Tuesday, December 9, 2014

The Rule of Nine in a Supreme Year

No doubt it seemed a clever idea.  Focus on a single term of the Supreme Court to illuminate how it operates, what its individual and collective constitutional understanding currently indicates about some of the more controversial issues of the day, and how each of the nine justices interprets and applies the Constitution.

Or perhaps the seemingly clever idea was to focus on each of the nine justices interprets and applies the Constitution in order to illuminate what their individual an collective views indicate about some of the more important issues of the day and how the Court operates.

Or perhaps the seemingly clever idea was to focus on one opinion by each of the nine justices, some majority opinions, some dissents to illuminate . . . .

You begin, perhaps, to understand both the virtues and the problems of American Justice 2014: Nine Clashing Visions on the Supreme Court, the new book by Garrett Epps.

Epps is a lawprof with a focus on constitutional law.  He's also a credentialed reporter at the Court who writes regularly for The Atlantic.  It's not a bad combination for a book like this that "tries to give [his] sense one year in the life of the Supreme Court."  That year is the October Term 2013, the term that technically ended at the end of September this year but as a practical matter ended in June with the decision holding that Hobby Lobby would not have to provide birth control in the insurance packages it offered its employees no matter what the Affordable Care Act says.  (And if you come to this blog for my take on Hobby Lobby, you're going to be seriously disappointed.)

As a project, the one Epps set himself isn't bad.  Even though it's no more than a fragment, a moment in time necessarily limited in scope, you can learn a lot from a snapshot taken by a good photographer.  The snapshot provides focus, an opportunity to see and study one thing with care. When it's also well curated, you get context.  

There are, of course, many ways to take that picture of the 2013 Term.  You could look at the data.  How many cases?  What were the votes and who voted with whom most (or least) often?.  Who wrote concurrences and dissents and who just signed on to what someone else did?  You could ask what kinds of cases the Court chose to decide.  Business?  Criminal?  Were the successful petitioners individuals or businesses or government agencies or non-profits?  You could look into which courts got affirmed and which got reversed?  (Hint:  If the case comes from the 6th or 9th Circuit, it's almost certainly going to get reversed.)

Or you could pick, seemingly at random, a single opinion written by each justice and use it to try and reveal something about the justice and the Court as a whole.  Which is what Epps does.  And therein . . . .

Well, like I said, you can sort of see where this is going to go.

Consider the Clarence Thomas chapter.  Thomas is an interesting character.  A conservative African-American, he's deeply hostile to the affirmative action that worked to his advantage and, frankly, secured him a seat on the Court.  His confirmation hearings at the Senate Judiciary Committee were riveting television as he was accused by Anita Hill of graphic sexual harassment.  Epps summarizes.
Hill told the panel that her boss had harassed her in the rawest possible terms, pressured her to view pornography, discussed his own genitalia and sexual prowess, and asked her repeatedly for sex. Supporters of Thomas fought back with a furious attack on Hill's truthfulness and sanity, while Thomas branded the committee's hearing "a high-tech lynching for uppity blacks."

There's much of interest in Thomas, including his backstory.  And there's the curious fact that he simply doesn't speak at the Court.  It's been, quite literally, years since he's asked a question at oral argument.  Some say that indicates that he's just blowing it off.  Epps says he's deeply engaged, which you can tell because he sometimes whispers comments to Stephen Breyer while "grinning broadly."  Hmmm.

Mainly, though, there's his jurisprudence.  He views the law in rigid, cramped terms.  And he's "notoriously unwilling to compromise his own views in order to win over his colleagues."  So he frequently concurs or dissents by himself.  Moreover, he's often not particularly "interested in the narrow issue actually presented by facts of cases," looking instead to find a broader rule he can write or a precedent he can overrule.  Which is interesting.  And raises the question of why Epps chose to have the Thomas chapter nominally be about his narrow opinion for a unanimous Court in Susan B. Anthony List v. Driehaus.

Or take Chief Justice Roberts.  Epps explains that it's obvious to anyone who pays attention that "he was quite sincere in his wish for greater unanimity, greater judicial modesty, and a widely repected Supreme Court quietly calling 'balls and strikes.'"  That quote is from page 19.  On page 22, just three pages later, Epps notes that Roberts' encomia "to Rehnquist and Reagan cut against the promise of humility."  

The case Epps chooses for Roberts?  It's McCutcheon v. Federal Election Commission, in which he "brushes aside" precedent and offers, at "the heart of the opinion," a "view of democracy" that is, at least as far as its logic goes, "demonstrably false."

Here's the thing.  Epps likes the so-called liberals on the Court, none more than Ruth Bader Ginsburg, and he has no particular affection for the conservatives.  While disavowing any prediction for the future, he brands this (not quite with disdain) the "Alito Court" and identifies it as one that adores and supports the rich and powerful while eagerly repressing the poor and powerless.  That's fine (and not altogether wrong). And really, there's much to be said for a book with a point of view.

American Justice 2014 is published by the University of Pennsylvania Press, but don't let that fool you.  It's not an academic book, nor is it for specialists.  But the generalist, the gal who's got an interest in how the Court operates, the guy who wants to know the players? This is for them.

My thanks to the Penn Press for sending me a review copy of the book.

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