Tribe reflects on Supreme legacies
Post Date: September 13, 2005
Lawrence Tribe
With the impending departure of Sandra Day O’Connor from the Supreme Court — and the end of the Rehnquist era — Professor Laurence Tribe ’66 talks about legacies. Tribe sat down recently with Harvard Law Bulletin Editor Robb London ’86 for a discussion of the Rehnquist Court, and why attempting a theoretical synthesis of recent Court decisions is proving more difficult than usual.
You’re actually making headlines with your recent decision not to release the second volume of the third edition of the Treatise on Constitutional Law, and you wrote a letter explaining that decision to Justice Breyer, which some are already referring to as the “Dear Steve” letter. What makes a synthesis difficult at this time?
Yes. The “Dear Steve” letter was really quite short. It responded to his innocent question about my treatise’s next volume, or next edition. And I said, in brief, that I wasn’t going to be writing it—at least, in the foreseeable future. But then I thought that it would be useful to do a more elaborate, open letter to whoever might be interested, not thinking there’d necessarily be that many who were in fact interested. But I did know that a publication called The Green Bag, which has a fairly select readership consisting primarily of judges and law professors and some lawyers and some students, was interested in publishing the full letter. And The Green Bag did publish it, and there’s been a whole bunch of stuff in the blogosphere that I haven’t had a chance to see much of, consisting of various comments on my decision.
It’s always possible simply to give an accurate account of Supreme Court decision after decision and to string the decisions together in the form of approximate black letter rules and underlying rationales, but it was never my thought that a treatise of that sort was particularly useful in constitutional law, or at least it wasn’t the kind of thing I tried to write in 1978 and again in 1988, when the second edition came out, or in 2000, when the first part of the third edition came out. I was interested, rather, in presenting a coherent picture of constitutional law as a whole, even recognizing that it’s never wholly coherent, that there are always conflicting tendencies, and that any body of doctrine that is the vector sum of nine arrows pulling in somewhat different directions will always represent some kind of compromise.
And quite often, there will be what Cass Sunstein has aptly called under-theorized agreements, in which five of the nine justices might end up agreeing on a proposition, but not on the basis of the same theory. And it’s, in fact, necessarily the case, as Ken Arrow’s Nobel Prize-winning work on multi-person decisions and on transitivity shows, that there will be paradoxes of inconsistent or at least non-transitive outcomes.
Most recently, for example, in the Ten Commandments case, nine of the “ten justices”—it seemed as though there were ten justices because there were ten opinions, which led the Chief Justice to quip, “I didn’t know we had that many judges on our Court”—actually, eight of the nine justices took the view that the outcome of the Ten Commandments case coming from Texas, involving the longstanding display on the grounds of the capital, and the Ten Commandments case coming from Kentucky, involving the more recent display in the courthouse, had to be the same—that those two cases should come out the same way. But five-to-four, those nine justices upheld the display in Texas, and five-to-four they struck down the display in Kentucky! The one Justice—Justice Breyer—who agreed with both decisions was alone in agreeing with both, while the eight who thought the two cases should come out the same way divided four to four—four thinking both displays should be struck down, and four thinking they both should be upheld.
That’s not a unique phenomenon observable only in today’s Court. But some people have, in commenting on my letter, misinterpreted it to mean that, because there is a degree of incoherence, because I’ve “discovered” the decisions are inconsistent, I’ve thrown up my hands and said, “I won’t play with your marbles.” It’s not that at all. It’s just that my sense is that this is a moment of dramatic transition in which matters on any number of axes could move in radically different directions.
The Court could, for example, either move in a direction of greater globalization and internationalization, paying continuing attention to trends in other countries and the work of other courts, as several justices, including the Chief Justice in one of his speeches, have said is appropriate and as other Justices, including Justice Scalia, have railed against as fundamentally un-American and inappropriate and unjudicial. Or the Court could move in the direction represented by the Scalia protest and could try to build a wall of isolation. Attempting to synthesize a picture of doctrine at a moment when it could move abroad or pull up the drawbridge seems a somewhat futile exercise, because trying to “average out” the two, and briefly describe the case for and the case against either of the two trends, is too much “on-the-one-hand, on-the-other-hand” for me to feel very useful in doing it.
A lot of people could do that, and it’s great that other people are doing it. That’s one of the factors that influences me—that, unlike 1978, or ’88, or even 2000, there are a number of more or less straightforward hornbooks and treatises out there that provide for the student a fairly accurate thumbnail sketch of the different directions of doctrine.
The particular example of internationalization versus isolation represents just one of a number of fault lines along which the divisions at present seem to me intuitively—and this has got to be a matter of “feel” and almost of aesthetics rather than one of scientific proof—to be deeper and more fundamental than in many earlier periods, certainly in the periods in which I had previously written. For example, the most controversial decision at the time I wrote the first edition in 1978 was probably Roe v. Wade. It was very controversial, and yet it was seven-to-two. And the dissents were of a very limited kind. Neither Justice Rehnquist nor Justice White, in dissenting, challenged the fundamental postulates of the majority as to the existence of some sphere of personal autonomy or as to the existence of some right on the part of the woman to control her body. It was only a question of how far the Court had gone, whether it would have sufficed to hold that there must be exceptions of the sort that Texas didn’t provide, or whether the Court should have confined its decision in some other way. But now, it has become clear—partly from the degree to which Roe v. Wade was the generative source of a revolution in American politics, probably accounting in an indirect way for the Reagan Presidency—that, for a great many people on both sides of a vast cultural and ideological divide, Roe v. Wade provides the litmus test.
At a time like this, attempting to write something that will speak to all contending sides of the Roe v. Wade debate is very much like trying to square the circle. I tried it in a book that I published a decade and a half ago called Abortion: The Clash of Absolutes, brought out by Norton. I thought I was really being open-minded about the case for fetal protection as well as the case for protecting reproductive rights, but the result was that both sides thought I was trimming my sails and not saying what I really believed, although I was in fact saying exactly what I believed. And I don’t think I really succeeded in communicating effectively—either to those people who deeply believed that reproductive freedom is axiomatic, or to those people who think that, unless you understand that the fetus is a person, you are some kind of moral monster.
It seems to me that this vast gulf is now even deeper and harder to bridge than it was in 1990 or even in 2000. At least I find it plainer than ever that Roe v. Wade poses so deeply divisive a set of issues on the merits that attempting to say anything useful about the issues involved at the level of constitutional doctrine right now is not likely to be very productive, and that it may be easier four, five, or six years from now to take a look back and see where things have moved and either criticize or applaud the direction of movement or project where it’s going to go.
At a more general level, the kind of treatise that it’s possible to write at a time of such fundamental division and uncertainty would be one that either goes way out on a limb and prognosticates in a direction that no one with any degree of humility can reasonably attempt to do, or one that averages everything out and ends up saying nothing very important. And that didn’t seem to me worth doing, especially when there are so many other projects I want to undertake—books and articles that I want to write, some that I have almost completely written, others that are still on the shelf, others that are still in my head.
Are scholarly blogs becoming new versions of treatises? We’re seeing more and more of these now, devoted to particular issues.
Right. I don’t know that I’d call them “versions of treatises,” but they’re certainly major, real-time sources of reflection on developments in the law, possibilities in the law, trends in law and philosophy, law and economics, and so on, so that, in general, the sources of information and of understanding and of reflection on important problems, not only about constitutional law but about law generally, and not only about law but about almost everything—with the caveat that, being unfiltered, they include an awful lot of garbage as well as insight—are proliferating and deepening at an astonishing pace. So that the case for any major attempt to capture between hard covers the essence of any dynamic and complex and evolving area of knowledge is a lot sketchier now than it was a decade ago.
The burden of proof today, I think, really rests with somebody who wants to publish between hard covers a non-fiction work. There are still those people, like me, who like to fondle a book, who like the feel of hard covers, but surely succeeding generations—I say “surely” although we never know—at least I think it’s likely that people like my granddaughter, who was born 16 months ago now, will come to regard hardcover books as really quite marginal pieces of the intellectual universe, much of which will have been occupied electronically.
It’s perhaps just a little bit ironic that it was in the Booker case, I believe, that the Supreme Court actually first made reference to a law blog (“blawg”) in a footnote.
Is that the first one? That’s interesting. That’d be easy to google, I guess. But there certainly have been citations to websites, and http citations, going back to decisions two and three years ago. One would have said in the past that two or three years ago was very recent, but in this area things move so quickly that two and three years ago is quite a while.
With regard to this trend in some recent decisions of the Court, if you can call it a trend, of referencing international law or the laws of other nations, is this something you welcome?
It’s something that I regard as an odd lightning rod and probably a kind of cultural litmus, because I find it hard to believe that anyone who thinks seriously about it could maintain as a universal proposition that, regardless of the purpose for which one adverts to foreign experience, there is something fundamentally wrong with doing so.
Ironically, Justice Scalia himself, arch-enemy of reference to foreign experience, in his opinion dissenting from the decision striking down the placement of the Ten Commandments in a Kentucky courthouse, began an important part of his dissent with a reference to foreign experience, of all things—his own experience, when attending a conference in Rome, of being approached by jurists from other countries, and in the wake of 9/11 being the recipient of expressions of envy from those officials who thought it a great shame that, in their nations, no head of state could possibly end a major address to the nation with a request that God bless his nation. They told Scalia they wished it would be possible in their countries, as it was in ours, for a head of state to end that way—as the President of the United States had ended his speech after 9/11, with the usual “God bless the United States of America.”
Of course, Justice Scalia used that episode to back up his rejection of the alleged “wall of separation” between church and state, by noting that the aggressively separationist way four members of the current Court view our constitutional arrangements isn’t the way a lot of foreigners understand it. They celebrate the fact that our Constitution makes public observation of religious symbols possible. And Justice Scalia uses that as a taking-off point. So I’m sure he would say that that’s by no means comparable to the way in which Justice Kennedy, for instance, referred to the abolition of the death penalty for juveniles in country after country. But that just goes to show that it depends on the purpose for which one makes the reference.
For example, in dealing with the constitutional provision that talks about cruel and unusual punishment, the proposition that it’s irrelevant what the rest of the world does represents a theory about the correct interpretation of the text’s reference to “cruel and unusual.” Does it mean cruel and unusual in the experience of humanity? Or does it mean cruel and unusual in the history of the United States of America? That’s an open question. In fact, looking abroad can’t be equated with a more “humane,” pro-accused view because it’s at least theoretically possible that a punishment wouldn’t be deemed “cruel and unusual” unless it was unique in world history rather than unique (or nearly so) in the world today, the latter being the interpretation the Court’s 5-4 majority in 2005 espoused, I think correctly. One would look to the usual sources of constitutional interpretation to answer the questions of how broad the comparison should be geographically and how deep it should be historically. It would depend on the best reading of the text in its historical and social context. It might depend on original intent. It might depend on an inquiry into which reading of the language would be most faithful to the Constitution’s broadest purposes. But it’s not a question that’s peculiarly about “foreign” versus “domestic.“
To take one other example, some of the Justices, primarily Breyer, have looked abroad when objecting to the formalistic jurisprudence of the majority of the current Court in striking down federal laws that direct state officials to enforce an Act of Congress—for example, the portion of the Brady Bill that requires chief local law enforcement officers to do background checks on gun purchasers. The dissent by Justice Breyer in effect said, “If you’re worried about the overpowering central government and the ultimately empirical question of which kinds of arrangements will best encourage the flourishing of state and local autonomy—and political accountability—of states as experimental laboratories, you might look at what other nations which have tried to adopt federalist structures have done.” And it’s worth noting that, in other countries where the federal government is allowed to impose obligations on state and local government, the net result has been a smaller federal bureaucracy running around the country and greater localism and greater diversity, not greater centralization.
The dissenting Justices weren’t making that point as a decisive argument, but when the majority’s argument—which, by the majority’s own concession, relied not on the text of the Constitution but on things as broad and vague as its spirit and its overall structure—it’s surely relevant to ask empirical questions about which arrangement produces a certain result more effectively. And if the question is one about practical government operation, it’s hard to see why foreign experience is completely irrelevant.
And so my basic reaction to the right’s objection to relying on foreign sources is that, as a general objection, it’s enormously over-broad and not even entirely rational. That’s why I think it is a symbol of something else. And, in an age when the United States of America has to be part of the world if it’s to succeed, I certainly welcome the Court’s growing attention to what’s happening in the rest of the world, which even Chief Justice Rehnquist endorsed and used in his opinions such as the one in 1997 rejecting a right to physician-assisted suicide.
I would sharply distinguish that general objection from the claim that it would be wholly inappropriate for the United States Supreme Court to treat the decision of a foreign tribunal as somehow binding upon it. If it were to do that, then I think it would be a serious objection to say the American people didn’t vote for and didn’t directly or indirectly appoint whoever made that decision abroad. The characters who made the foreign ruling are in no way accountable to the American people—past, present, or future. For their views to be binding on us is essentially a form of government without representation. That’s what we fought a revolution about. That’s not what our Constitution is designed to do. But that objection sets up a straw man. I don’t know of any example in which a Supreme Court Justice has treated some foreign decision as binding—only as informative in some relevant way.
But this looking to international law—why has it been happening with more frequency lately?
I think it has been happening to a greater degree in recent years in constitutional law primarily because foreign nations have emulated our Constitution with growing frequency of late. It’s only since World War II that there’s been any serious attempt to borrow from American constitutional arrangements. And it’s only since the fall of the Berlin Wall and the decay of the former Soviet Union that there has been a cottage industry of writing constitutions, borrowing one or another aspect of our own.
There were, of course, earlier infrequent instances. As early as 1977, for example, I was asked to advise the government and the people of the Marshall Islands in framing a new constitution. It was an exciting experience, although I certainly resisted the idea that I was some kind of James Madison on horseback, or on fishback, or whatever it would have been. But I was able to at least shed some light on how one or another arrangement would work for purposes of helping to write that constitution. Since that time, I’ve worked on aspects of the constitutions of the Czech Republic and of some of the nations of the former USSR, and some others. Certainly, the one I’m proudest of is the work that I did with Nelson Mandela and his government in helping to frame the transitional constitution for South Africa.
But today, if you look around the world, both in nations that have written constitutions—like South Africa, Canada, Germany, Australia—and in nations that do not—like Israel—borrowing the ideas of constitutionalism and judicial review from the United States is much more common. That generates a jurisprudence abroad—in India, in Ireland, in Israel, in Germany, in South Africa—in really quite a few nations—that addresses questions that bear a growing resemblance to questions that come up about our Constitution within our Supreme Court. I think that this, coupled with the general accelerating pace of globalism, internationalism, the breaking down of barriers, the increased presence of convenient travel, and finally the Internet, which breaks down all national boundaries as far as intellectual commerce and the flow of ideas is concerned—all of that produces an environment in which you have to make an extraordinary effort not to pay attention to what’s going on elsewhere.
Can you offer a summation of the Rehnquist era, or of what his legacy is likely to be?
Well, certainly many of the ideas of which he was the sole exponent early in his tenure, leading to a number of solo dissents, leading his law clerks sometimes kind of tongue-in-cheek to refer to him as the Lone Ranger, have become if not precisely the law of the land at least approximately the law of the land, so that the areas that he appears to have cared the most about, which I would describe as breaking down some walls and building up others, are areas where the Court has moved a considerable distance in the directions he championed.
He appears to have been very interested from quite early in his tenure in a reading of the Constitution that would place much less emphasis on the famous metaphor of the wall of separation between church and state, breaking down that wall. The close division of the Court in the Ten Commandments case shows that, at least when it comes to government support for religious symbols in the public square, that wall has not been completely broken down. But it has been considerably eroded. And when it comes to government aid of a financial kind for religion, as long as the aid doesn’t cross certain very extreme and remote boundaries, I think he has essentially succeeded in creating a regime in which there is no significant barrier to the increased fusion of religious and secular authority other than a requirement of neutrality and some form of nondiscrimination.
Of course, in some ways, the most extreme form of fusion between church and state would have been the delegation of government power to religious institutions—something so extreme that it’s been tried very rarely in our history. One instance of it was the delegation by Massachusetts law to churches of the power to decide which retail establishments within a certain radius could serve liquor and which could not. And in that case, which arose in the Grendel’s Den case, and which I handled both in the lower courts and in the Supreme Court, the Court ended up holding, 8-1, that this kind of fusion of religious and secular authority represented an impermissible delegation of government power to churches. Interestingly, the then Chief Justice, Warren Burger, wrote the majority opinion and the then Lone Ranger, Justice Rehnquist, wrote the solo dissent, which was characteristically humorous and brief and interesting—but, in the end, was not all that persuasive. That’s an area where the law hasn’t moved in his direction: the fusion of actual government and religious power. But it’s moved all the way—or almost all the way—in his direction when it comes to financial assistance to religion, and 5-4, more or less, in his direction when it comes to symbolism.
A wall that he also sought to break down but with less success is the wall of separation between legislative and executive power. In one slip of the tongue or pen in an early article of his, I happened to notice that he said, “In our country, the executive branch makes the law.” Certainly he cannot have meant that, but that might have represented, for the psychoanalysts in your readership, more than a typographical error.
In the cases from Guantánamo where Chief Justice Rehnquist would have exalted executive power and would have made very little turn on whether the executive was crossing various boundaries in the exercise of that power to protect the nation, he did not have a majority of the Court with him. And in fact, in some instances, he did not even have Justice Scalia with him.
Another wall that he has been particularly concerned about in his tenure, the wall of separation between state and federal power, is one where the record has also been somewhat mixed. But in general he succeeded in building up a wall around state sovereignty with the help of reinforcements like Justice O’Connor in the course of his tenure—a wall that represented at best a marginal position on the Court in the years from 1937 until Rehnquist’s tenure began.
In cases involving the 11th Amendment, which protects the sovereignty of the states from citizen suits (typically involving the imposition of damages against the states), he succeeded in a very important way in making it much harder for Congress to abrogate that immunity. But he was also the author of an opinion just a couple of years ago in the Family Leave Act case from Nevada, in which a closely divided Court did find that the prerequisites for Congressional abrogation of state sovereign immunity were met.
He dissented from an important decision about a year ago from Tennessee involving a person who could enter a courthouse only by crawling up the stairs unless some accommodation for the physically disabled were made. The Court, refusing to go all the way with the Rehnquist position on state sovereignty, held that Congress had an adequate basis for forcing the states to waive their sovereign immunity in suits brought under the Americans with Disability Act, at least as applied to courthouse access, which is a fundamental constitutional right independent of disability.
With respect to another aspect of the wall between state and federal power—an aspect dealing not with sovereign immunity but with the general reach of national legislative authority—the Rehnquist position has really triumphed: those who believe he succeeded only partially attribute to him aspirations I doubt he ever harbored. He succeeded in establishing that, “Yes, Virginia, there is a limit to the commerce power.” That limit is exceeded when, for example, Congress chooses to ban something like the possession of guns near schools on a rationale reminiscent of “For want of a nail, the horseshoe was lost; for want of a horseshoe the horse was lost; and then the soldier; and then the army: and the kingdom”—a rationale that Justice Breyer attempted to develop in dissent by saying guns nears schools create a bad educational environment, which means less learning, which means less productive graduates of the schools, which means a lower gross domestic product, which means adverse impact on the interstate economy, which of course equals interstate commerce. That attenuated, multi-link argument would have succeeded and swept the Court by a clear majority before Rehnquist finally made his influence felt.
Early in Rehnquist’s tenure, joined only by Justice Stewart and sometimes by Justice Douglas, he maintained that there has to be some limit to that kind of reasoning unless we’re to abandon the idea that it’s a government of limited national power. But it was only in the 1990s that the Court was able to amass a majority for a decision like that in the Lopez case, striking down the Gun-Free School Zones Act over the dissent of four liberal-to-moderate members of the Court, who were frankly unable to provide a limiting principle to their vision of the commerce power.
The Rehnquist view that has prevailed is that the Court must reject any argument in favor of national legislative authority which, if accepted, would prove unlimited. The fact that Justice Rehnquist, together with Justices Thomas and O’Connor, dissented in Raich, the recent decision about medical marijuana, only means that Justice Rehnquist decided in that case to reach beyond the logic of his own prevailing view. The majority opinion by Justice Stevens upholding the power of Congress to ban all possession of marijuana, even for physician-prescribed medical purposes in states with a controlled regime like California’s, seemed to me not a retreat from, but an application of, the Rehnquist decision of a decade earlier holding that banning mere gun possession was beyond Congress’ Commerce Clause power.
Justice Scalia wrote a concurring opinion in Raich, splitting from Chief Justice Rehnquist for the first time in a case involving the outer boundaries of the federal commerce power. It’s something of a marvel to me that three Justices (including the Chief Justice) dissented. But the 6-3 Raich ruling means that Congress’s affirmative powers, although much more limited than in the pre-1990 period, are not so tightly limited as they were prior to 1937; only Justice Thomas has championed turning the clock in this area back to the pre-1937 era without regard to stare decisis.
There isn’t time for me to go into criminal law and each of the other areas in which he made a major mark, but, I would say as a general proposition that Chief Justice Rehnquist, being conservative in the Burkeian sense, took the Court back to his view of fundamentals, but deliberately stopped short of going so far back as to greatly upset any apple carts. In the Sentencing Guidelines case, for example, Rehnquist’s pragmatism moderated the strict originalist separation-of-powers views that some members of the Court would have taken. And it is that kind of pragmatism—which, especially since he became Chief Justice, moderated some of his fundamentalism—that I think represents what he stood for doctrinally and what has ultimately proved successful.
I think his Chief Justiceship outside the area of constitutional doctrine was an unqualified success. As an administrator of the federal judicial system, he was evenhanded and efficient, praised from all corners, and was a staunch defender of judicial independence when needed, especially in the face of excessive Congressional attack. And as someone who ran the Court and the federal judicial system well, he’s universally praised. He was praised as a likeable person by Justice Brennan in a recently published interview with Stuart Taylor. And he was described by Ruth Bader Ginsburg as the best boss she ever had. I think these are sincere expressions of respect, admiration and affection.
And it’s clear that he was unlike his predecessor, looking every bit the Chief Justice from central casting with his wonderful white mane but not being much liked or respected by most of his fellow Justices, given his annoyingly regal pretensions and his conspicuous tendency to be punitive in assigning, for example, Harry Blackmun a bunch of tax cases that Blackmun didn’t find interesting as a punishment for Blackmun not playing the role of dutiful Minnesota twin. In sharp contrast, Chief Justice Rehnquist has been regarded as entirely fair in his opinion assignments, and he ran a tight as well as a fair ship. So that I think that, for many of the things that one hopes to find in a Chief Justice—the ability to get along with his fellow Justices while maintaining intellectual rigor and while maintaining a rapid and efficient turnover within the Court’s work—on all of those things, I think he has got to be ranked a truly outstanding Chief Justice.
But on the substance, the verdict—first measured just in terms of distance between his vision and his accomplishments—has to be somewhat mixed. And, of course, the ultimate verdict—how great was he?—can’t be entirely separated from how much one ends up agreeing or disagreeing with the directions in which he chose to move the Court and the law. I remember reading one survey on the ostensibly “great” chief justices, in which I was shocked to find how many of my fellow law professors ranked Taney, the author of Dred Scott, as among the greatest. And some of them had a footnote—“except, of course, for Dred Scott.” Which reminded me of the famous joke: “Apart from that, Mrs. Lincoln, how did you like the play?” It seems to me one couldn’t give a final verdict on Rehnquist’s greatness without saying what one thought of the substance of where his opinions led. And that’s really not what I would attempt to do here.
I do think calling it the Rehnquist Court could be something of a mistake. In terms of who has wielded the greatest influence during at least the last 20-plus years, it may have been more an O’Connor Court than a Rehnquist Court. And it’s certainly worth noting that, in the last several Terms, on a number of very important cases like medical marijuana, it’s been, if anything, a Stevens Court. Despite the fact that the liberals and moderates are outvoted in general, and despite his advanced years, Justice Stevens has been remarkably effective in pulling together a majority in a number of important cases—sometimes, I think strategically and wisely as the senior Justice in the majority, assigning the opinion not to himself but, for example, to Anthony Kennedy in the case striking down Colorado’s anti-gay rights initiative.
Professor Fried has looked at a spate of decisions over the last several terms and come to the conclusion that the opinions are somewhat lacking in what he calls legal rigorousness—reference and deference to text, precedent, and legal doctrine. And he finds that there are some opinions that are rhetorical and more of the sort that one would associate with political position-taking. Do you agree with that?
I don’t think the Court can be said to have been guilty of that more than its predecessors. Certainly, it can’t be said to have been less legally rigorous, by and large, than the Warren Court, or the Burger Court, or the Hughes Court—or the Marshall Court, for that matter. And the Marshall Court was pretty heavy on rhetoric and not always very strong on convincing demonstration. People have punched effective holes in almost all of the most famous decisions, including Marbury and McCulloch. So I’m not sure that I would be inclined to agree that this Court is peculiarly guilty on that score. I would distinguish the view I’ve expressed in deciding to put my treatise aside, at least for the time being, finding the divisions now to be deeper and more fundamental than they have been in the past. Those divisions might be mistaken for evidence that the Court has been heavier on rhetoric and lighter on reason—less consistent in adhering to some philosophy than prior Courts. I don’t think that’s really the case. I think that my colleague, Charles Fried, whom I admire and like a lot even though we so often disagree, is focused in this instance more on his dissatisfaction with some of the results in the affirmative action cases and in some free speech cases and in the sovereign immunity cases.
I think the gerrymandering case also.
And the political gerrymandering case, yes. I’m in disagreement with a number of those results too, and with a good bit of the reasoning. I would criticize as well the free speech “Beef—It’s What’s for Dinner”case from this Term. But I think you’d have to set my criticism there aside on the basis of self-interest, since I argued that case and wasn’t happy with the outcome.
I disagree, as Charles does, with some of those outcomes. I don’t disagree with the outcome in the Michigan Law School affirmative action case, though. I don’t agree with him that the affirmative action case was particularly poorly reasoned, either. The reasoning of the Court took very heavy account of pragmatic considerations, consequentialist considerations, and we could have a very long debate, Charles and I, over when it is or isn’t appropriate to take such real-world consequences into account. But it would amount to a fairly particularistic debate about specific areas of constitutional doctrine. If there were a debate on whether this Court deserves a worse “grade” than its predecessors on legal craft and logical coherence, though, I don’t think one could sustain the “worse grade” position. If anything, I think this is a bunch of better lawyers, who write more lawyerly opinions on the whole, than their predecessors.
Are there popular misconceptions about the views or the ideological consistency of particular Justices? Are you ever surprised by how particular Justices come out?
Well, it would certainly be misleading to say that I always predict exactly and correctly how all nine of them will vote. There are a number of cases in which I’m not right about a particular Justice. I’m not too often surprised by how the Court as a whole comes out, though. I do think there are plenty of misconceptions abroad about all of them. The view that they can be neatly divided into two camps, one liberal, one conservative, independent of issues, I think is widely held—but wrong. The common idea that there is such a thing as “judicial activism” which could be objectively measured in some meaningful way is also deeply wrong. One person’s judicial activism is another person’s stolid defense of right principle against convenience and political popularity.
I saw an op-ed piece in The New York Times recently by Professor Paul Gewirtz and a former student of his at Yale Law School, an op-ed that really surprised me for its naïve take, given how sophisticated Paul is. Their op-ed said we ought to look for objective measures of judicial activism and offered as its entry into the objectivity sweepstakes the frequency with which a given Justice has voted to invalidate an act of Congress. The op-ed points out that Justice Thomas is at the top of the “activism” list by that measure; then comes Scalia; and down near the bottom, conveniently, come the moderates and the liberals. But what that scale measures has no significance independent of which Acts of Congress were involved. I don’t think there’s anything particularly “objective” about treating acts of Congress as the baseline unless you start with the presumption that acts of Congress should never be overturned and that, every time a Justice votes to overturn one, that’s a strike against that Justice. To believe that, you’d have to believe in abandoning judicial review altogether. And, though there are a few scholars who’ve staked out that position, I think it happily is a fringe at the moment. And the proposed Gewirtz measure would mean, for instance, that if Congress were to enact a dozen blatantly unconstitutional abridgements of free speech and half a dozen clearly constitutional laws providing for the regulation of the U.S. Air Force, a conscientious and capable judge who voted to strike down the free speech abridgements but to uphold the Air Force laws would receive an index for “judicial activism” twice as high as the goofy judge who upheld all the free speech infringements because he didn’t believe in the First Amendment but struck down the Air Force laws because Article I mentions only an army and a navy!
I think another misconception is that, when judges come onto the Court, they ought to be blank slates, not have preconceptions, not have substantial ideas about particular areas of the law, and that that’s why it’s inappropriate to ask substantive questions about judicial philosophy in confirmation hearings—leaving the hapless senator with such bland and ultimately empty questions as, “Would you follow the law, Judge, or would you make it up as you go along?” Well, no judge thinks she makes it up as she goes along. But if you get more specific than that, the idea that that’s wrong because judges shouldn’t have predispositions is very naïve. It’s inevitable that judges will come at cases from different points of view, different perspectives, different general understandings of how you should read a text, how much weight should be given to the precise words and how much weight to the history, how much weight to the consequences of alternative readings, and so forth, as well as different initial premises about free speech, privacy, and the like. If we did not believe that judges had fundamentally different starting points on those matters and that those starting points would powerfully affect where they ended up, it would be quite mysterious why we would have nine Justices. It’s not just to reduce the workload. If anything, to some extent the workload is heavier when you have to spend a good bit of your day persuading colleagues.
The reason that there are nine—and the reason that we choose a multiple-headed court that makes possible the kinds of inconsistent results that I referred to earlier—is that we understand as a nation that many of these are not questions that have objectively right and wrong answers on which all reasonable people should automatically agree, in which all you need to do is be a good reader of a text and a good follower of the instructions that “We the People” gave in order to get the result right and that, otherwise, you are a judicial activist making up law from the bench. That’s not the underlying presupposition of having nine members of the court, or in fact of having judicial review at all.
And yet a fairly large number of people, having busy lives and other things to worry about, probably do assume, by and large, that the frequency of five-to-four opinions, the hotly contested confirmation hearings, and the division of people along partisan lines within those hearings, all somehow represent a deviation from what ought to be and represent proof that our courts have taken over the business of governing the country. Hardly! All they prove is that, as a country, we have left lots of fundamental questions about the nature of our institutions and the roles and limits of government unsettled rather than trying to settle them all in advance, probably reflecting the wisdom that we don’t know all the answers in advance and that the best we can do is to keep struggling over them.
Especially in view of Bush v. Gore, do you think the Supreme Court is in danger of being perceived by the public as essentially a group that makes political decisions and couches them in terms of the law?
Well, that’s a very good and very difficult question. Its answer depends partly on what one means by “political.” That is, if the country comes to a consensus that the Court’s work is not strictly legalistic in the narrowest sense, a sense that might be applicable if it were interpreting a bill of lading or a highly technical security prospectus, but that its decisions necessarily reflect fundamentally differing views of the nature of government, the nature of individual rights, the role of the state—and a number of other questions on which our Constitution certainly does not speak unambiguously—if that’s what’s meant by political, then I think not that we’re in “danger” of having a majority understand the Court is political, but that we may be in luck and the nation may rightly understand that it’s necessarily political—that many questions of constitutional law are questions that have large elements of principle and policy and can’t be nailed down to questions of strictly fathoming the subjective intentions of a finite set of people at some earlier point in our history.
If, on the other hand, the question is whether we are in danger of thinking that it’s all a matter of partisanship, of which political party or policy you favor—Democrats go one way, Republicans another—I suppose Bush v. Gore might have produced that feeling. It certainly produced that feeling in a number of Democrats. But I think they were wrong. I may be naïve, but I think that the reasons, both conscious and ultimately unconscious, for the votes of most, probably all, members of the Court’s majority was the belief on their part—a belief I think was mistaken but nonetheless sincerely held—that the Florida courts had gone wild, that they had themselves acted in a partisan way; that as a result the nation was in a crisis; that it couldn’t afford more waiting and more counting; that the counting was itself a circus; that it would make a laughingstock of the country abroad; that it was the Court’s role—even at cost to its reputation—to “take a bullet” for the country by bringing the case to an end; that, because the margin of error in the Florida results was probably greater than the margin of victory, it mattered less that it be settled right than that it be settled fast. And I believe they even persuaded themselves of their rather bizarre equal protection rationale in the per curiam ruling. But that’s just a difference of view between me and certainly a number of other people, many of them very smart—including some of my own colleagues like Alan Dershowitz, who’s written a book called Supreme Injustice, which argues that it was partisan through and through.
I think it’s unlikely that enough people will have that view of the Court based just on Bush v. Gore that it will reduce the Court’s ability effectively to perform its critical functions of resolving disputes about basic issues. In fact, even most of those Democrats who thought the Court was being partisan and who thought that Bush v. Gore showed that, when push came to shove, the Justices in the majority were not willing to act in an impartial way, are quite willing to live with the result of that case—they don’t necessarily regard the government itself as illegitimate, certainly don’t question the legitimacy of the Court when it decides, say, the sentencing guidelines case. I didn’t hear many of them questioning the legitimacy of the Court when it decided Lawrence v. Texas, striking down the sodomy laws of many states of the union. I think that the Court, over time, has earned a place in the national psyche, in the national culture, that is not soon going to be shaken.
I do think that the rather stereotyped and highly partisan nature of some of the confirmation hearings, in which everybody—or almost everybody—plays a somewhat predictable, almost station-identification-like role, contributes, especially if the confirmation is by a very narrow vote, to a sense that it’s just a matter of who has the most clout and the largest contingent on the Court. And I’m not sure what that will do to the long-run influence of the Court. It’s certainly plausible to argue that the nomination of more consensual candidates who are more in the middle and less at either extreme, generating a more bland confirmation process and an overwhelming rather than a close vote, would contribute to the legitimacy and majesty of the Court. I guess it’s true purely as an empirical matter that people will be less likely to question the Court if things go that way.
But I’m not sure I like the premises of that argument. The premises come down to the proposition that only people who are safe and in the middle and who don’t have powerful views at one end or another ought to serve on a Court like this. I reject that bottom line. I think the Court that Scalia and Brennan served on when they both served together for several years was a healthier Court, generating a healthier debate about fundamental constitutional principles, than a Court that has in general moved so far to the right that judges I would have called centrists or moderates in the past are now regarded as the Court’s liberals. And so the idea that legitimacy is best secured through lopping off both ends and leaving only a middle doesn’t seem right to me.
Of course, if by the far ends of this spectrum one meant a total fascist, on the one hand, or a person who believes in communist revolution tomorrow, on the other hand, then I think neither of them could carry out the judicial function with fidelity. But I didn’t even suggest, when I opposed Robert Bork, that he was extreme in that sense. I simply thought that he had views of privacy and of certain other issues that were so widely unacceptable to the American people that they should know as much if they were going to vote to confirm him. And I personally opposed his confirmation because I disagreed so profoundly with his views on some truly fundamental constitutional issues. But I think the idea that people like him or Like Scalia or Thomas on the right or like Brennan or Douglas or Thurgood Marshall on the left simply shouldn’t, as a matter of principle, ever be on the Court is a very bad idea.
Do you continue to believe that Bork should not have been confirmed?
Yes. But I do think that part of the campaign against him waged by some of the interest groups which sought to paint him as the devil incarnate, which all but said that he personally favored racial apartheid, and which insinuated that he might personally enjoy seeing women forced to resort to back-alley, coat-hanger abortions—that those depictions were terribly misguided, misleading, unfair. And I think that some of the techniques that were used of rummaging through his personal correspondence, or his trash, or whatever it was—
The video store rentals.
Video store rentals—they were deeply offensive. I’m not even sure that the opening salvo of Senator Kennedy’s speech about “Robert Bork’s America,” while it was incredibly effective, was ultimately the best way to couch the issue, because what Kennedy said is so easy to caricature. And I did feel, with whatever self-pleading is involved here, that the way the right wing caricatured my opposition to Bork, despite its carefully-framed character, and equated it with that of the interest groups, was wrong. It was very easy, in light of the way parts of the campaign against Robert Bork were waged, for the right to engage in retaliation—and, as with cycles of vengeance and counter-vengeance in the Greek tragedies, it’s really unfortunate that that the Bork battle has generated such seemingly indelible and bitter memories and so insatiable an appetite for payback. But no one who reads Robert Bork’s book, The Tempting of America, or any of his subsequent writings—writings that made very clear how he would, if put on the Court, have voted to overrule Roe v. Wade, for starters, in contrast to what Justice Kennedy, who ultimately occupied that seat, did—would think that the basis of opposition articulated on my part, or on the part of professors like Kathleen Sullivan and Walter Dellinger, was mistaken as a predictive matter.
One could ask the broader question, “Would it have been a good idea anyway for Bork to be on the Court?” I know that, any number of times when I’ve testified before the Senate when, for example, Alan Simpson of Wyoming was a member, he would lean over and say, “I think it would have been a much better Court if both you and Robert Bork had been on it.” Whether that was just flattery, or whether it was sincere, I suppose there is quite a bit to be said for the more general point, abstracted from personalities, that it would be a better Court if people who are very conservative and people who are very liberal were on it simultaneously. But unilateral disarmament is not a possibility here. It’s not realistic to ask either party, acting alone, to unwind the reel of history. And if the question is whether one or the other side should now stand down and simply let the President, whoever it is—especially if the Senate is of the same party—appoint people regardless of how fundamentally individual Senators might believe that the constitutional philosophies of those nominated are deeply wrong, I suppose the answer is no. For either side suddenly to do that, expecting the other side to reciprocate, is pretty tough. It was tough enough to work out the 14-Senator truce—not treaty, as Senator Hatch rightly pointed out—on the “nuclear option.” It would be harder still to work out any kind of binding agreement by both sides to stand down. So maybe it would have been better if, from the beginning, there had been a little less attention to substantive philosophy by everyone, including presidents.
By the way, when I did testify against Robert Bork, I thought he would be confirmed anyway. And I confronted the very dismal prospect of arguing many cases in front of a Justice that I would have actively opposed. Not a happy prospect. I was really quite surprised that, largely because of his own testimony and demeanor, he wasn’t confirmed.
Senator Specter has said that the Court would benefit from the appointment of someone from somewhere other than the federal bench—that it might, in fact, be good to find someone with a little more practical experience, who doesn’t work so much within the footnotes and the semicolons—which seems to mean someone who’s not even a judge.
Well, first of all, that shouldn’t be regarded as all that radical a view. On the Court that decided Brown v. Board of Education, regarded by nearly everyone, right and left, as the greatest Supreme Court decision of the 20th century, there wasn’t a single former judge. And the fact that we have fallen into a practice of having only former judges, almost all from the federal circuit courts, many from the D.C. circuit, seems to me to be much too narrow. There’s certainly room for practical experience. I think that O’Connor’s experience as a state legislator made a difference in her ability to sense a viable center and to serve as a bridge builder enabling others to cross over to common ground. I think that Breyer’s experience as chief counsel of the Senate Judiciary Committee not only made a difference in his ability to get confirmed (and therefore nominated in the first place) but also makes a difference still in building coalitions within the Court.
But I think the idea that it is not important or necessary in addition that one be able to work within the footnotes and with the precedents is probably a mistake. Much of the work of the Supreme Court, though not the most visible work, involves fairly technical statutory interpretation issues. One would hate to see the Justice who came from the political world voting on those cases without being able to deal with all of the material, having to delegate all the heavy lifting to their law clerks. It may be fine if the law clerks write most of the initial drafts, but it wouldn’t be fine if they essentially cast the votes.
And so, ideally, you need someone with capacities of both sorts. When, as is rumored, President Clinton was thinking of appointing George Mitchell or Mario Cuomo, he was talking about appointing people with great political experience and savvy who also were great lawyers and, in Cuomo’s case, not a bad moral philosopher and historian, either. It seems to me that’s the ideal kind of appointment for a Court otherwise comprised only of former judges. The ideal appointee is someone who has had deep experience in the political world, or at least in the world of practical affairs, like John Marshall Harlan, Jr. or Louis D. Brandeis. Both had been great lawyers. Neither was a politician. But being a great lawyer can also represent relevant experience. Someone with that kind of background in the world, but also with a familiarity with and a fluidity with the legal materials, is needed.
The interest groups preparing for battle over Supreme Court vacancies indicate that they’re going to be spending unprecedented sums of money on media campaigns—
Yes, the Christian Right, some parts of it alone, plan to spend $18 million, no matter what, in support of whoever’s nominated unless they oppose the nominee. That’s amazing.
This takes it to a whole new level. What do you fear could be the negative ramifications of that kind of injection of money into the process?
I’m not sure. It certainly isn’t going to be that the person who’s supported by the richest men in America or the richest corporations will automatically win. Money isn’t going to buy the seat. The problem is more subtle than that. I suppose the problem in part is that it is becoming much easier to reduce the selection process to who gets the best bumper stickers, which in turn influences Senatorial votes—that it is being dumbed-down dramatically, so someone who opposes Roe v. Wade will be equated wrongly with someone who wants to return women to being barefoot and pregnant all the time, and someone who favors Roe v. Wade will wrongly be equated with someone who favors abortion as such.
But, on balance, I have to say I have enough faith in the basic working of democracy that I wouldn’t favor limiting expenditures in this area. I wouldn’t favor silencing money. I wouldn’t favor preventing people from sloganeering to their heart’s content. So I’m not sure what my fears here add up to—certainly not yet a policy prescription.