Slate senior editor Dahlia Lithwick was online at Washingtonpost.com on Thursday, Oct. 4, to discuss the start of the Supreme Court term. An unedited transcript of the chat follows.
Dahlia Lithwick: Hey there sportsfans and thanks for this opportunity to chat this morning. The start of the Supreme Court term is always insane, and this one is crazier than usual with Jeff Toobin's and Clarence Thomas' new books; the new direction of the court; and the Justices' general willingness to talk.
Looking forward to answering as many questions as I can so lets get this thing started.
Boston: Is it healthy for a democracy to have a Supreme Court justice so pissed off at one political party for what he terms a "lynching"? At what point does the Supreme Court become so politicized that it is no longer considered legitimate in a democracy? What are the implications for a society that does not have a legitimate judicial system?
Dahlia Lithwick: Hi Boston.
Great question to start. You're talking about Justice Clarence Thomas' new autobiography, My Grandfather's Son, which is yes, a pretty unvarnished slap back at the liberals, feminists, white senators, and others he sees as having tried to destroy him at his confirmation hearing. My own feeling is that the book does, in places, cross the line from careful argument to corrosive talk-radio invective. Justice Thomas is very clearly hurt and angry but the tone, as you observe, is hardly what one expects from a jurist. And I agree with you fully that this does not help the Supreme Court in its efforts to appear "above" the ideological fray. I am working on a longer review, but for now I will just add that Thomas' story, while heartbreaking and compelling and inspiring, could have been a powerful way to unite liberals and conservatives with respect to the role of the judiciary. I fear its done the opposite.
washingtonpost.com: How is Justice Stevens' health holding up? I can't imagine there are many other 87-year-olds in the workforce.
Dahlia Lithwick: You know, he looks great. He is obviously at a point in his career where he is doing a lot of looking backward and a lot of what-does-it-all-mean thinking. Stevens' interview with Jeff Rosen was a pretty astonishing piece of opening up, for instance. Some of his dissents last term reflect this same concern with big historic changes in the legal landscape. The new vigor and energy of Alito and Roberts and Scalia at oral argument and the energy from the ideological right of the court is also hard to miss. I'm noticing, too, that Alito is stepping up his questioning at oral argument this term.
Washington: I've read (and believe) that Justice Thomas's confirmation hearing actually made him more bitter and more likely to go against the liberal viewpoint because those liberal views "smeared" him during the confirmation hearing. Your thoughts? He doesn't really address it in his book but in all the interviews I've seen he seems to still hold a grudge over those events. Thanks.
Dahlia Lithwick: Hey Washington.
I think that Thomas' ideological worldview was pretty well formed by the time of his confirmation, but you are right that the ugliness of the hearings likely tainted and polarized his views. How could they not? He really did retreat after that into a sort of closed-off world and you can see in the book and the tv interviews that his views of liberals can be cartoonish at times. I don't know that anyone could have endured what he and Hill endured without being damaged forever. That is probably the real tragedy here and a comment on the stupidity of our current confirmation process.
Above the Fray: But didn't all pretense of being "above the fray" go down the drain with Bush v. Gore?
Dahlia Lithwick: Well, maybe as a direct consequence of Bush v Gore, most of the justices have actually worked extremely hard at repairing the public perception of the court. Some commentators urge that the more conservative justices moderated their opinions to diminish the appearance of a 5-4 court in the years after 2000. And there is no doubt that in their public speeches since then, most of the justices have emphasized that what courts do is apolitical and transcends ideology. Justices Breyer and O'Connor and Chief Justice Roberts have been outspoken on that point. And the public still holds the court in fairly high regard. It's hard to see Thomas' book as of a piece with that crusade.
Washington: Do you have any thoughts on how journalists and commentators could better explain to the American public that simple "right/left" analysis has less bearing on the court's decisions than generally perceived by the public? Because certain cases present competing interests (for example, a "right" view of federalism and states' rights might conflict with a "right" view of business interests, or a "left" view of an expansive commerce clause might conflict with a "left" view of progressive state police powers), the left-right analysis is misleading, and in my humble opinion clouds meaningful discussion of the underlying substantive issues to be decided in a representative republic. Thanks.
Dahlia Lithwick: Hi Washington.
SUCH a great question and one I have been thinking/writing/doing long itchy panels on a lot in recent months. In general I wish legal analysts would immediately stop labeling judges solely on the basis of who appointed them. Its a shorthand that obscures more than it clarifies. And you are so right that its a mistake to filter every legal question though the obvious left/right prism. Hearing Justice Scalia talking about criminal sentencing Tuesday made you think he had spent 20 years as a public defender! I think, in a broader sense, we fall back on easy right/left stereotypes because its easy, our editors and readers get it, and it makes sense. But you are quite right that the best legal journalism drills deeper than that.
Leesburg, Va.: Dahlia, I really enjoyed the blog that you and a couple of others on Slate contributed to last session. Are you doing that again? It was a good way to understand the analyses of the cases from different perspectives.
Dahlia Lithwick: Hi Leesburg
Thank you for reading! If you mean the "Breakfast Table" we do at the end of the supreme court term, it's one of my favorite things about Slate too. Walter Dellinger has become something of an internet rock star for churning out amazing fast legal analysis of hundreds of pages of opinions for a whole week in June. We've done it for six years in a row and you're right, it's pretty interesting. Harrowing. But terrific fun. I think the internet has radically transformed legal journalism in ways we're only starting to appreciate. Conversations are amazing. So is having broad public access to these brilliant law professors.
washingtonpost.com: The Breakfast Table: A Supreme Court Discussion(Slate, June 22-29)
Washington: I think you and Emily do a great job, like your recent piece that we've gone from knowing almost nothing about the Supremes to knowing too much in a really short time. Wondered about Anthony Kennedy, as it seems that Toobin, Greenberg or someone said he was really full of himself. Explain?
Dahlia Lithwick: Washington, first of all thank you. Emily and I really really love our jobs!
Yes Anthony Kennedy took a big big hit in both Jan's book and Jeff's. I think he's long been criticized for being sort or grandiose, especially in some of his legal writing. I have a big old soft spot for him anyhow because I think he's kind of the last real romantic on the court. Maybe I've read too much Danielle Steele in my lifetime but I really do respect Kennedy's deep reverence for the law and his faith that it can do great things in the world. Sure that sounds pompous and I suppose it can be. But if the alternative is a court that shrinks the law down to the size of a pin (by, say, closing the courthouse doors to one litigant after another based on technicalities and crabbed readings of the law) I am always going to be a fan of the guy who believes the slightly cheesy notion that law is great and important.
Arlington, Va.: Besides the lethal injection and voter ID cases, what cases in this term do you see being the most interesting or having the most potential impact?
Dahlia Lithwick: Good morning Arlington.
Certainly among the most important (if not THE most) is the case testing the rights of captives at Guantanamo Bay to have their habeas corpus petitions heard. I can't overstate the importance of a battle over the right to habeas, Congressional power, the power of the courts . . Its huge.
Also a big case testing whether the president can compel state courts to uphold judgments of international tribunals. Big sentencing guidelines case already heard this week. And we are all holding our breath to see if the court will grant the big second amendment case out of the District of Columbia. Tom Goldstein had a GREAT preview here in Slate this week.
Washington: Quick question: who is the next Justice to leave the Court and what line would you put on that particular person leaving? Hurry, I'm calling my bookie in Las Vegas!
Dahlia Lithwick: Odds are on David Souter leaving soonest.
Tell your bookie to put $20 on red for me too!
Washington: Thoughts on Jeff Toobin's book? Too much fawning over Justice O'Connor?
washingtonpost.com: Discussion Transcript: Jeffrey Toobin on The Nine(washingtonpost.com)
Dahlia Lithwick: I loved Toobin's book. Its absolutely terrific. But it and Jan Crawford Greenburg's book are a real rorshach test. Liberals loved the former, conservatives loved the latter. So much for being above the fray huh?
washingtonpost.com: So, how much did you contribute to this Antonin Scalia-as-Jack Bauer parody?
Dahlia Lithwick: Well, I wrote the script. But many many Slate staffers who are as obsessed with 24 as my husband and I are had great contributions. And the animation and sound is what makes it! I am hoping it gets me a meeting with Kiefer Sutherland. Or at least not deported to Canada!!!
I should add its by far the most violent thing my two year old has ever watched. He keeps asking to see it again!!!
Hey thank you all for reading! I think I am the slowest live-chat person in history and your great questions are still queued up. More next time.