Less than the Least

The Supreme Court’s recent lethal injection decision, Baze v. Rees, reminds me of a puzzle. Supreme Court Justices, and appellate judges generally I think, often feel bound by previous case holdings and by the core reasoning that supports those holdings. But judges rarely defer to prior decisions about legal method. If, say, case 1 holds that a particular constitutional clause is to be interpreted based on its original understanding, judges who believe in evolving constitutional meanings feel perfectly free to ignore originalist arguments in case 2, arising under the same clause. All sides in contemporary legal debates do this: Justices Scalia and Thomas apply their preferred interpretive methods whether or not the most recent majority opinions in the area do so.

Why is that? If the point of precedent is to make the law predictable, then it would seem that decisions about legal method should receive more deference than simple case holdings, not less. And in the past, I think they did receive a good deal of deference: this willingness to reargue all methodological issues in every case strikes me as a phenomenon of the last generation or two at most, not the norm in American legal history. If I’m right about that—I may not be: I’d defer to the wisdom of any good legal historians out there—this strikes me as a change for the worse, and one that has large consequences for the way constitutional law develops.

As I was reading the Supreme Court’s new Guantanamo Bay decision this weekend, I emailed my colleague Stephanos Bibas, a fine scholar and Supreme Court watcher, to see what he thought. After explaining why he thinks “the dissenters have a reasonably strong case” given among other things the historical limitations on the writ of habeas corpus, he said:

“the majority seems influenced by the long and open-ended nature of this war on terror. I can't help but think that the Executive's bungling of Guantanamo, with the Yoo memo and the refusal to budge an inch in conferring due process protections, has swayed at least Justice Kennedy to distrust unreviewable executive discretion here. It seems to confirm Jack Goldsmith's thesis in The Terror Presidency: by constantly pushing its power to the utmost and refusing to show any respect to good-faith concerns, the Bush II administration has provoked confrontation after confrontation with the Supreme Court and lost, ultimately weakening executive authority.”

If Stephanos is correct– and I personally think he is– the Supreme Court’s ruling that the enemy combatants at Guantanamo are entitled to full habeas corpus rights seems to me both understandable and wrong. It may also be a significant opportunity for John McCain.

If Obama wants to appoint a Scalia for the left, he should choose Pam Karlan, a longtime colleague of mine at Virginia who now teaches at Stanford. Pam is (1) brilliant, (2) broadly knowledgeable — Cass Sunstein aside, I can’t think of anyone who knows so much about so many different legal fields — and (3) a spectacularly gifted writer. The last point matters enormously. Robert Jackson served only thirteen years on the Supreme Court, but his opinions remain influential today because of his talent with language. Many judges and justices leave their mark on the law because of their votes. Only a few have influence that lasts beyond their lifespan, and the common thread in those judicial careers is an uncommon ability to capture a complicated argument in a memorable phrase. Henry Friendly, Learned Hand, Louis Brandeis, Oliver Wendell Holmes, John Marshall — all had that talent, and many of those phrases survive and shape legal doctrine today. Intellectual horsepower helps, but horsepower alone isn’t enough to produce a lasting impact on the law. David Souter is a perfect example: he may be among the smartest Justices to serve on the Court, but he seems incapable of producing clear, tight opinions. A couple decades hence, few will cite his work.

My post about Pam Karlan as a potential Supreme Court nominee (see below) got more play than I expected. (I’m always surprised when someone reads something I write. Usually, I think: this can’t be a good use of readers’ time . . .) Which is all to the good: I think Pam would be marvelous in that job. But Pam isn’t the only first-rate candidate under discussion. My former boss Elena Kagan would likewise be terrific. A big part of the reason why goes to an idea that has attracted a lot of attention of late: empathy. 

Most of the talk about empathy and judging is silly. Roughly speaking, empathy means a combination of passion and understanding. Does anyone want Justices who don’t understand how some important piece of the world works? Should we fill the Supreme Court with Justices who are less than passionate about doing justice? These questions answer themselves. In any event, Karlan and Kagan share an important virtue in this regard: both have professional experiences that are unusual among candidates for this job—and both have exhibited the combination of understanding, detachment, and passion that the best lawyers bring to the table. Karlan may be the best voting rights litigator in the country; she knows the world of Southern black politics like few others. (She also knows Bill James. How cool is that?) Valuable as that is, this is more valuable still: Karlan genuinely loves her clients, and she is zealous about the business of protecting and enforcing their rights. Good for her. Kagan knows how a White House works from her time in the White House Counsel’s office under Bill Clinton, useful information for one who sits in judgment of presidents’ actions. More important still, Kagan has run the equivalent of a medium-sized business—and she ran it with a combination of cool-headed detachment and genuine devotion, for the institution she ran and for the people who work here. Good for her too. I’d still pick Pam first, but it’s a close call.

Plenty of people have noted that recent Supreme Court picks have all come from the federal bench. The usual response is to argue that we should look for non-judges to appoint to the Supreme Court. There is some merit to that position, but I’d also look more to state-court judges.

With the exception of Supreme Court speculation, the biggest news in my little neighborhood these days is the announcement that Judge Michael McConnell will step down to join the faculty of Stanford Law School. As many readers will know, McConnell was the nation’s leading religion clause scholar and a law professor at the University of Chicago and then the University of Utah before being appointed to the federal court of appeals. No doubt there are many reasons for his decision to give up his judicial robes—the desire to return to the scholarly fold and to litigate occasional, high profile cases, perhaps, or weariness with the routines of appellate judging. But surely one small factor is that any prospects for a nomination to the Supreme Court are now very dim. Judge McConnell is quite young—he’s only 53 or 54—but it is highly likely that President Obama will be in office for the next eight years. By the time there’s a realistic chance of a Republican president, he’ll be in his 60s. Given the clear emphasis these days on appointing young justices, the odds of a future nomination are small and distant.

This is a trivial comment, but I note that all the early reports on Sotomayor’s appointment refer to her as “Hispanic.” This puzzles me. Brazilians aren’t Hispanic—they speak Portuguese—and Spaniards are. Why should Spanish ancestry matter more than, say, Dutch or Swedish ancestry? (Full disclosure: I’m descended from Swedes. We’ve already had our Supreme Court Justice—Earl Warren, whom his political ally Tom Dewey once called “that big dumb Swede.”) And why should Brazilians count for less than, say, Argentines or Bolivians? This is the great advantage of the label Latino: it encompasses all whose ancestry is Central or South American, and it excludes Europeans. Why a politically correct culture continues to use the un-politically correct terminology is beyond me.