All posts by Chris Schmidt

OT 2016, Weekly Preview

The Week Ahead – January 30, 2017

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The Supreme Court is currently in recess and will not meet again until its February 17 conference, but President Trump is expected to announce his Supreme Court nominee on Tuesday. In an interview with Sean Hannity at FOX News, Trump hinted that he was closing in on his nominee selection, stating: “I have made my decision pretty much in my mind, yes. That’s subject to change at the last moment, but I think this will be a great choice.” And on Monday, he announced that he had made his decision. There are three judges widely believed to be on his short list: Judge William Pryor of the Eleventh Circuit, Judge Neil Hardiman of the Third Circuit, and Judge Thomas Gorsuch of the Tenth Circuit.

Senate Democrats, however, are threatening to filibuster, regardless of who the nominee is, citing the Republicans’ refusal to even consider President Obama’s nomination of Judge Merrick Garland. As Senator Jeff Merkley of Oregon put it: “This is a stolen seat. This is the first time a Senate majority has stolen a seat…. We will use every lever in our power to stop this.”

Last week, Trump said that if Senate Democrats were resistant to confirming his nominee, he would encourage Senate Republicans to deploy the so-called “nuclear option”; in this scenario, the Senate Republican majority could eliminate the ability for the minority party to filibuster a Supreme Court nominee by changing Senate rules on a majority vote. Senate Democrats deployed the measure in 2013, when they changed Senate rules and eliminated the need for a supermajority for all federal judicial nominees – except for those nominated to the Supreme Court.

Burgess Everett at Politico describes the potential implications of the nuclear option, stating, “Eliminating the filibuster for Supreme Court nominees would shred the fabric of the chamber, making it much easier for future presidents to confirm ideologically extreme nominees and potentially leading to the death of the 60-vote threshold for legislation.”

In the meantime, while SCOTUS is in recess, several justices will be using the time to speak at events in the upcoming week; SCOTUS Map provides a directory these events here.

Today, January 30, Justice Sotomayor spoke at the University of Michigan’s 2017 Presidential Bicentennial Colloquia, along with Justice Susanne Baer of the Federal Constitutional Court of Germany. Martha S. Jones, co-director of Michigan Law’s Program in Race, Law & History, invited the justices to participate in the event to discuss how their diverse backgrounds have influenced their contributions to legal practice; Sotomayor is the first Latina woman to serve on the Court and Baer is the first openly lesbian justice on Germany’s High Court. Sotomayor urged the University to increase the number of African-American students attending, noting that the country “can’t reach equality in a larger society” without equality in education.

On February 1, Justice Ginsburg will speak at Washington and Lee University School of Law and the Virginia Military Institute. Ginsburg will be participating in an on-stage interview at VMI. The event will be open to the public.

 

OT 2016, Weekly Roundup

Weekly Roundup – January 28, 2017

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Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow @ISCOTUS on Twitter.)

The Supreme Court did not hear any oral arguments this week, but they did issue orders on Monday.  Fox News reported that the Court declined to hear an appeal regarding Utah’s ban on polygamy, petitioned by the stars of the TV show “Sister Wives.” Utah has a stricter polygamy ban than other states, as it is illegal to live with a second “spiritual spouse,” if one is legally married to another person.

The Court was also a hot topic in the news following the inauguration of President Trump. The new president has reportedly narrowed his choice to replace the late Justice Antonin Scalia down to three nominees. The New York Times reported that the nominees include Atlanta Federal Appeals Court Judge William H. Pryor Jr., Denver Federal Appeals Court Judge Neil M. Gorsuch, and Pittsburgh Federal Appeals Court Judge Thomas M. Hardiman. The Democrats, however, remain angry about the Republican-led Senate’s refusal to even consider President Obama’s nominee, Judge Merrick Garland. Senate Minority Leader Chuck Schumer explains that the Democrats will oppose any nominee who is not in the “legal mainstream,” and if necessary will try to keep the seat open as long as they can.

USA Today provided short profiles of each of the nominees. Judge Pryor is the former Attorney General of Alabama, and once called Roe v. Wade “the worst abomination of constitutional law in our history.” However, it appears that he does not always take the expected conservative position on matters, as he has joined rulings in favor of transgender rights. Judge Gorsuch follows Justice Scalia’s view that the Constitution should be interpreted strictly as the Founders intended, and is not a “living” document that should be changed and adapted over time. He is also a former clerk to Justice Byron White and Anthony Kennedy. Judge Hardiman, sits on the same bench as President Trump’s sister, Judge Maryanne Trump Barry. He is a strong supporter of law enforcement and gun rights, similar to Justice Alito.

 

First Amendment, This Day In Supreme Court History

This Day In Supreme Court History—January 13, 1988

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On this day in 1988, the Court decided Hazelwood School District v. Cathy Kuhlmeier, holding that students do not have a First Amendment right to publish a school newspaper free from school administrator editorial oversight.

The Spectrum, the school newspaper of Hazelwood East High School in Missouri, was written and edited by students. In May 1983, the school principal ordered the editors to withhold articles dealing with divorce and teenage pregnancy that he found inappropriate. Cathy Kuhlmeier and two other students sued the school district. The district court held that the school district had not violated the First Amendment. The Eighth Circuit Court of Appeals reversed.

In its 5 to 3 decision, the Supreme Court held that the students’ First Amendment rights were not violated. The majority opinion, written by Justice Byron White, gave the following reasons for the decision. First, the student newspaper was not a public forum. The school administrators had never demonstrated an intent to open it to “indiscriminate use” by student reporters and editors, or by the student body. Rather, they used the paper “as a supervised learning experience for journalism students.” Thus, school officials could regulate the contents of the paper “in any reasonable manner.” Second, educators do not violate the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored activities when “their actions are reasonably related to legitimate pedagogical concerns.” And third, in this case, the principal’s editorial deletions were reasonable.

In dissent, Justice Brennan stated that the principal had “violated the First Amendment’s prohibitions against censorship of any student expression that neither disrupts classwork nor invades the rights of others, and against any censorship that is not narrowly tailored to serve its purpose.” He wondered whether the reasoning of the majority’s opinion meant that administrators could censor a student who says “socialism is good” in a political science class or a “gossip who sits in the student commons swapping stories of sexual escapade.” He warned that recognizing the educator’s “undeniable, and undeniably vital, mandate to inculcate moral and political values” not be understood as “a general warrant to act as ‘thought police’ stifling discussion of all but state-approved topics and advocacy of all but the official position.”

Civil Rights, Criminal Law, Federalism, This Day In Supreme Court History

This Day in Supreme Court History—January 11, 2000

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On this day in 2000, United States v. Morrison was argued in front of the Supreme Court. Morrison was a constitutional challenge to a section of the Violence Against Women Act of 1994 (VAWA) that provided a civil remedy for victims of gender-motivated violence by allowing them to sue for damages in federal court. The question for the Court was whether Congress had the authority to enact this provision under either the Commerce Clause or the Fourteenth Amendment.

In 1994, Christy Brzonkala, a Virginia Tech student, became the first person to file a Federal lawsuit under VAWA. Brzonkala initially filed a university complaint against two fellow Virginia Tech students, football players Antonio Morrison and James Crawford, alleging that they sexually assaulted her. After a school hearing, the complaint against Crawford was dropped, while Morrison received a one-year suspension, which was withdrawn shortly before the start of the upcoming football season because school officials found the punishment “unduly harsh.” Brzonkala turned to the courts. After a Virginia grand jury failed to return criminal charges for either Morrison or Crawford in 1996, she filed a federal lawsuit against Morrison, Crawford, and Virginia Tech under the newly enacted VAWA.

Morrison’s lawyers argued that the provision allowing Brzonkala to pursue this federal lawsuit was unconstitutional because Congress lacked the authority to enact such a provision under either the Commerce Clause or the 14th Amendment. The district court agreed and dismissed the suit. Brzonkala appealed, but the Fourth Circuit  affirmed, explaining, “Such a statute, we are constrained to conclude, simply cannot be reconciled with the principles of limited federal government upon which this Nation is founded.”

At oral arguments at the U.S. Supreme Court, the conservative justices pressed Brzonkala’s lawyer, Julie Goldscheid, about the limits of her reading of of the commerce power. “The justification for the statute that you’re now giving us,” Justice Scalia argued, “is a justification that would allow general Federal criminal laws on all subjects because all crime affects interstate commerce.” Morrison’s lawyer, Michael E. Rosman, faced similar slippery slope concerns from the other direction. Justice Breyer wondered whether the more limited view of the commerce power he advocated meant that if “people are in their own houses cooking up biological warfare or it turns out that in their own fireplaces, they pollute the air in a way that will, through global warming, swamp the east coast” then “Congress is powerless to act?”

The Supreme Court issued its decision in Morrison on May 11, 2000. With a 5-4 vote, the justices affirmed the decision and reasoning of the Fourth Circuit, holding the civil remedy unconstitutional under both the Commerce Clause and the 14th Amendment rationales. Chief Justice Rehnquist wrote the majority opinion, in which he rejected the idea that “Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” The commerce power, he explained, “requires a distinction between what is truly national and what is truly local. He also held that the enforcement clause of the Fourteenth Amendment did not give Congress the power to enact the civil remedy provision, since the Fourteenth Amendment regulated constitutional violations by government actors. Morrison was a private citizen, and Justice Rehnquist concluded that there was insufficient evidence that state governments were unconstitutionally discriminating in their enforcement of protection against gender-motivated violence.

Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, wrote the dissent, arguing that Congress had authority under the Commerce Clause to pass the civil remedy provision. He cited congressional findings that “crimes of violence motivated by gender have a substantial adverse effect on interstate commerce, by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved, in interstate commerce.”

While Morrison struck down the civil remedy provision, the body of VAWA remained intact. It provided federal funding for the prosecution of gender-motivated violent crimes, established the Office on Violence Against Women within the Department of Justice, and provided resources for victims of gender-motivated violence, like the National Domestic Violence Hotline. President Obama signed the Violence Against Women Reauthorization Act of 2013 on March 7, 2013, which reaffirmed VAWA and also expanded federal protections and resources apply to LGBT individuals, Native Americans, and immigrants.

Criminal Law, Death Penalty, This Day In Supreme Court History

This Day In Supreme Court History—January 10, 1984

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On this day in 1984, Strickland v. Washington was argued at the Supreme Court. This case considered what it meant for a criminal defendant to have the “effective assistance” of counsel, which the Court had previously ruled the Sixth Amendment required.

David Washington waived his right to a jury trial and pleaded guilty to three murders in a Florida court. The judge sentenced him to death. After unsuccessfully appealing in state courts, he took his claim that he lacked effective assistance of counsel at sentencing to federal court. He lost again in the district court, but the U.S. Court of Appeals for the Fifth Circuit reversed. The Supreme Court then granted certiorari.

At the Supreme Court, Washington’s lawyer, Richard Shapiro, argued that Washington’s defense counsel admitted that he felt helpless upon learning of his client’s murder confessions and this was why he did no independent investigation into his background. The lawyer had no “strategic or tactical choice for this this total lack of investigation,” Shapiro explained to the justices. “When his client’s life was at stake,” this lawyer “could not point … to a single shred of independent evidence that would have advised the judge of a fuller understanding of who David Washington is.”

If Washington’s lawyer had conducted a proper investigation, Shapiro argued, he would have discovered psychiatric and psychological evidence showing “child abuse, deprivation, and neglect as a youth.” When “combined with the extraordinary pressures that were placed on Mr. Washington at the time of the crimes,” this  “led to the severe mental and emotional distress which resulted in his breakdown during that period of time” when the murders took place. A skeptical Justice Rehnquist asked whether a jury would really “buy that.” The defense counsel had failed to present supporting facts, Shapiro responded, and that had the potential to “make the difference.”

Shapiro argued that the Sixth Amendment demanded a test for the adequacy of counsel that was focused on the “impairment of the defense,” rather than the outcome of the case. An outcome determinative test, he argued, “assumes the defendant could have a fair trial with incompetent counsel.” A defense “counsel laboring under a sense of hopelessness,” as Washington’s lawyer was, “ is not the zealous advocate that the Constitution requires and that the sacred professional trust of an attorney requires.” Chief Justice Burger worried that such a standard would “eliminat[e] perhaps two thirds of all the criminal cases that come to trial, at least half.”

Attorney Carolyn Snurkowski argued on behalf of Charles Strickland, the superintendent of Florida state prisons. She laid the blame for the outcome of the trial squarely on Washington. He had acted contrary to the advice of his lawyer by confessing, pleading guilty, and waiving sentencing proceedings. She derisively summarized Washington’s position: “Although I pled guilty, I have no complaints about [my lawyer’s] preparation for trial, although I cut him off at the knees with regard to presenting my case to a jury or to a judge, he was ineffective at the sentencing phase because he did not do certain things.” Snurkowski argued that Washington failed to make a specific allegation about his lawyer’s competency and that he failed to demonstrate that the alleged incompetence led to prejudice or changed the outcome of the case.

On May 14, 1984, the Court ruled, by an 8-1 vote, against Washington. (Justice Marshall dissented.) In her majority opinion, Justice O’Connor held that a court should only find a Sixth Amendment violation for ineffective assistance of counsel in cases where (a) the lawyer’s performance was deficient, meaning that the lawyer failed to meet an “objective standard of reasonableness”; and (b) the deficient performance prejudiced the defense enough to deprive the defendant of a fair trial, which requires that the defendant shows a “reasonable probability” that the result would have been different if the attorney had not erred. The Court found that Washington failed to meet this demanding standard. He would be executed two months later.

First Amendment, This Day In Supreme Court History

This Day in Supreme Court History— January 6, 1964

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On this day in 1964, one of the Supreme Court’s most significant First Amendment cases, New York Times v. Sullivan, was argued.

The case began on March 29, 1960, when a group of civil rights activists ran a full-page fundraising advertisement in the New York Times. Martin Luther King Jr. was facing a trial in Alabama court on charges of tax evasion and perjury, and the advertisement solicited donations to help fund his legal defense. Titled “Heed Their Rising Voices,” the advertisement accused Alabama of prosecuting King in retribution for his civil rights activism. “Their strategy is to behead this affirmative movement and thus to demoralize Negro Americans and weaken their will to struggle,” it declared.

The advertisement also included descriptions of white southern officials repressing the student lunch counter sit-in movement that was then spreading across the South. Among the accusations was that, following a civil rights protest in Montgomery, “truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus” and then the students’ “dining hall was padlocked in an attempt to starve them into submission.”

Although never mentioned by name, Montgomery city commissioner L.B. Sullivan filed a libel suit against the New York Times and four black Alabama ministers whose names were among those listed as signatories to the advertisement. Sullivan argued the advertisement defamed his reputation and that various factual errors in the advertisement—the police never surrounded the campus or padlocked the dining hall, for example—prevented the defendants from claiming truth as their defense. Sullivan won a $500,000 judgment at trial, which the Alabama Supreme Court subsequently upheld.

At the Supreme Court, Montgomery attorney M. Roland Nachman Jr. represented Sullivan. Nachman highlighted the numerous vague referents in the advertisement, many of which, he insisted, could have been understood to be pointing toward Sullivan as responsible for oppressive acts that had not actually taken place. He also noted that the newspaper had neglected to follow its own advertising vetting standards. Furthermore, Nachman argued that no court had ever made a distinction between libel of a private person and libel of a public official—which was basically what the Times was demanding.

Columbia law professor Herbert Wechsler represented the New York Times. He insisted that nothing in the ad necessarily pointed to Sullivan as being responsible for the police department’s actions, that the instructions given to the jury were too vague, and that the First Amendment required the press be protected against suits such as this, which was intended to silence political criticism.
On March 9, 1964, the Supreme Court ruled, 9-0, in favor of the New York Times. In his opinion for the Court, Justice Brennan wrote that a public official may not recover “damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” This was the first time that the Court invoked the First Amendment to check libel actions.

“Another milestone in the long fight for freedom of the press and freedom of speech has been set up by a unanimous decision of the United States Supreme Court,” praised the Chicago Tribune editorial board, which was generally critical of the Warren Court’s doctrinal innovations. “The effect of the decision is to reaffirm the constitutional right of every citizen to criticize the government and officials of government.”

This Day In Supreme Court History

This Day In Supreme Court History—December 8, 1902

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On this day in 1902, Justice Oliver Wendell Holmes Jr. was sworn in as an Associate Justice of the U.S. Supreme Court.

The seat Holmes would occupy for the next thirty years opened up when Justice Horace Gray informed Roosevelt on July 9, 1902, that he was retiring. Roosevelt immediately wrote his close friend Henry Cabot Lodge, Senator from Massachusetts, to discuss nominating Holmes, who was then the Chief Justice on the Massachusetts Supreme Judicial Court. Holmes,  wrote Roosevelt,  “has been the most gallant soldier, a most able and upright public servant, and in public and private life alike a citizen whom we like to think of as typical of the American character at its best.” Roosevelt also hinted that he favored Holmes because he believed he shared the President’s views on American imperial policy in Puerto Rico and the Philippines. “Judge Holmes’ mental attitude …  is such that should naturally expect him to be in favor of those principles in which I so earnestly believe,” Roosevelt explained to Lodge. “Judge Gray has been one of the most valuable members of the Court. I should hold myself as having been guilty of an irreparable wrong to the nation if I should put in his place any man who was not absolutely sane and sound on the great national policies for which we stand in public life.”

In accepting Gray’s resignation, Roosevelt saluted Gray (who, like Holmes, was a native of Massachusetts and had served on that state’s  Supreme Judicial Court prior to his appointment to the U.S. Supreme Court) for his years of service and asked him postpone his retirement until a successor has been appointed. He concluded the letter with a flattering postscript: “The sentence I am about to write I suppose must not be made public because it might mistakenly be held to imply that I had anticipated a change in the Chief Justiceship! If through any accident to my good friend, the Chief Justice, there had been such a vacancy, it had been my intention to appoint you to it.” (Roosevelt’s flattery was misguided in this case: Gray’s resignation was brought on by grave illness; he would die just two months later.)

Roosevelt then wrote to the other U.S. Senator from Massachusetts, George Frisbie Hoar, who was the chairman of the Bar Committee of the Senate (what we now call the Senate Judiciary Committee). The President informed Hoar of his intention to appoint Holmes, but he explained that he would not make the appointment official until speaking with Hoar. The Senator felt slighted. “If the matter be decided, I do not understand what you expect or desire to hear from me,” he wrote. “As a Massachusetts lawyer, as the Senior Senator from the New England Circuit, and as Chairman of the Bar Committee of the Senate, I naturally feel great interest in the appointment of a Judge of the Supreme Court of the United States from my own Circuit and my own state. There is no doubt of the absolute right of The President to make such appointment on such advice as he chooses to take, or without advice, if he prefer.”

Roosevelt then sought to clarify his intentions. “I wrote to you, of course, so that if there was any reason why Holmes should not be appointed in our judgement, you would tell me.” Roosevelt explained that his appointment of Holmes was motivated by his goals of locating a nominee with the requisite professional prestige and ensuing there remains a justice from Massachusetts on the bench. “Equally, of course, my statement that I would make the appointment did not mean that I would make it if I was shown that such reason existed. I did not phrase my letter as carefully as if it was an ordinary appointment, simply because Homes being chief justice in the State, and having the reputation he has, I suppose it was a rather formal matter. But if there is the slightest reason against his appointment I of course wish to know it. Ever since Judge Gray’s sickness I have been looking over the field as carefully as I could in Massachusetts, as I wish to fill the place from that state, if possible.”

On August 11, Roosevelt wrote Hoar once again regarding Holmes’ appointment. He was moving ahead on the matter, he explained. “It would now be an idle formality for me to consult the public at large about Holmes – whatever it might have been well to do at the beginning – and so I shall announce his appointment.”

On that same day, President Theodore Roosevelt gave Holmes a recess appointment to the Court. Holmes, however, chose not to begin serving on the Court until the Senate confirmed his appointment, which it did on December 2.

Six days later, on December 8, 1902, Oliver Wendell Holmes Jr. was sworn in.

OT 2016

The Trump Presidency and the Supreme Court

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What does a Trump Presidency hold in store for the Supreme Court? Answering this question requires considering two separate, albeit related, questions: (1) the impact of one or more Trump nominees on the Supreme Court, and (2) the possible legal challenges to policy Trump has endorsed that might end up in the Supreme Court. In this post, I’ll focus on the first question; in a subsequent post, I’ll look at the second.

One of the immediate implications of Trump’s victory is that President Obama nominee Merrick Garland’s hopes of getting on the Supreme Court are over. The seat left vacant by Justice Scalia’s death in February will remain open until the new President has an opportunity to make his own nomination. (Some have urged Obama to simply give Garland his seat based on the fact that the Senate’s refusal to hold hearings constitutes some sort of consent. But it is hard to imagine the current President seriously considering this constitutionally questionable path.) The Republican strategy of refusing to hold Senate hearings on the nominee until after the election worked. What looked a few weeks ago like a desperate stalling action that had run its course now looks like a high-stakes gamble that paid off.

Liberals are now urging Democrats to make a stand against whomever Trump nominates to the Court. Although some sort of stand will surely be made, it is hard to see how the Democrats can change the outcome. With a Republican-controlled Senate, Trump’s nominee will get a seat on the Court. Democrats will likely filibuster on Trump’s first Supreme Court nominee, which will just as likely result in the Republicans responding by revising its Senate rules and ending the filibuster for Supreme Court appointments.

The elimination of the filibuster will have effects on the Court for years to come. The predictable outcome of allowing the Supreme Court appointment process to operate with a simply majority requirement will be nominees whose ideological commitments place them somewhat further from the moderate middle—think more justices like Scalia and fewer like Roberts—at least when the same party controls both the White House and the Senate. Regardless of whether this is good or bad for the Court, it will allow Senators to extract more political advantage from the Supreme Court nomination process.

Who will a President Trump nominate to the Supreme Court? When it comes to Court nominees, Trump’s comments have been pretty standard Republican fare. During his campaign, Trump released a list of twenty-one people and said he would select his nominee from the list. The list, which Trump’s team compiled with the help of the Heritage Foundation and the Federalist Society, was filled with respected judicial conservatives, mostly judges on state supreme courts and federal courts. Trump has promised to appoint a justice who would overturn Roe v. Wade and protect gun rights. In a post-election interview, he reiterated his opposition to Roe and his commitment to appointing “very pro-Second Amendment” justices. For a candidate who defined himself by defying the Republican Party establishment, here he has seemed perfectly willing to fall in line.

If there is any space between Trump’s statements and Republican orthodoxy on Supreme Court appointments, it may be on the issue of gay rights. In the same interview in which he reiterated his opposition to Roe, he also said that he saw no reason to reverse the Supreme Court’s 2015 same-sex marriage decision, which he described as “settled” and “done,” adding that he was “fine with that.”

If Trump follows though on his campaign promise and puts a conservative on the Court who will carry on the legacy of Justice Scalia—and with a Republican-controlled Senate there is no reason to think he would not—then the new, post-Scalia Court will look very much like the old Scalia Court. The year or so of an eight-Justice Court will be a strange interlude, ahistorical footnote, its effects quickly erased. Those decisions in which Justice Kennedy sided with the liberals, such as affirmative action and abortion, will be safe for now. Those decisions that came down to a 4-4 split will likely be revisited in the near future. In this latter category, the 4-4 decision that will surely be revisited in the near future is the public sector labor unions case, Friedrichs v. California Teachers Association. The unions dodged a bullet when the Court split in the this case, thus allowing the Ninth Circuit decision, which went in favor of the unions, to stand.

The other major 4-4 split, United States v. Texas, will not be affected, since (a) it had the effect of keeping in place a lower-court ruling that was accepted by the Court’s conservatives (and would be approved by a new Trump justice, assumedly); and (b) it was a challenge to an Obama Administration immigration policy that Trump has pledged to reverse.

On the major hot-button issues, it is hard to see a single Trump nomination changing the direction of the Court. Even if the nominee wanted to go against Trump’s stated position and overturn the same-sex marriage decision, there would not be the votes to do so. There would still be only four justices to reverse course on affirmative action and abortion, both issues in which Justice Kennedy joined the liberals in major decisions last June.

But Trump may have an opportunity to appoint more than one justice to the Supreme Court. Some liberals had been urging Justice Ginsburg, who at 83 is the oldest member of the Court, to step down while Obama was still President, calls she pointedly rejected. Now the question is how much longer the she can continue to serve. The spectacle of the Ginsburg health watch will have an added element of reality-show drama, since it was Justice Ginsburg who made news over the summer by attacking Trump (who returned fire, of course) and then quickly backtracking and conceding that her comments were ill-advised.

And Justice Ginsburg is not the only member of the Court whose health will be of particular issue to Court watchers. If either of the next-oldest justices—Justice Breyer (78) and Justice Kennedy (80)—were to step down or be unable to continue to serve, the ideological configuration of the Court would be changed dramatically. If Justice Ginsburg or Breyer are replaced by a conservative justice, the Court will move to the right on many significant issues. If Justice Kennedy is replaced the rightward shift would be less pronounced but still potentially significant. On those issues on which Kennedy sided with the liberals (gay rights and, most recently, abortion rights and affirmative action) there will likely be some more conservative outcomes.

This Day In Supreme Court History

This Day in Supreme Court History—November 12, 1975

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On this day in 1975, Justice William O. Douglas retired. Appointed in 1939, Douglas’s thirty-six years on the Supreme Court made him the longest serving justice in U.S. history.

The brilliant, irascible, and often controversial justice grew up in Yakima, Washington. After graduating from Columbia Law School in 1925, he briefly practiced law before joining the law school faculty at Columbia and then Yale. In 1936 he left Yale to serve on the newly formed Securities and Exchange Commision; a year later he became SEC chairman. Franklin Roosevelt appointed Douglas to the Supreme Court in 1939. At age 40, he was the second-youngest person ever appointed to the Court.

Douglas stood out on the Court for his aggressive defense of civil liberties. Along with Justice Hugo Black, he insisted–usually in dissent–that anti-communist policies of the McCarthy Era violated the First Amendment. He wrote the opinion for the Court in Griswold v. Connecticut, which struck down a statute prohibiting the use of contraception as a violation of a constitutionally recognized right to privacy. (Douglas famously located the right to privacy in the “penumbras” and “emanations” of the Bill of Rights.)

His written opinions tended to brisk and bracing. He showed little patience or interest in the careful parsing of doctrine. He painted with broad, bold brushstrokes. His critics derided his style as a failure of judicial craft–and even his supporters often wished he would make more of an effort with the legal reasoning of his opinions. He could write stirring prose when he was moved to do so. “A function of free speech under our system of government is to invite dispute,” he wrote in Terminiello v. Chicago (1949). “It may indeed best serve its high purposes when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging.”

Douglas’s final years on the Court were difficult. His relations with his colleagues, which were never smooth, grew increasingly strained. In 1974 he suffered a stroke, which left him partially paralyzed. The other justices finally had to persuade him to step down. President Gerald Ford then filled his seat with John Paul Stevens. Douglas lived for five more years after leaving the bench. He died in 1980 at the age of 81.

Justices

A Public Interview with Justice Kagan

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Post by Anna Jirschele, ISCOTUS Editor and 2L at Chicago-Kent College of Law.

The annual Equal Justice Works Conference and Career Fair took place last weekend in Washington, D.C., and the guest of honor was the Supreme Court’s very own Justice Elena Kagan. Often interviews with Supreme Court justices center on the work of the Supreme Court. Justice Kagan’s interview at the EJW Conference was different. For that hour, she was just Elena Kagan discussing her life story.

Justice Kagan was born in raised in New York City. Her father was an attorney and her mother was a teacher. She joked that her mother was always her toughest critic when it came to writing and she instilled in her the importance of “edit, edit, edit.” The more you edit, the better your work gets, she said. Justice Kagan went on to discuss the importance of her own education. “I went to law school for all the wrong reasons,” she confessed. But once at Harvard Law School, she found her passion. She realized that with a law degree she could truly make a difference in the world and help people.

Throughout her interview, Justice Kagan spoke in an understated way with sincerity and humor about her accomplishments–among them becoming the first female dean of Harvard Law and the first female Solicitor General of the United States. She offered a myriad of advice to an audience packed with law students hanging on her every word. She believes law students are “too risk averse” and too quick to say no to an opportunity because “that’s not in my plan,” noting that the best opportunities are the ones you didn’t expect. She never spent more than six years in a position because she has wanted to constantly be trying something new where the learning curve is steep. When asked by the moderator about her current job being a lifetime appointment, Justice Kagan joked, “well, it’s not like you can say ‘call back later’ to the President when he calls.” The audience erupted in laughter when she said she’s lucky she really likes her position serving on the High Court.

Justice Kagan began discussing her tenure as the junior Justice on the Court with a story about frozen yogurt. When she first arrived, she was asked to serve on the committee overseeing the Court’s cafeteria. Her first order of business was to secure a frozen yogurt machine for the cafeteria. She soon became known as the “frozen yogurt Justice.”

All jokes aside, Justice Kagan could not have spoken more highly about her colleagues on the Court. She noted that you can never take anything personally because you have to have good relationship with your colleagues and work with them on the next case. She described her colleagues as “committed and working in good faith.” And as much as “you’d like to win out of competition,” every justice is “trying to get it right as much as you are.” She reminisced about her relationship with late Justice Scalia by saying “he truly was my buddy.”

Perhaps the best part of her interview, was when the moderator asked Justice Kagan what she would would like her legacy to be. “Oh, the legacy will take care of itself,” she answered. “I’ll leave that to other people.” All she wants to do is “give it my all, work as hard as I can on every case to get it right, and have a high standard for my work.” She insisted that the key to great career is to find something that makes you “eager to go to work because it’s challenging.” Find something that “strikes you as meaningful, exciting, and fun.”