Interview: Leah Litman

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Leah Litman (UCI Law) 

Leah Litman is an assistant professor of law at the University of California, Irvine School of Law. She researches and writes about constitutional law, federalism, and post-conviction review. After graduating from the University of Michigan Law School, she clerked for Judge Jeffrey Sutton on the Sixth Circuit and Justice Anthony Kennedy on the Supreme Court. She currently co-hosts First Mondays, a popular podcast about the Supreme Court. You can follow her on Twitter here

Where did you grow up, and what were your main interests?

I grew up in Minnesota outside of the Twin Cities. And I don’t know where or when you want to me to start with my interests, but I was very interested in horses. I think I wanted to be a horse until fourth or fifth grade. And then I was very interested in dolphins, and then math. So basically I was really cool for all of my life.

Who were your most important teachers or role models?

I had a few teachers that I can really remember. One is my math teacher when I was a junior in high school, Larry Johnson. He was the best math teacher I ever had. And he would just, in a kind way, try to find ways to trip you up by challenging you. When he knew you were smart enough to master the material, then he would keep giving you extra problems and kind of poking at it — but never in a way that was designed to make you fail. It was a way to help you learn. I loved that class.

I also had amazing government and history teachers, Mr. Simpson and Mr. Welckle. And they ran these amazing historical simulations. We were business owners or stock investors and they simulated the Great Depression and the crash of the stock market. They made us all countries and we would battle each other for natural resources, and I revolted and declared war on them (the teachers, who had the role of “World Council”). It was just like a lot of really cool learning that I remember getting really into and excited about.

Was it a hard decision to choose chemistry as your college major?

I started out thinking I was going to be a math major, but I decided that wasn’t how I wanted to spend four years of college. So I took an organic chemistry class, and I really liked it. But then I didn’t like the lab work. And I wasn’t interested in either becoming a doctor, which is what a lot of the chemistry or biochemistry majors were interested in, or getting a PhD and doing long-term research in a lab. It just wasn’t something I wanted to do forever.

Are there any mental models or things that you learned in chemistry that are still helpful to you?

I think chemistry helped with a few things. One is the degree of knowledge you need of the underlying material in order to apply it. In chemistry, you do a lot of equations where you’re synthesizing compounds or chemicals. In order to get to the final product, which is super complicated, you have to work backwards and work with all of the building blocks. This is similar to how well you have to know the ins and outs of cases in order to discuss them intelligently and apply them. Beyond that, I think the deductive reasoning that goes into chemical synthesis is also very similar to legal reasoning. You try one pathway, you see where it goes, you see where it stumbles — you try another and see if it works better. That way of thinking, both the degree of specific knowledge you need and also the analytical testing, is similar to law in some respects.

How did you get involved with the Harvard International Review?

I showed up at college having done debate in high school. And there happened to be this person at the Kennedy School who had written some of the evidence we used in debate. So I went over there and thought, would this person want a research assistant? He did. He did some work in international relations, so I got interested-ish in that field and then went to this international review journal.

As editor-in-chief, were you responsible for directly editing other people’s work, or was it more of an oversight position?

The editor-in-chief role was editing both student work and author work. It was a similar structure to how law reviews work. There were editors who were in charge of the student-written portion, and then editors who were in charge of the articles. They would do initial edits, and I would look at them after that and then send them back to the author. Then at the final stage, where we were fitting everything into print and doing final page proofs, I would also do further editing on those pieces.

Afterwards, how interested were you in a career in journalism or editing?

You know, I wasn’t really. But I don’t know if that journal was a particularly great window into how journalism might be. It was just two people kind of in the basement, fiddling with different softwares and trying to format all of the images. So… no. [laughs]

I kind of want to go back to one of your tweets from a couple months ago. I don’t want to freak you out…

Oh dear, which one? [laughs]

This tweet just popped into my head when I was thinking of questions. You said that you were petrified for the first half of law school, and nervous to talk for the second. I know it’s hard to pinpoint, but why were you so nervous? Was it talking in front of other kids, imposter syndrome, intimidating professors…

I think it was a combination of a general fear of failure and imposter syndrome. Whether that was directed at peers, whether that was directed at professors — unclear. But obviously a lot of it was coming from me and my obsessing over what other people thought of me — and perhaps, most importantly, what I thought of myself. Because I was always my own harshest critic. I remember I got an email from one of my former professors almost three years ago. In the course of that exchange, it became clear that I remembered an occasion where I had offered what I think of as a wrong answer. I had not answered some question to my satisfaction. Of course, he doesn’t remember this at all. He doesn’t remember anything I said. But almost eight years after the class, I can still remember questions that I think I struggled with. So why that was or why that is, I don’t know, but it is true.

You have no idea how good that is to hear, because I often feel the same way. Do you have any advice for how to deal with that — to curb your own self-criticism?

I wish I had a great answer, because that’s still kind of behavior that I can feel myself falling into at some points. I would say a combination of things. One, it is really helpful to keep in mind that a lot of this is just coming from you and your own standards. No one is going to remember anything you say that is good or that is bad, right? No one’s going to remember that except for you some amount of time after that.

Another thing is to find people in your life who can tell you when you’re engaging in those kinds of tendencies. For example, I have a wonderful former professor, who, when we are going back-and-forth over email or on the phone, will notice when I start to say things that are reflective of my own self-skepticism. She will point that out and say, “Why are you doing that? That is not going to make it better.” She’s right. So having people identify when you are doing that is helpful.

I think I mentioned in the tweet you’re referring to that part of what helped is that every semester for the first three semesters I had some amazing professors who also happened to be women—Professor (now Judge) Larsen, Anna Rose Mathieson, and Eve Primus.  And the last two also graduated from Michigan! So having those role models helped.

Something else that’s helpful is to find people you’re close enough with where they will tell you when you do well, and they will tell you when you don’t, in ways that aren’t negative or hypercritical, such as “Here’s something you could do better.” This group of people may be a combination of peers and mentors who support you. You should feel like you can make mistakes in front of them, and they will still think highly of you anyways. All of that is really helpful to becoming more confident and feeling less nervous about not being perfect in every second of your life.  

How long it take for you to develop this kind of support group?

I didn’t necessarily have that in high school. In college, I can think of three friends who I became really close to. They were good at supporting me.  But I could also go to them and say, “Oh, I don’t know if that was a good thing to do,” and they would be like, “Yeah, maybe you could have done this instead.”

Something else I do, which is silly and everyone will kind of have their own thing, is I love RuPaul’s Drag Race. And I have gifs — I have these images on my phone. They’re just images that in my mind project someone’s confidence and success. I look at them, and I then I feel the emotions that I felt when I watched them doing it for themselves. That can be helpful in some ways, when I start feeling negative.

I also think it’s helpful to find a hobby that gives you fulfillment, but is sufficiently different from work that you can get a high that isn’t just tied to the way you tend to evaluate yourself. For me, it’s swimming. I’m really into outdoors and competitive swimming. I can say, “I’m doing really well there,” and that can give me a pick-me-up if I’ve maybe faltered elsewhere.

How long have you been swimming?

I’ve swam since I was super little. I quit when I was in ninth grade because my younger sister was a lot faster than me, and I couldn’t handle it. But then I picked it back up in law school.

In college, you changed your mind about going into chemistry. When you were in law school, did you ever have similar moments of doubt about becoming a lawyer?

No, that never really crossed my mind in law school. I spent a year at a small firm after college before I went to law school, so I had a pretty good sense that I enjoyed the practice of law. There were a lot of points where I just wasn’t sure what kind of law I wanted to do or what kind of lawyer I wanted to be. But never during law school did I think, oh, maybe I don’t want to be a lawyer.

Why was your year at the law firm so appealing?

I really liked the iterative process that the firm engaged in, whether it was in litigation or a kind of public relations management issue that they got involved in. I liked all of the different questions that they found themselves asking. I liked the long-term planning. We were always thinking, “If we make this argument, how is it going to play out? How is that going to affect this other aspect of the representation?” All of that I just enjoyed.

You said that you weren’t sure what kind of lawyer you wanted to be. Which law school classes helped you make that decision?

I loved classes where there was a lot of law: areas in which there were a bunch of doctrines or procedure, a lot of rules. It’s complicated. The rules are in tension with one another. So you have to step back and figure out how to reconcile them, and figure out which ones can be reconciled and which ones can’t. Where is the tension, and how can I resolve that tension in various ways that are more or less satisfying? So, those classes for me were Criminal Procedure and Federal Courts. They probably stuck out to me the most when I was like, “Maybe I want to do this kind of law after law school.”

Were there any classes you expected to dislike or felt ambivalent about that you ended up really enjoying?

Let’s see. I was a bit ambivalent about Evidence and Employment Law, and it turned out that Evidence had enough rules that I liked it anyway. Employment Law I was unsure about because it seemed like it spanned so many different areas, like it’s some contracts, it’s some torts, it’s some statutory law, it’s some constitutional law. But I ended up really liking it. We also did a bit of arbitration stuff, but it was really just a survey of so many different possible questions that might arise in the context of employee-employer relationships.

On a scale of one to ten, how hard did you work in law school?

I would say I worked pretty hard. I guess I’ll put it at 7.5 — that seems like a reasonable number. But what does a 7.5 mean to me? I worked hard, but that was not to the detriment of being able to travel, see friends, take up swimming, do yoga. But during the days I was pretty diligent. I came off of working a 9-5 job, so it wasn’t that strange to me to be working during working hours, whether that was doing the reading or outlining. On that kind of schedule, I didn’t find it particularly difficult to do all the other things I wanted to do.

When did you become interested in habeas law?

Michigan had a class on habeas that I actually never took, and it’s one of my great regrets.

What! That’s crazy.

I know, it’s astounding. It is crazy. After law school I clerked on the Sixth Circuit, and the Sixth Circuit hears a lot of habeas petitions out of Michigan and Ohio, as well as federal sentencing cases. And that was where I really became interested in habeas, in part because that’s also an area of law where there are so many flipping rules. People don’t like to keep track of them, it’s kind of messy, and I gravitate towards that. Whether that’s the chemist in me, or just the first child who likes a lot of rules, I don’t know. But it was really during clerking that I became interested in and immersed in habeas. Also, partially because my co-clerks found it less interesting, and they were happy to allow me to take those cases. Which I did.

And then when I went to my second clerkship, that was also a point where the co-clerks weren’t as interested in habeas as me. A lot of the clerks in the building had clerked on the D.C. Circuit — they don’t get habeas petitions involving state criminal convictions, and so were less familiar with it. Again, over the course of that year, I became more interested in and immersed in it. By the time I emerged from my clerkships, I thought habeas was really cool.

You’re known on Twitter for writing really quickly. Something will happen, and then a couple hours later you’re like, “Here’s my New York Times op-ed.” So what does your writing process look like when you have a tight deadline?

I think part of the reason why I can turn around stuff quickly is because I get to write about what I want. I’m not given assignments that say, “Write about this issue. Do it in twelve hours.” I only write about things when I have an idea and I already know what I want to say about it. So once you have that, then the process of writing for me is just putting down all of my thoughts on paper. And the way I write is, I will try to get a draft out so I can put my thoughts down on paper and then refine it. That takes a while when writing something that is longer, because I don’t want to lose track of my thoughts. A thinking process for a 25,000 word article is, in my world, like 50,000 words. I need to figure out what I’m thinking, and I do that by writing.

When I’m writing something like a blog post or an op-ed, and it’s just one point on a case or an argument, then the iterative process of figuring that out and refining it doesn’t take as long. That’s why I think it maybe takes a little bit less time than it might if I was writing like an assignment. I think it’s also a matter of practice.

I don’t exactly know when I started writing quickly. I remember getting comments when I was working like, “This was fast.” And I just didn’t really have a sense for what the right pace was. I think that a big part of why I can do it now is that I just write whenever I want to, on what I want to, and so I’m only writing once I know I have something to say. That is where a lot of the time goes.

That’s interesting what you said about drafts. Sometimes my own self-criticism will manifest itself in my writing, and I’ll just have to keep editing and editing it. Drafts are great because you can get all the bad stuff out one page and refine it — but it’s hard!

Everyone is different. Sometimes I wish I could be the person who will just take a long time, and then the first draft is like a polished symphony because every paragraph is perfect. I can’t do that because it’s not the way my mind works. I’m like, “Well, what about this? If I say that, then this happens…” I need to map out all of my thoughts in order to refine them. And again, when I’m shooting for a 1500 word blog piece, I can bang out 3000 words of thoughts pretty quickly. Once I have my thoughts, I refine them and figure out what I actually think. It just kind of goes from there.

How do you organize your thoughts?

I’m an outliner, so I don’t do full paragraphs of outlines, but I will structure an idea with Roman numeral subheadings. Subheadings are below that — I want to address this point, I want to respond to that counter-argument, etc. That’s just how I think, in a kind of numbered, structured fashion. When I get that out, that will put me a long way to where I want to go.

Which writers have influenced your writing style or outline method?

I don’t know if I really got the outlining method from anyone or any place in particular. As far as writers who I particularly liked… Gosh. I remember someone telling me, “Oh, you want to become a good legal writer? You read the best legal writers.” I read Supreme Court opinions and briefs a fair amount. I don’t know if I can say that there’s X person I’m trying to emulate, or this is where I got my idea from. But I love reading Michelle Goldberg and Lindy West. They just have these voices, and a flow to their arguments and craft that I really like. They’re more op-ed columnists, but I really like reading them.

What are your tips for working through writer’s block (if, in fact, you ever have it)?

It depends on what you mean by writer’s block. If the writer’s block is that I have an idea and I can’t bring myself to actually start implementing it, then… gosh. I don’t really know that I have any great techniques. I have a heavily scheduled Google Calendar that is very color-coded, and when I’m busy I will carve it up into blocks of time. And I’ll say, today, you’re going to work on Part 2A-1. Then, I feel really crappy when I look at my Google Calendar, the time is up, and I can’t check something off the list. So that helps a little bit, having general goals.

Sometimes it’s allowing myself to take breaks or do things that will put me in a writing mood. I’m more of a morning person, so I’ll go for an early swim and go into the office. Then I’ll have three hours, and during that time I’ll be able to write more than if I’d lollygagged around in the morning and then went in in the afternoon.

Getting beyond writer’s block is sometimes knowing when to quit. If I sit in front of a computer and mess around and go down rabbit holes for a day, I lose energy, I get frustrated, and then it’s harder to pick up the next day. So when that happens, I think I’ve gotten better at learning when to cut bait and just say, “Today is not going to be a full-time writing work day. I’m going to leave, I’m going to go for a bike ride, I’m going to go read this book or article, or do something else where I’m getting in a different gear instead of dragging myself and not getting stuff done.

You’re in California, where I assume the weather is perfect all the time. How hard is it to resist the temptation to be outside instead of focusing on your work?

Not at all. Because it is nice all the time, I know that it will always be nice tomorrow and the day after that and the day after that. It’s not like I need to spend today going for that bike ride and enjoying the weather, since it’s also going to be mid-70s and sunny and no clouds tomorrow. I know, not to rub it in or anything. It does have that going for it. Other than that, not wanting to get sunburned because I’m super pale; I probably do not belong in the sun all day long in Southern California.

Okay, here’s a question I’ve also asked Ian Samuel. When you clerked for Justice Kennedy, how much did you struggle with being deferential to the justice and being assertive enough to make your points?
I didn’t really view my role as being assertive to make my points. I think that in general, it was easy insofar as the general rule is that they’re the principal, you’re the agent, and your job is to do the best job you can. One difficulty with that particular clerkship was that Justice Kennedy was so nice, he would not always make clear — “No, this is what I decided to do, and it’s not what you seem to think I should do.” It wasn’t always clear when the justice had made his decision.

Huh. That’s weird that he wouldn’t always communicate his decisions to you guys.

He wouldn’t always clearly communicate when he had made a final decision. He would communicate, “Oh, I’m thinking about this,” or “what do you think about that.” But then he wouldn’t say, I have definitely decided to do X. And so you didn’t know when your responsibility was to kind of engage in this iterative process to help him decide what he wanted to do, versus refining the decision that he had made.

When you say a “final decision,” does that mean he’s ready to start drafting an opinion? What do you mean by that?

It depends! Sometimes he had made up his mind after argument before votes, and sometimes he would defer a final decision, wanting to see how things wrote. Sometimes he would revisit what he had maybe said would be his final decision. So the final decision was really just the moment at which he had decided he was going to vote one way. But that final decision might happen after he suggested he had already made a decision.

I’ve heard different things about writing during clerkships. Neal Katyal says that he didn’t write very much for Justice Breyer, and that his writing didn’t greatly improve. Ian Samuel said that he wrote all the time. What was your experience?

I think that maybe how much writing you do depends on who you’re clerking for. On the Court of Appeals, I think I did a fair amount of writing. I would do memos on all of the cases that the judges participated in, and just the volume of cases the Court of Appeals hears is perhaps a bit more than what the Supreme Court hears.

That particular year, I feel like my writing got a lot better because of the way that the judge I clerked for did edits. He would make his edits in a different font in the same document, and then I could see the changes that were made. The judge I clerked for was a really great writer. I could see where he had improved my writing, how he had improved my writing, and that was really helpful to learning as a writer.

When I got to the Supreme Court, there was a similar writing aspect. You write memos about the cases the Court hears, and then the cert pool memos about the cases the justices might hear. I still feel I was doing a fair amount of writing in that clerkship. Some of the writing was in the cert pool — that can be a different style of writing. It’s a bit more formulaic than other kinds of writing you might do in the clerkship. And so that feels perhaps like less of an opportunity to develop a voice as a writer, or do a bit more stylistic stuff than you might do in the other aspects of writing. But I still feel like I did a good amount of writing in that second clerkship.

Supreme Court law clerks are petrified that their memos may be DIG-ed [dismissed as improvidently granted]. I know the Court of Appeals doesn’t have cert memos, but were there any analogous fears when you clerked for Judge Sutton?

I’m trying to think of an embarrassing thing you might do as a court of appeals clerk that’s sufficiently analogous to recommending a case that’s dismissed as improvidently granted. And I don’t know that there is a certain thing you can do that’s super embarrassing beyond not preparing a judge for a case or getting something wrong and missing a case that might be relevant.

Right now, people are talking about Brett Kavanaugh’s law review articles, his opinions for the D.C. Circuit, the gender of his law clerks and even his baseball tickets. In your view, is there anything in his life or career that should be getting more attention?

I think that maybe some things deserve a bit less of a focus. Some things deserve a bit more. I don’t know if there are things that are not getting any attention that need to be discussed. For example, I don’t think the testimonials of former clerks — “This person is nice, and I like him” — are that relevant. There’s a super-strong norm against saying anything bad about your judge. If anyone is willing to break that norm, that is very relevant because that suggests the degree to which that judge was not a good boss or behaved poorly in some ways in chambers. But the norm of not speaking poorly about your judge is so strong that having people say nice things about a judge after having clerked for him or her is just not that relevant. So that’s one thing that maybe should be getting less attention.

I don’t think there’s much to be gained by having a bunch of people who travel in similar circles say this person is smart, well-qualified, and well-credentialed. I am kind of more of the view that, let’s talk about this person’s ideas about their law and their substantive and interpretive visions for the law. How might those play out, and are they visions that we want to defend or criticize? I think that that’s probably a more useful thing to do, particularly when you’re talking about someone who’s been a judge for over a decade.

If you were elected president, who would you appoint to the Court?

I would appoint Merrick Garland to fill the seat that he was appointed to fill and never got a hearing for. That would be where I would start.

Which qualities would you value most in a Supreme Court nominee?

I think belief in the proper role of courts — that courts shouldn’t be in everyone else’s business. So some preferably strong view of judicial restraint and judicial limits, particularly when reviewing Congressional legislation. I think someone who has had the experiences that are a little bit different than the typical mold of a Supreme Court justice. I think it would be great to have someone who has done public defense work. I think it would be great to have someone who’s represented tort plaintiffs. I think it would be great to have someone who’s done more trial level work, and who hasn’t grown up being a lawyer in this very narrow group of lawyers on the Washington, D.C. scene. Those are attributes I think would add value to the current bench, and that’s what I would look for.

Chief Justice Roberts has talked about addressing sexual harassment in the judiciary, but it’s hard to feel optimistic about anything other than a report coming out. How optimistic are you about the situation?

It’s hard to feel optimistic when I saw what emerged from the judiciary’s working group in the last several months. There has been no appetite to ask what happened. I think knowing what happened is an important part of figuring out how you can prevent it or fix it. I think another big part is asking, why did the system fail? What enabled Judge Kozinski — and there’s no reason to think he is the only judge who abused and harassed his clerks and others — what enabled that to continue? Those questions, to my mind, have not been asked, much less answered, and before there are indications about doing that, I don’t have a ton of faith that there’s going to be some big solution that emerges from all of this.

Some of my concern also stems from the fact that a lot of the dysfunction that contributed to the problem is the underlying social and cultural norms that make it easier to value a harasser who has accumulated a lot of power over time. It’s easier to value that person at the expense of people he is minimizing, people he is abusing, and people he is kind of walling off from certain circles. Until we adjust our ability to assess who we can empathize with and who we value, then it’s always going to be difficult for systems, peers, and supervisors to make a judgment about valuing a young woman or man who’s trying to break into certain circles but is being excluded because someone is mistreating them. Seeing the kind of general inability of people to ask — “What could I have done to make it better?” — and then doing that thing is not super encouraging.

Other interviews conducted by Anna Salvatore: Lawfare editor-in-chief Benjamin Wittes, former Solicitor General Neal Katyal, New York Times Supreme Court correspondent Adam Liptak, SCOTUS court artist Art Lien, First Mondays co-host Ian Samuel, Fix the Court Director Gabe Roth, and litigant extraordinaire Fane Lozman. 

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Tuesday, July 24, 2018

by Anna Salvatore

I’m back! Sorry for not posting in a while. For much the last week, I’ve been in the D.C. area for a journalism program. Now I’m staying with my grandparents, and I should have a lot more time to write about nerdy SCOTUS things.

Today I noticed a Wall Street Journal article about South Dakota v. Wayfair. About a month ago, the justices held by a 5-4 vote that states can force out-of-state retailers to pay sales taxes. This case, although very important, was overlooked amidst decisions on unions and the travel ban.

Don’t tell that to New Hampshire. The “Live Free or Die” state is paying plenty of attention to Wayfair, and it’s not particularly happy. The decision was a “huge mistake,” says New Hampshire Governor Chris Sununu. Legislators will soon propose that other states register with the New Hampshire attorney general 120 days before taxing remote sellers.

Here are some excerpts from the article, which I linked to above:

The bill, crafted by a bipartisan, unanimous task force, gives the attorney general the ability to seek injunctions against other states. Businesses could still choose to collect and remit other states’ sales taxes rather than risk potential penalties.

New Hampshire’s attempts to restrain fellow states’ collection efforts will have trouble succeeding because the Constitution’s “full faith and credit” clause requires states to respect one another’s legal judgments, said Daniel Hemel, a professor at University of Chicago Law School specializing in taxation.

“Our Constitution doesn’t allow states to wall themselves off from the operation of other states’ laws,” he said. “Maybe Chris Sununu would get some political points from the small business community in New Hampshire, but it doesn’t seem to me like a serious endeavor.”

States with sales taxes are working on their regulations to get out-of-state sellers registered in their systems and collecting the tax. In some cases, they need to wait for their legislative sessions for new or revised laws.

Silver Medal SCOTUS

By Jackson Foster

You’ve got to feel for Thomas Hardiman. “Always the bridesmaid, never the bride” is a cute maxim when you miss out on the homecoming court, not the highest court in the land. And he’s not the only esteemed jurist to be overlooked by a capricious commander-in-chief. Many judges have endured the unique pain of finishing second for a Supreme Court seat. Their buried judicial aspirations filled me with not just sympathy, but a morbid curiosity. Somewhat vengefully, I began exhuming the hopes of those who came oh-so-close.

Welcome to the Silver Medal Supreme Court, comprised of the judges, politicians, and professors who succumbed to senatorial scrutiny or presidential preference. Some of the members are obvious, having undergone a calamitous confirmation process. Others were considered briefly, and still others had the audacity to turn down their rightful seat.

I’ve listed the Silver Medal Justices for OT 2017. They are paired with the current Justice they’ve replaced and a brief account of their downfall and ideology at the time of their consideration. They’re listed in order of seniority.

Chief Justice Douglas Ginsburg— Anthony Kennedy

Douglas Ginsburg, the Chief Justice of the Silver Medal SCOTUS, serves as the ideological figurehead for Reagan’s religious right. His writings on constitutional issues are scant, but he is undoubtedly conservative— exhibited best by his frequent partnership with Robert Bork on antitrust law. Ginsburg’s confirmation was derailed by NPR’s Nina Totenberg, who revealed that he smoked marijuana as a student and professor at Harvard Law School.

Justice Emilio Garza— Clarence Thomas

Emilio Garza would also be a staunchly conservative justice. He was a special favorite of John Sununu, the H.W. Bush White House Chief of Staff, despite his vague stances on constitutional issues. First appointed to the Western District of Texas by Ronald Reagan, and then to the Fifth Circuit by H.W. Bush, his lack of experience in the federal judiciary, along with the importance of minority representation in Thurgood Marshall’s seat, cost him the nomination.

Justice Mario Cuomo— Ruth Bader Ginsburg

Displayed by his scathing criticism of Ronald Reagan’s policies in a keynote address at the 1984 DNC, Mario Cuomo’s stance on most constitutional issues is unabashedly liberal. The face of the Democratic party from that moment on, he reluctantly declined to seek the nomination for the presidency in both 1988 and 1992. It is that indecisiveness (and, perhaps, attachment to New York) that led to his refusal of Clinton’s nomination.

Justice Richard S. Arnold— Stephen Breyer

Arnold holds the title of being “perhaps the best judge never to serve on the Supreme Court.” He brings to the Silver Medal Court an interesting ideological blend: he frequently disagreed with Justice Brennan, for whom he clerked, but President Clinton considered him “a principled liberal.” His brother, Judge Morris Arnold, highlighted his centrist tendencies: “[He has] sense of balance and fairness. He never [has] an apparent ideological ax to grind.” Unfortunately, Judge Arnold’s poor health prevented his nomination.

Justice Edith Brown Clement— Chief Justice John Roberts

Justice Harriet Miers— Samuel Alito

I’ve bunched these two together because of their relatively similar circumstances. Both are females with conservative credentials, and both were, at one point, considered to fill the spot left by Justice Sandra Day O’Connor. Judge Clement’s limited paper trail on constitutional issues was a big plus in the eyes of the Bush White House. However, her excessive self-promotion and the Chief Justice Rehnquist’s death pushed John Roberts to the forefront. The Bush White House tapped Miers over Clement, but she was doomed by her abysmal pre-confirmation efforts and her allegedly liberal stance on abortion.

Justice Janet Napolitano— Sonia Sotomayor

Justice Diane Wood— Elena Kagan

Again, these two are bunched together because of their apparent similarities. Wood and Napolitano both bring to the Silver Medal Court fundamentally liberal values and strong legal experience (Wood serves on the 7th Circuit, and Napolitano was the Attorney General of Arizona). There were no obvious flaws that kept them from the nomination, but President Obama decided to move in other directions.

Justice Merrick Garland— Neil Gorsuch

“President Obama could easily name Merrick Garland, who is a fine man.” How those words have come to bite you, Sen. Hatch. Barbs aside, there’s not much to be said about Merrick Garland that one doesn’t already know. He is the moderate liberal of the Silver Medal Court, known for his excellent writing.

Now, for a discussion of the ideological differences between the Silver Medal Court and the Supreme Court. The ideologies are measured using Judicial Common Space Scores, which measure the Justices based on the ideological index (DW-nominate) of their home state Senators at the time of their lower-court appointments. Of course, this procedure could not be replicated for every member of the Silver Medal Court. For Napolitano and Cuomo, I utilized procedures almost identical to that of Judicial Common Spaces. Cuomo’s score was based on the ideological index of Sen. Patrick Moynihan, the democratic Senator for New York at the time, then pushed almost .100 points leftward (as he was the vanguard of liberal New York politics). For Napolitano, I used President Obama’s index, as she worked in his administration for her entire first term. For Miers, my approach was slightly different. By reviewing her record on social issues, one contemporary comparison was undeniable: Lisa Murkowski. So I took Murkowski’s DW-nominate score and multiplied it by 9/10, since Miers is slightly more socially progressive.

Note: -1 is the most liberal score, 1, the most conservative.

When comparing the current Supreme Court to the Silver Medal Court, the biggest change is the lack of a swing Justice. The closest comparison to Anthony Kennedy is Harriet Miers, but she’s markedly more conservative. Notice that no SM Justice occupies the -0.1 to 0.1 space.

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On the liberal wing of the SM Court, there are five— instead of four— Justices, but they are slightly more moderate, meaning there are no Sotomayor or Ginsburg-style liberals. Rather, the most liberal Justices are in the mold of Elena Kagan. The Supreme Court liberals are 1.25 times more liberal than their silver medal counterparts.

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The four conservatives on the SM Court are hard to compare to their ideological colleagues on the Supreme Court. Generally, the SM Court is more conservative, but this is due to the statistical influence of Justice Kennedy. Without Kennedy, the Supreme Court conservatives are 10% more conservative than the second place Jurists.

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The Silver Medal Court is much more liberal– and more divided. In the future, Anna and I will examine how it alters the key decisions of OT 2017. Its first case will be Masterpiece Cakeshop v. Colorado Civil Rights Commission. 

 

Sunday, July 15, 2018

What Kavanaugh’s Law Review Article Actually Says

by Brenna Donohue

Since Judge Brett Kavanaugh was nominated to the Supreme Court, a fantastic amount of debate has erupted over his purported views on the prosecution and indictment of a sitting President. Much of this interest centers on Kavanaugh’s article in the 2009 Minnesota Law Review, titled Separation of Powers During the Forty-Fourth Presidency and Beyond.

Kavanaugh’s writing spans five sections and thirty-three pages, over which he explores a number of potential changes to governmental policies, criticizing independent agencies and lauding the Presidency in the same breath. He provides a rich background for his proposals, integrating viewpoints from the 1700s through the present. And his writing overflows with citations. Some pages are nearly two-thirds full of footnotes; in one instance, he lists 32 government agencies under a single annotation, and in another, he cites nearly seven hours of presidential debate footage.

Of the many administrative improvements proposed in the article, Justice Kavanaugh will only be able to rule on impeachment. In fact, President Trump reportedly favored him because he believed Kavanaugh would not vote to impeach him. But here’s where it gets weird: Kavanaugh doesn’t seem to oppose impeachment at all.

First and foremost, he puts any talk of impeachment aside and offers his opinion on the apparent problem of Presidents becoming embroiled in lawsuits while in office. Civil suits are time-consuming and distracting, he argues, continuing, “[It] would be appropriate for Congress to enact a statute providing that any personal civil suits against presidents, like certain members of the military, be deferred while the president is in office.”

Kavanaugh’s following remarks are somewhat surprising: “The result the Supreme Court reached in Clinton v. Jones–that presidents are not constitutionally entitled to deferral of civil suits–may well have been entirely correct; that is beyond the scope of this inquiry.” Despite hoping that Congress passes a law that would delay civil suits against a President, Kavanaugh hints that such a privilege may not be constitutional.

Let’s pause for a minute. It’s crucial to remember that, even if confirmed as a Justice, Kavanaugh would have no say over most of the issues raised in his law review article, including presidential immunity from civil suits, due to the separation of powers between the judicial and legislative branches. He has been nominated to the Supreme Court — not a seat in Congress. So impeachment is the only relevant area where he can set precedent.

After eight and a half pages of careful reasoning, Kavanaugh brings the first section of his article to a close. “A second possible concern,” he writes, “is that the country needs a check against a bad-behaving or law-breaking President. But the Constitution already provides that check. If the President does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress. Moreover, an impeached and removed President is still subject to criminal prosecution afterwards.”

And with that, Kavanaugh blows away the anti-impeachment viewpoints often ascribed to him. It seems that future-Justice Kavanaugh would not move to excuse President Trump from lawsuits while in office, much less block an impeachment. He clearly accepts Congress’s role in the impeachment process, and he encourages prosecution of the president when his or her term expires. If President Trump truly did nominate Judge Kavanaugh because of his views on impeachment, it was an egregiously poor oversight.

 

Talking Art

Art Lien sketches the Supreme Court for SCOTUSblog. Many rely on his drawings to visualize oral arguments. Mr. Lien also draws themed banners, which depict everything from morning landscapes to the justices in Halloween costumes. He has been covering the courts since 1976. 

When you were in high school, did you already know that you wanted to be an artist?

No, I didn’t. You know, when I was young, I drew a lot. But through high school, I didn’t do much drawing at all. I had no idea what I wanted to do in high school.

When did you figure it out?

I didn’t know what my direction was. I just really kind of felt into it by chance. It’s the one thing that I could always do really well. And after high school, I didn’t what I was going to do. So I ended up just going to art school, because that seemed to be what I did best. I graduated from the Maryland Institute, and when I was done I still didn’t know what I was going to do. [laughs] I majored in painting and print-making. But obviously there were no jobs, so I was doing house-painting and stuff like that.

The governor in Maryland was on trial, and a local station posted a notice at the school looking for somebody who could sketch. Me and a few friends applied, and I sort of fell into it that way.

Were you nervous about being in a situation where you had to sketch really quickly?
Oh yeah, yeah. I’m still nervous to do it [laughs]. I can’t believe I actually did it.

So it went pretty well, then?

No, actually, it didn’t. I went into the bureau, and they had me sketch people in the office there. And I guess I did okay. I had this technique that looked really nice, but one of the problems in the courtroom is that you don’t have a lot of space to spread out. I had these watercolors, and it was on this nonabsorbent paper. When you tilted it, everything would run one way or the other. So the first day I went into court, I couldn’t handle my materials very well. What I produced was so awful that they fired me the first day. So I re-thought it, and instead I started painting on cardboard, which really sucked the paint right up. And they hired me right back.

How would you sketch differently if you had a lot more time and space?

Now I’m so used to drawing quickly that it’s hard for me to spend too much time on anything. I wish I could just sit there and take my time, but for some reason I always feel rushed. And things work out best for me if I don’t fiddle with them too much. I do go for that quick spontaneity– that’s what I like.

What kind of art do you do in your free time?

I don’t do a lot, but every now and then I get back into it. Right now I’m just doing pencil and watercolor, and I’m really falling in love with the watercolor. It’s actually really difficult. Right now, I’m into doing landscapes on watercolor.

How did you get your Supreme Court gig?

Well after the governor’s trial, I wrote letters to each of the networks. There were only three in those days, and CBS responded. At the time, they were using an artist named Howard Brodie, and he’s pretty famous. He was a World War II combat artist, and he did a lot of stuff. Just really an amazing artist. He lived in California, and they were bringing him into DC to cover the Supreme Court. There were no cameras in the Senate at that time either. So he was looking for somebody to back him up. I went to DC, and Howard took me to the Supreme Court and the Senate. He was a really wonderful guy, and he sort of mentored me.

I was in awe of him. And of course, I started to draw just like him. One day we were having dinner, and he said, “My wife told me that she saw a drawing of yours, and she thought it was mine.” I kind of liked that, but on the other hand I was kind of embarrassed at having imitated him. It was kind of like, “Uhh, maybe I’ve gone too far with this.”

What elements of his style were you using?
At that time, Howard used these Prismacolor pencils in a very unique fashion. It was very simple and very direct, so I used the same materials he used. After that comment, I went and switched my media again. I started out with gouache, which is an opaque watercolor. I did a little pen and ink and gouache. When I met Howard, I did the Prismacolors for a while. And then I did the Prismacolors on a darker paper — Howard did it on white paper. Then I went to pastels, which I really hated. They were so messy. And after that, it was Prismacolor and watercolor markers. Finally I’ve come around to just plain old pencil and watercolor now, and I really love it.

Are there any materials you’d like to bring in, but you can’t because of security restrictions?

At the Supreme Court, I’m allowed to bring in a sketch pad and stuff like that. Reporters can bring in a notepad.

At the Boston Marathon Bombing trial — the Tsarnaev trial — they allowed us to bring in electronics and use them in the courtroom during the trial. So I was able to have a hand-held scanner. I could do my drawing, finish it, scan it, and then send it out without ever leaving my seat. That was kind of neat.

In the old days, you had to carry your drawing outside and the cameramen would shoot the drawing. But now I scan them, so I never really have to go out. And the quality is much better.

That’s interesting. I always wondered how your drawings appeared on SCOTUSblog like that.

Usually, what I do, like for the upcoming Paul Manafort trial that’s down in Alexandria, is that there are very tight restrictions there. They don’t allow you to even bring your cellphone into the building. What I’m going to have to do is finish my drawings, and then during lunch or at the end of the day, run out to my car and scan them.

How many arguments or hearings do you attend in a given week?
I figured it out, and I work about 1.3 days a week on average. This summer’s going to be busy, so I’ll probably be working more than usual. There are two Manafort trials and a few other things coming up. My regular gig is the Supreme Court, and the Supreme Court meets two weeks a month, three days a week.

Will you be covering Kavanaugh’s confirmation hearing? I guess there are cameras there, so probably not.

Yeah, I don’t think… I’ll be watching the hearings. I will be at the investiture. That’s when he takes his seat on the bench, and is sworn in at the Supreme Court. It’s really kind of a formality, but I’ll probably sketch that.

You’re used to drawing the same nine justices’ faces, but now you’re going to have a new guy. Will you practice drawing his face ahead of time so you’re ready for next term?

Yes I will. I’ll probably be watching the confirmation hearings and sketching from the television, just to get a feel for him. I’ve done that a few times. Now the other thing is, Kennedy was the most senior justice. And they’re seated in order of seniority. Because Kennedy retired, everyone is switching seats. The justices that were on the right side of the Chief Justice are now on the left side, and vice versa. Kavanaugh will be all the way at the end of the bench, as far away from me as possible. He’ll be the furthest justice from where I am.

I wonder if that’s good because you don’t need to be as detailed, or bad because you won’t get as familiar with his face.

I think it’s bad. I do have a little binocular, it’s actually a monocular — something to zero in on him. But even then, it’s not the best.

Are you allowed to move from the left side of the courtroom?

I am not allowed to move from that area. There are a couple of alcoves, and you can switch from one alcove to another. But you’re still on that left side of the courtroom. I used to be in the alcove closest to the bench. Now I’ve moved back a little because you can actually see the justices better from the alcove I’m in now. The first alcove you can see the lawyer better, but the second one you can see the justices. I’ve finally figured out that the real story is the kind of questions the justices are asking.

How late did you realize this?

Pretty late. [laughs] You know, after twenty years it finally dawned on me. You go in there, and very often the person you haven’t sketched before is the lawyer. You know the justices’ faces pretty well, so you often want to get the seat where you can see the guy who’s different. See, if questions are consistently coming from the far end of the bench, I may never see the face of the lawyer arguing. I see the back of his head, and that’s kind of risky.

Does that mean you sketch as if you can see the lawyer’s face, and maybe you make up their facial expressions?

No, no. I draw it like I see it. There’s always some point you get where they turn, maybe to look at the other justices. There’s always somebody from the other side of the bench who will ask a question.

Breyer, who asks the longest, most convoluted hypotheticals, takes a long time. And it’s great because the lawyer’s just looking at him and not moving, and it gives you an opportunity to really get a good sketch. These past few years, Breyer’s been on the wrong side of the bench — where the lawyer’s looking away from me. Now he’ll be close, so it’ll be an improvement.

The other thing is that Justice Sotomayor is usually the first person to jump in there with a question. It’s important to get a look early on, and the earlier the better. In the last year, she’s been on the far end of the bench, so that’s made it difficult. But this coming term, she’ll be on my side. That will help.

You enjoy drawing Justices Sotomayor and Breyer because they’re so expressive. Are there any justices you have a particularly hard time drawing?

Um, yeah. I’m having a really hard time with Kagan. And the Chief Justice — I have a very hard time with the Chief Justice. There’s just nothing that really stands out. But you could have said the same thing about Kennedy, and I could always draw him pretty well. So I don’t know why it is.

I think with Kagan… You know John Oliver, the comedian? On his show [laughs], he used my sketch. I forget what he said about it, but it was not a good sketch. He compared my sketch of Kagan to Jonah Hill. You do take these things personally. [laughs] He said it looked like Jonah Hill in drag.

Has anyone ever contacted you because they didn’t like the way you drew them?

No. Justice Brennan once told me that I always made him look like a leprechaun. Which — he looked like a leprechaun! [laughs] But that’s all.

How often do you interact with the justices outside of the courtroom?
Almost never. I don’t have much contact with them.

How did you meet Justice Brennan, then?

Well, years ago there was a show at the Supreme Court of the sketch artists’ work. He came to the opening along with Sandra Day O’Connor. I think they were the only two. Things were a lot more relaxed when I first started out. Some of the justices would actually have breakfast in the public dining room, which you don’t see anymore.

What do you think about the Supreme Court cafeteria, and which junior justice ran it best?

[laughs] Well, Kagan did a great job because she got the fro-yo machine put in. That was a big thing. Otherwise, it’s not too great right now. I definitely give Kagan kudos.

What time you do usually arrive at the courtroom?

I get there very early. I’m usually there by 8:00 at the latest, usually 7:30. I do a banner for SCOTUSblog, so very often I will just do that. I don’t really know what I’m going to do until I get there. Sometimes I prepare these banners ahead of time, but very often not. I just sketch them during those two hours; then I have to upload them and all that.

How do you get the ideas for your banners?

It just comes to me. The first one I ever did, I thought of it walking to Court in the morning. It was an Enron case called Yates — after Enron, they passed a law that it was a crime to destroy documents. And they used that law after a fisherman tried to get rid of his illegal catch before the Coast Guard came. So I thought, why don’t I put all the justices in fishermen outfits holding rods and fish. That was the beginning of it. It was nice, it was fun, and I can’t believe I did it that quickly.

Another one that I really liked was a baseball-themed banner. So I had to figure out what team I’d put them on. Breyer, I didn’t really know what to do — I put him in a cricket uniform. And Thomas was on the Dallas Cowboys football team.

I’ve only been doing the banners very recently, and I only started working for SCOTUSblog recently. SCOTUSblog didn’t exist until recently. I love working for them. For years, when I was working for NBC, the networks only covered two or three big arguments a year. And a lot of times you’re doing stuff that never gets on the air. But SCOTUSblog covers basically everything, they use everything I do. It’s really fun.

And sometimes they will suggest ideas for the banners. When the Capitals won the Stanley Cup, I drew all the justices in Caps uniforms. Tom Goldstein suggested that. I got a lot of orders for that one. The original actually went to Malcolm Stewart, who’s a deputy Solicitor General. He’s a huge hockey fan, and he’s been at the Court for years.

Which of your banners and sketches has sold the most copies?
Gay marriage, as far as sketches, was the busiest. Interesting thing: I sell a lot of prints, and I got this order for the decision day drawing. The person who made the order said — I sort of lost touch with my father’s family years ago — she said, I may be a cousin of yours. And it turns out she is my only surviving first cousin on my father’s side of the family. She and her wife lived in Minneapolis, and I’ve been in touch with her ever since. Kind of neat.

How much of an oral argument can you observe while sketching?

Not much. It helps that I read about it before the argument. I need to know a little bit of what it’s about. But I have a right-brain left-brain thing, and I have a hard time listening and processing what I’m hearing and drawing at the same time.

Are you afraid that you’ll become too engrossed in the argument and forget to sketch?
Well, I don’t give myself the chance to become engrossed in the argument. I’m just so concentrated on what I’m seeing. The argument is sort of background. I think some other artists are much better at that than I am — as far as really listening to what’s going on.

Sketch artists are supposed to capture the argument’s defining moment. What happens if you start drawing something — say, a lawyer makes a good point — and then Justice Scalia tells a funny joke. Do you scrap the old sketch and start over?

I have a couple sketches going at the same time. I leave my options open. But the great thing about drawing in pencil is that you can erase it. For example, very often I’ll have the lawyer up there, but I’m not going to draw all nine justices. So I have the lawyer and two or three justices. Or I might have the wrong one, so I can change that in the middle of the drawing by erasing, or I can redraw the bench.

What if the argument’s big moment happens really quickly? It lasts for a few seconds, and then it’s over. How much do you have to draw from memory?

Well, I think all of the drawing is really from memory. Everything that you’re drawing is something that’s already happened. An important thing that’s taken me years to learn is that sometimes it’s best not to draw, and just to watch. Because the minute you look down at your paper, you’re not really seeing what’s in front of you anymore. Especially when a verdict comes down or something like that. It’s hard not to draw — you feel like you’re not doing what you’re supposed to be doing. But it’s probably better to try and remember what you’re seeing and then draw.

What’s a common mistake that a rookie sketch artist might make?

They may come in with the wrong materials, or too big a pad. I think the materials — that’s one of the first hurdles that you need to handle well. The next thing is, I think you can spend too much time on trying to get the perfect likeness and miss out on the action. A lot of people will draw the heads, and then not get the body language. That’s really important.

How many other sketch artists are in the Court with you?

These days, it’s usually just two of us. Sometimes three. In DC, it’s me and Bill Hennessey, and then occasionally Dana Verkouteren from the AP. But when I started, every local station used to have their artist on contract. There would be six artists.

What exactly is a “pool artist,” and why is it a stressful position?

You’re drawing for everybody, and I guess you have to cover all the angles. It’s easier when I know the reporter that I’m working with, and I have a sense of what he’s looking for. The other thing is — it’s not so hard these days — getting your stuff out to everybody can be difficult. Especially when you had to go out, and different cameramen had to shoot your drawings separately. Now, I just scan it once and add everyone to an email list.

When is your normal deadline after a SCOTUS argument?

It’s like an hour at most, really.

Oh my gosh.

Yeah. Hopefully I have stuff almost done by the time I get out.

I was thinking that there may be some really time-consuming sketches that you start in the courtroom, but maybe color in later. I guess that doesn’t give you much time.

Well I color everything afterwards, but it’s very quick. I try to have my drawing done by the time I’m leaving the courtroom, and the watercolor goes on very quickly. And then I scan them.

I usually don’t post to my blog until the next day or a couple days later, because I’m not breaking news. But at the Court, there was one day during argument that Thomas spoke. He doesn’t usually speak from the bench unless he’s announcing an opinion. It wasn’t really a question — he was joking about lawyers from Harvard versus lawyers from Yale. He just made this comment, but it was news. I sketched that really quickly, ran down, and scanned it. And I think I actually beat the wires. I had it on Twitter before the wires carried it, because the wire reporter was trying to figure out exactly what he said.

In one of your old blog posts, you said that wide shots are very time-consuming. Will you ever finish those after the argument because they take so long?

Oh, yeah. What I do with the wide shot — what I can, I’ll do before. I go up to the courtroom at 9:30, and usually there’s a whole section of lawyers being admitted to the bar. That’s kind of a foreground I can start drawing. I can draw the columns and stuff. For a really big case, I’ll do a very wide, wide shot of the courtroom with the bench and all that. So I may start that drawing, and I’ll have all the justices drawn in. Now, if they change, I can erase and adjust that pretty quickly. And then at the last moment I add in the color. So I can finish up those wide shots very quickly. Now, I might not have everything finished in an hour, but I’ll have some things — the sketch of a lawyer, a couple justices — and I can upload those first. And of course, I keep working throughout the day, so I’m still producing more drawings from that argument. Especially if we have a nightly news story; then my deadline isn’t until 4:00 in the afternoon.

You mentioned that you draw extra wide shots for blockbuster cases. Are there any other special things you do for a big case?

Well, if the people involved with the case are seated in the courtroom, I try to familiarize myself with what they look like so I can spot them. But other than that, arguments are pretty much all the same as far as the setting.

Does the lighting in the courtroom change significantly from morning to afternoon, or spring to fall?
It does. When I first started, we used to have arguments regularly in the afternoon. The light was very different. Nowadays, it’s rare to have an afternoon argument, so we don’t have that problem. Towards the afternoon, the light comes in the windows from the other side, and it makes it very hard to see the lawyer because the light is behind him. All you see is the silhouette. And the courtroom itself is not lit very brightly.

Other interviews conducted by Anna Salvatore: former Solicitor General Neal Katyal, Lawfare editor-in-chief Benjamin Wittes, New York Times Supreme Court correspondent Adam Liptak, First Mondays co-host Ian Samuel, Fix the Court Director Gabe Roth, and litigant extraordinaire Fane Lozman. 

Friday, July 6, 2018

by Joe Hanlon

The Supreme Court decided National Institute For Life Advocates v. Becerra last week. One of the most watched cases this year, the Court saved its opinion for the last day of the term. It held that California couldn’t force crisis pregnancy centers to inform women about abortions, as this violates the First Amendment. Wrote Justice Kennedy, “Governments must not be allowed to force persons to express a message contrary to their deepest convictions.” The Court’s decision pleased conservative free speech advocates and pro-life activists.

The case arose when California’s state legislature passed the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT), which mandated that privately-run crisis pregnancy centers display posters about obtaining abortions. Two specific notices were required: one for licensed centers and one for unlicensed centers. Licensed centers had to notify customers that California provided free and low cost services for pregnant women; unlicensed centers simply had to disclose that they were unlicensed. The petitioners claimed that these requirements violated their First Amendment right to freedom of speech. Denied a preliminary injunction at the District Court level, they filed an appeal to the Ninth Circuit; the appeals court affirmed the District Court’s decision and denied the injunction. Then they appealed to the Supreme Court.

In a 5-4 opinion penned by Justice Thomas and joined by the conservative bloc, the Court held that FACT “targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech.” The Court says that both notices violate the First Amendment, and it notes that petitioners will likely succeed on the merits in future proceedings. This means that the case will be sent back to lower courts, or “remanded,” for reconsideration. The lower courts then will reevaluate their decision based on the Supreme Court’s new precedent.

Dissenting, Justice Breyer asserted that both requirements are probably constitutional. He also noted that, since this case is centered around abortion, reproductive health laws should have informed the Court’s decision — not just the First Amendment. He was joined by Justices Ginsburg, Sotomayor, and Kagan.

The fact that this case involves abortion makes it instantly controversial. But it’s also quite important, as it creates new questions about freedom of speech rights. With this decision, new challenges to government mandated speech will likely arise. And this paves the way for more far-reaching rulings. After all, the Court will probably address free speech and abortion next term with a new conservative Justice. In the short term, we can expect reproductive health and free speech to be hot-button issues in the nominee’s upcoming Senate confirmation hearing.

 

Thursday, July 5, 2018

I’m excited to announce that Jackson Foster is our newest High School SCOTUS contributor. Jackson recently finished his senior year of high school in Fort Lauderdale, Florida. He loves the Philadelphia Phillies, Tottenham Hotspur F.C., and Les Miserables, and he never misses Jeopardy. His ideal theory of jurisprudence balances pragmatism with compassion. Now, without further ado, here is Jackson’s first article.

It’s been a difficult few years for our our country. Without commenting on his character or his policy decisions, President Trump is a divisive figure. Compounded with fervent partisanship, this has damaged dialogue and compelled us further apart. It has infected our legislative bodies, neighborhoods, and dinner tables. What jars me most, though, is when people equate their political opponents’ ideas with their opponents’ personhood.

The Court, that hallowed apolitical body (and I say that both in jest and with the utmost reverence), has suffered greatly from the convergence of politics and personhood.

Justice Antonin Scalia famously said, “I attack ideas, not people.” He may have executed this imperfectly, but it’s still a novel principle today.

This term, the Court has ruled on issues ranging from religious discrimination to union membership. These issues are deeply important to people, often tied to their identity and intimate conceptions of self. Many rulings this term have frustrated me— to others, they may have caused more permanent harm. And this pain should be articulated somehow. However, Twitter encourages commentary that is less than nuanced. I searched “F*ck Supreme Court,” and it yielded thousands of results (many of them utilizing the caps lock).

I reflected on this while watching the fireworks on July 4th. For me, it’s irresistible to experience a great wave of patriotism — and a renewed love for our democratic institutions — while gawking at the exploding magnesium in the sky.

With this in mind, I feel obliged to reevaluate my fellow citizens’ feelings about the Court.

Justice Alito, despite his controversial opinion in Janus, loves this country. Like us, he is a human with “impediments [of which there are] too many to mention.” He works tirelessly to interpret the law in a way that is true to the Constitution and the lasting judicial principles of this country.

Justice Sotomayor, who wrote a rather critical dissent in Trump v. Hawaii, loves this country as well. It’s absurd to think that her constitutional interpretation calls that into question.

Nine lawyers are tasked with providing substantive and measured analysis on issues dear to their fellow citizens’ hearts. And above that is their task to resolve the arguments relating to our Constitution. People will always be upset. 

But we can mitigate this if we save our vitriol only for ideals and interpretations. Justice Sotomayor, when asked about how the Court maintained its institutional equilibrium, said, “We don’t disagree on the fundamental value of people. You can respect someone with which you disagree when you begin with that principle.”

Let’s take that to heart this Independence Day.