undo years of effort by his colleagues to depoliticize the judicial branch.
Argument in this morning's first case is mostly an exercise in bewilderment as to why the court agreed to hear this case in the first place. Washington State Grange v. Washington State Republican Party tests the constitutionality of the primary elections system in—yes—Washington state. A state ballot initiative, adopted in 2004, allows candidates to list their party "preferences" on the ballot—even when they are not the nominee or in any way affiliated with that party. Under this "top two" system, every candidate for an office is listed on the ballot, and the top two vote-getters advance to the general election, meaning the two candidates in a general election could come from the same party.
The Supreme Court stuck down California's so-called "blanket primary" system in 2000 in California Democratic Party v. Jones. The rationale wasthat California's system—which, somewhat like Washington's, allowed any voter to vote for any candidate—diluted the political parties' First Amendment right of free association, also known as the parties' right to decide who gets to play in their tree fort. The Washington state Republican Party challenged its state's primary system on similar grounds. The district court agreed that Washington is burdening the right of parties to determine their own political candidates. The 9th Circuit Court of Appeals agreed. The Supreme Court granted cert, evidently in order to agree with the 9th Circuit.
It's clear from the outset that the parties' right to defend the sanctity of their tree fort will prevail. Justice Samuel Alito asks Washington state Attorney General Robert McKenna what possible purpose the state could have in requiring that candidates announce their potentially misleading party preferences on the ballot. Isn't there something more interesting they might list? (Their favorite cheeses, perhaps?) Alito adds that it looks like the Washington effort was an attempt "to get around Jones, but changing the system as little as possible."
Justice Antonin Scalia—who somehow over the summer became the court's most reticent justice—wants to know how it can possibly be fair to the political parties that "candidates can associate themselves with the parties, but parties can't dissociate from the candidate." He asks whether there is any way to test the truth of the candidate's alleged preference for the Republican Party.
Roberts too worries that candidates might "look like Republicans but aren't." McKenna says there is really no reason to fear voters will confuse a candidate's party preference with that party's endorsement. Souter asks whether this distinction ever happens in the real world: "Do you know any people who go around announcing, 'I really prefer the Democrats. I'm a Republican myself.'?" McKenna names Sen. Joe Lieberman. Souter laughs, "There's always one."
The chief justice gets things back on track with an analogy: "This is just like a trademark case. People will be confused."
John J. White Jr. has 30 minutes to argue the Republican Party's side of the case. * For the first several, he and Souter spar."Does the party's right to nominate equal the right to exclude everyone else from the ballot?" Souter asks. Justice Ruth Bader Ginsburg asks how the Washington state GOP determines who is a Republican in the first place. White replies that every party has its own methods. He helpfully explains that the Libertarian Party imposes the most onerous restrictions, by asking its members to sign both forms and pledges.
"So, the Libertarians have a lot more rules than the other parties?" quips Roberts, twinkliness clearly unaffected by the summer's events.
White argues that while most voters can't name a single candidate who is running for Congress, they do know the parties. So, fake preferences could presumably swing elections. Kennedy asks what interest the state has in listing these party preferences on the ballot to begin with. Neither side has a good answer for him. This leads Roberts to conclude that "if there is no legitimate interest for the state here, the initiative fails every level of scrutiny." It's a wrap.
Thomas does not speak again today, content to huddle with Justice Steven Breyer and giggle, as he frequently does. But now I know what hides behind all that hearty laughter, and I confess that it scares my face off. Is it an act of galactic hypocrisy for me to beg, after all these years, to reinstate the separate bedrooms?