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Nine on nine
Conversations on justice, power, and the U.S. Supreme Court
Before an audience of several hundred scholars, journalists, lawyers, and students on October 21 in Robsham Theater, some of the country’s best and abiding observers of the “least dangerous branch,” as Alexander Hamilton referred to the U.S. Supreme Court, met to consider the court’s current state and recent course. Guided by moderators Jeffrey Rosen (professor of law at George Washington University and legal affairs editor of the New Republic), Lincoln Caplan (former editor of Legal Affairs), and Randall Kennedy (Michael R. Kline Professor of Law at Harvard Law School), the exchanges were lively, collegial, and occasionally disputatious. This was the third in a series of annual public discussions cosponsored by Boston College and the Massachusetts Foundation for the Humanities; previous topics were “Presidential Reputations,” in 2004, and “The Legacy of the Voting Rights Act of 1965,” in 2005. The event may be viewed in full at www.bc.edu/frontrow. A sampler follows.
What makes a justice a good justice
What makes a decision a good decision
The Supreme Court, jurisprudence, and presidential powers
What makes a justice a good justice
“The culture has extolled expertise”
Our notions of what makes a great justice and who should be chosen for the Supreme Court have changed throughout history. In any era, a good mind and legal record have been important, but only in the last 30 or 40 years have the circuit courts—especially the D.C. Circuit Court—become the breeding ground. If you look at the great justices of the 20th century, there are many who did not have experience on the circuit courts—including Hugo Black, Earl Warren, Harlan Stone, and Oliver Wendell Holmes.
The résumés of candidates for the Supreme Court have tended also in the past 40 years to vaunt extensive experience on the faculties of the very top law schools. I’m not saying that isn’t reasonable, but it is different from how it was in other times. Since the Progressive Era, really, the culture has extolled expertise in all the professional realms—medicine, history, academia, and so on.
There are different kinds of justices. Do you highly rate a judge because his lone dissent is brilliant, or because he or she writes an opinion that’s a little less brilliant but somehow manages to get four others to agree with it? Both are valid criteria. Justice William Brennan’s particular talent was for cobbling together majority positions through personal warmth and cajoling. Antonin Scalia is by many accounts quite cordial and civil to his fellow justices in person, but his temperament as expressed in his written opinions probably cost him the chief justice post.
The public image of justices is important. If a justice or a judge is giving political speeches and participating in fundraisers, a point can be reached at which the public will cease to have confidence in his or her impartiality, open-mindedness, and intellectual humility.
And yet, we’re in an age of populist style, where presidents half the time don’t wear suits and ties but sweaters, and the idea is to seem as much like an ordinary citizen as possible. There is a way in which a justice’s reputation may be harmed if he or she is seen as too much the expert, too much of the ivory tower.
David Greenberg is a professor of history and of journalism and media studies at Rutgers University, and the author of Nixon’s Shadow: The History of an Image (2003).
“How cloistered the current justices are”
Judge Richard A. Posner
The Supreme Court is a political court, and what one wants on such a court is primarily people who have worldly experience and diverse perspectives. It’s remarkable how cloistered the current justices are. They have very limited experience when you compare them to someone like Robert Jackson, a Supreme Court justice in the 1940s and early 1950s, a confidante of President Roosevelt who’d been solicitor general of the United States and U.S. attorney general, chief prosecutor at Nuremberg as well as a practicing lawyer. He’d never gone to law school. He was very smart but also very experienced, and it shows in his opinions.
I’ll give an example of what I regard as an extremely dumb Supreme Court decision: Clinton v. Jones. That’s the case in 1997 in which President Clinton was asking for temporary immunity from the sexual harassment suit brought by Paula Jones until his term of office was over. The delay would have been two years. The Supreme Court turned him down, unanimously. Speaking of cloistered, they didn’t realize how explosive a sex case against a president would be, that all sorts of terrible things could happen. It was after Clinton was turned down for immunity that he was deposed by Paula Jones’s lawyers and lied, and impeachment ensued. The country didn’t need this.
One of the problems with conventional legal reasoning, which I regard as largely nonsense, is that it convinces some judges that they have the keys to knowledge of the universe. They come down on one side of a case and they know they’re right because they’ve used some rigorous method that resembles logic or scientific experimentation. You’d like to have justices who are practical and can see train wrecks coming, who have a kind of intellectual suppleness that enables them to deal with a fact-specific case, to distinguish between a sex case against a President and a breach of contract.
Judge Richard A. Posner sits on the U.S. Court of Appeals for the Seventh Circuit and served as that court’s chief judge from 1993 to 2000. He clerked for Justice William Brennan, Jr., has taught at the University of Chicago Law School since 1969, and is the author of Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (2005).
“Cases, not abstract legal issues”
Renée M. Landers JD’85
Thinking about the place of doing justice in a justice’s job, two Supreme Court opinions come to mind. A recent example is from a case in 2006, Burlington Northern and Santa Fe Railway v. White, about whether Title VII of the Civil Rights Act prohibits employers from retaliating against workers who bring discrimination claims. In the opinion for the court, which ruled unanimously, Justice Stephen Breyer expressed concern that if an employee could be penalized in the short term by termination or suspension without pay—even if the employee was ultimately paid—workers might be deterred from bringing a discrimination claim. It was a comment about the justice of the case, with Breyer putting himself in the place of the worker trying to stand up for his or her rights.
The other opinion that comes to mind is a dissent that Thurgood Marshall wrote in The United States v. Kras, in 1973. This case, decided 5 to 4, was about whether people who were indigent and could demonstrate that they were unable to pay the fees should be entitled to a waiver of bankruptcy court filing fees. The majority held no—that there is not a constitutional right to relief from one’s debts in bankruptcy. Justice Marshall wrote that the members of the court might disagree about what the Constitution requires, but they should at least understand the impact of their decision on real people’s lives.
Judges are not law professors, and courts are deciding cases, not abstract legal issues. Doing justice is an important consideration for judges.
Renée M. Landers JD’85 is an associate professor of law at Suffolk University Law School and served on the Massachusetts Commission on Judicial Conduct.
What makes a decision a good decision
“A case that flunked several tests”
Akhil Reed Amar
From the founding to 1850, the U.S. Supreme Court invalidated one act of Congress. We all know the case—Marbury v. Madison, in 1803. At issue was one part of one sentence of a long statute dealing with the jurisdiction of courts. William Rehnquist served as chief justice from 1986 to 2005; in the Rehnquist Court’s middle years, the Supreme Court was invalidating acts of Congress, on average, four times a year. Justice Antonin Scalia says Congress is passing a lot more unconstitutional laws today. Well, maybe, although an 18th-century Congress passed the Sedition Act making it a crime to criticize federal officials, and the Supreme Court didn’t strike that down.
In evaluating court decisions, the distinction of “judicial restraint” is generally held to be a good. But there are a number of meanings the term can have, pulling in different directions. It can refer to restraint vis-à-vis the will of the legislature, by which measure we have lately had an unrestrained court. It can mean restraint vis-à-vis the text and original understanding of the Constitution. Sometimes restraint in one direction rules out restraint in the other.
Another vision of judicial restraint centers on the cases previously decided by the court. When the court took up Brown v. Board of Education in the early 1950s, a precedent, Plessy v. Ferguson (1896), was still on the books. The Constitution mandated equality; Plessy winked at the facts and said that separate could be equal. The justices couldn’t do justice to both.
A case that flunked several tests of judicial restraint was Bush v. Gore, in 2000. The Constitution, I think, envisioned that the determination of an election so disputed would be given to Congress and the states. The court’s action was unprecedented, essentially saying to the lower courts, we’re not going to follow this decision in the future and don’t try this at home. Judge Posner has written that perhaps the opinion was pragmatically justified, because Florida’s courts and legislature, the U.S. House and Senate, and the country were divided. I might agree if the court’s decision had been unanimous rather than divided 5 to 4 along partisan lines. The justices flunked the test of partisan restraint, too.
Akhil Reed is the Southmayd Professor of Law at Yale Law School and the author of America’s Constitution: A Biography (2005).
“Where I can see the justices struggling”
For a lower court judge, splintered Supreme Court decisions are the worst. And the worst of the worst are cases decided by plurality opinions where we cannot say with certainty that the court actually resolved an issue. The trial court judge is left to decide, do I follow the four votes, or maybe three votes, of the controlling plurality opinion? Do I take into consideration that the composition of the court has changed since the decision was rendered?
But is a unanimous decision—or the narrowest decision—necessarily preferable? For Brown v. Board of Education, it may have been. There certainly was a conscious effort by the court in that politically controversial case, in an increasingly polarized society, to have a unanimous decision. In the abstract, however, minimalism and unanimity are not virtues in and of themselves. When we have multiple opinions we see the process; we see the different justices working with and against each other. A vigorous dissent forces the majority to confront the points it raises. And if the majority doesn’t confront them, that says something, as well. As a law professor, I like the decisions where I can see the justices struggling.
Since Brown, or perhaps slightly before, courts have been popularly perceived as part of the political process, and the focus has been on judicial outcomes more than judicial process. Legislators keep the courts in mind from the start as they draft legislation. Opponents of the legislation begin thinking about where it will end up in the courts and how they will frame their case. As an attorney, Thurgood Marshall argued a series of cases in front of the Supreme Court prior to Brown, to prep the nation for the greater revolution that Brown brought. We see a similar strategy now within the gay rights movement as Lawrence v. Texas (2003)—in which the Supreme Court cited the 14th Amendment in overturning by 6 to 3 a state ban on certain same-sex sexual activity—was part of an effort to bring the issue to the Supreme Court rather than waiting to see what would happen in the more traditional political arena.
Mary-Rose Papandrea is an assistant professor of law at Boston College Law School. She clerked for Justice David Souter.
“We will always have movement”
The year that I clerked for Justice Sandra Day O’Connor, 1989–90, started with three cases on the docket that could have raised the question of whether Roe v. Wade (1973) was good law. They all settled. In that era, there were bags of mail outside Justice O’Connor’s office, thousands of letters telling her how to vote in support of Roe v. Wade or berating her to oppose it. Obviously, part of the court’s supposed politicization is coming from the public’s view of what the court ought to do.
Should we even care if a particular decision is the perfect outcome? In the United States, we work in incremental additions and judgments of the law. When a case is decided, the issue doesn’t disappear. It comes back up, and if the first decision was unworkable, the decision may well be modified. Maybe it will be modified in a worse decision. But we will always have movement, because this is a common law, case-by-case judicial system.
The case of Miranda v. Arizona, in 1966, which required police to apprise individuals in custody of their rights, is instructive. At first, conservatives were extremely unhappy, saying, how can you require that of the police? Yet, over time, Mirandizing became absorbed into the culture. At this point, your six-year-old can give you your rights. Decades later, Chief Justice Rehnquist had an opportunity to do what he said he’d wanted to do for years, which was to overturn Miranda because it represents an inappropriate exercise of judicial power with respect to local enforcement. And what did he do when given that opportunity? He wrote an opinion in which he said, you know what, Miranda is in place, it’s not so bad, it’s not hurting anybody, we all know what it is, so it stays.
In the larger system of common law, the courts reach a decision, then test it, and test it again. Even if Miranda seemed wrong at the time of the decision, the fact that it was so workable, and absorbed by the culture, shows that experience with a legal rule is crucial in fully assessing its positive and negative potential.
Marci Hamilton holds the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. She clerked for Justice Sandra Day O’Connor, and is the author of God vs. the Gavel: Religion and the Rule of Law (2005).
The Supreme Court, jurisprudence, and presidential powers
“A democracy-forcing rule”
Jack Landman Goldsmith
The three most important cases that the Supreme Court has decided with respect to the war on terrorism are:
• Hamdi v. Rumsfeld (2004), which held that the president had the power, pursuant to Congressional authorization, to detain an American citizen, Yaser Hamdi, allegedly a member of the Taliban captured on the battlefield in Afghanistan, until the end of the Afghan conflict, but also that Hamdi had certain minimal due process rights in the determination of whether, in fact, he was an enemy combatant as asserted;
• Rasul v. Bush (2004), which held that the federal courts’ habeas corpus jurisdiction extended to the detainees on Guantanamo Bay;
• Hamdan v. Rumsfeld (2006), in which the court invalidated the Bush administration’s scheme for trying Guanta-namo detainees employing military commissions, on the grounds that the president had not abided by the restrictions that Congress had put on the use of such commissions, including compliance with the laws of war.
In all three of these cases, the President ostensibly lost. But the court ruled on statutory grounds in a way that left the door open for him to go back to Congress for the authorization to do what he wanted to do. And so the Military Commissions Act, passed by Congress and signed on October 17, 2006, basically authorized the president to do most of what he had been doing in the absence of express Congressional authorization. Similarly in Hamdi, the habeas corpus case, the court ruled only on the statutory ground, leaving it to Congress to come back and say something different. (In fact, so minimal were the protections laid out by the court for Yaser Hamdi that with the passage of time the case doesn’t look like much of a rebuke to the administration, after all.) None of these decisions questioned the president’s power to detain enemy combatants during the conflict. None of them questioned the ultimate power to try them by military commission.
What the court did, especially in Rasul and Hamdan, was say to the president, you can’t do this on your own. It imposed what some people have called a democracy-forcing rule. And to the extent that the court has successfully forced Congress into the fray—in a way that the president didn’t and Congress itself didn’t—I think it has done a good job.
Jack Landman Goldsmith is the Henry L. Shattuck Professor at Harvard Law School. He clerked for Justice Anthony Kennedy, was an assistant attorney general under George W. Bush, and is coauthor, with Tim Wu, of Who Controls the Internet?: Illusions of a Borderless World (2006).
“The rock-bottom moment”
There are a lot of nuanced places between a peacetime governmental system of checks and balances and the plenary power of the president in war. The position that the current administration takes is that the president answers to no one. At oral argument in Hamdi, Rasul, and Hamdan, the justices, particularly the swing justices Sandra Day O’Connor and Anthony Kennedy, struggled with the solicitor general as if to say, give us something here, move an inch away from this notion that absolutely no check exists on the president in wartime. But invariably there was the sense from the solicitor general that he would not give them that.
Probably the most important line penned in the war on terrorism has been Justice O’Connor’s in the Hamdi case: “A state of war is not a blank check for the president.” It’s the line we’re going to quote to our great-grandchildren some day. The court didn’t go far beyond that, however. It didn’t spell out exactly what due process meant in the Guantanamo cases, for instance. The problem was that Congress wasn’t doing its job, and what the court said was, catch up to the parade, Congress, and make some law. It was humble and minimalist and democracy-inspiring.
To me, the rock-bottom moment as a Constitutional matter came later, in fall 2006, when Senator Arlen Specter (R-Pa.) said he would not vote for a proposed compromise detainee treatment bill because it was unconstitutional and because it suspended rights that go back to the Magna Carta, and then voted for it, along with a lot of others in Congress who had staked out similar positions. The result was the Military Commissions Act, and of it Specter said, the Supreme Court will “clean it up.”
Dahlia Lithwick is a senior editor and legal correspondent for Slate magazine. She is coauthor, with Brandt Goldstein, of Me v. Everybody: Absurd Contracts for an Absurd World (2003).
“Because this war may never end”
Let’s remember what happened in Hamdi and its then companion case, Rumsfeld v. Padilla, in 2004. In Padilla, the president was asserting the power to seize an American citizen in America, label that person an enemy combatant without any process whatever, detain that person for the rest of his life without a trial and without access to counsel, in a Navy brig under conditions that latterly, Padilla has asserted, were brutal, involving threats and beatings. That is one of the most extreme situations encountered in this country in my lifetime. And I would say that it mattered that the Supreme Court, almost in passing, said in Hamdi, of course you’re going to give him counsel. In a couple of sentences near the end of her opinion, Justice Sandra Day O’Connor wrote, well, of course there’ll be counsel.
Hamdi, Padilla, Rasul, and Hamdan all come framed in a reality that’s quite different from that of any previous war we’ve fought. It’s different from the situation in World War II that produced Ex Parte Quirin, the case of the Nazi saboteurs who landed on Long Island in a submarine and whose trial by a military commission was upheld by the Supreme Court in 1942. It’s different from all of our other wars because this war may never end. This is a war against an inchoate bunch of people, terrorists, defined by our government. It will stop when some president says there’s no terror anymore, and I’m not sure I’m going to live to that day.
In a war forever, the rules, legal theories, legislation, and processes for dealing with the law are more important than ever.
Anthony Lewis was for 32 years a columnist for the New York Times. He earned a Pulitzer Prize for his Supreme Court reporting for that paper in 1963, and his books include Gideon’s Trumpet (1964) and Make No Law: The Sullivan Case and the First Amendment (1992).
Read more by Mary-Rose Papandrea