Good book. Not a law professor’s book; not even the sort of law professor’s book that’s written for a lay audience. Nor does it get deep into the weeds the way Edward Lazarus’s Closed Chambers did. Instead, it was like a casual conversation with someone who was deeply involved in writing the world we live in.
It’s mostly conversational, but emotion does bubble up. On the retirement of Justice Thurgood Marshall, who he clearly had great respect for:
“Thurgood’s retirement may well have been the most significant judicial event of Bill Rehnquist’s tenure as chief justice. When I reflect on its importance, I think first about my memories of his contributions to our conferences and his personal friendship, and second about the changes in the Court’s jurisprudence that are attributable to his successor, Clarence Thomas.” (186) . . . “The importance of the change in the Court’s jurisprudence that is directly attributable to the choice of Clarence Thomas to fill the vacancy created by Thurgood’s retirement cannot be overstated. . . . [D]ecisions made by five-to-four votes in which Clarence was a member of the majority are evidence of that importance because I am convinced that Thurgood would have voted with the four dissenters in most, if not all, of them While Thurgood’s jurisprudence reflected an understanding that the Constitution was drafted ‘to form a more perfect Union’ – and thus to accommodate unforeseen changes in society – Justice Thomas’s repeated emphasis on historical analysis seems to assume that we should view the Union as perfect in the beginning and subject to improvement only by following the cumbersome process of amending the Constitution. Three five-to-four decisions in which Clarence provided the critical vote to invalidate federal gun control laws illustrate the point.” (187-88)
Which is a wonderful articulation of how the judge’s understanding of the constitution impacts the bottom line decision. Is it an instrument of the ongoing Enlightenment, or was it ghost written by the divine or invisible hand? I know what I believe, or at least, which tentative hypothesis I’m operating under. But I can’t say I’m without sympathy for the pragmatic view that giving judges the ability to announce what the Constitution really means amounts to an enormous delegation of power to those wearing the black robes. It’s all a rich tapestry. Movin’ on.
We spent weeks on Seminole Tribe in Federal Courts once upon a time. That’s the case where the court, via Chief Justice Rehnquist, found states had a type of constitutional sovereign immunity implicit in the Eleventh Amendment. The Eleventh Amendment says “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The conservative majority of the court found this prevented the Seminole Tribe of Florida from suing the State of Florida for violation of its federal statutory rights. My eyes glaze over trying to remember the court’s reasoning now (amazing how rarely people ask state courts to figure out such things). Stevens is comparatively scathing in his condemnation of the chief’s reasoning, observing ““Depriving a state of the mysterious right to protect its dignity from its own citizens is equally necessary to protect the federal rights of those citizens.” (196). Which, if you know the embarrassing history of the 14th Amendment in federal courts during Reconstruction, is a devastating critique. Stevens is almost Hitchens-esque in his final observation on Seminole Tribe: “Like the gold stripes on his robes, Chief Justice Rehnquist’s writing about sovereignty was ostentatious and more reflective of the ancient British monarchy than our modern republic. I am hopeful that his writings in this area will not be long remembered.” (197).
In the USSC, when the chief is in the dissent, the senior judge in the majority makes the writing assignment. Stevens is dead on when he observed that “I do think I hit the nail on the head in at least three important cases (Blakely v. Washington, Romer v. Evans, and Grutter v. Bollinger) in which the chief was in the dissent. Despite vigorous dissent in each, these three excellent opinions will, I am confident, pass the test of time with flying colors.” (238) “Justice Kennedy’s opinion for the court in Romer v. Evans (1996) . . . sounded the death knell to Bowers v. Hardwick, the 1986 cases holding that the due process clause of the Fourteenth Amendment did not forbid Georgia from making it a crime for same-sex couples to engage in conduct that was assumed to be lawful for heterosexuals. By making mere animus toward a group an inadequate rationale for a discriminatory law under the equal protection clause of the Fourteenth Amendment, Romer suggested that a criminal prohibition of homosexual sodomy would likely be struck down if challenged on equal protection grounds. Seven years later, in Lawrence v. Texas (2003), Justice O’Connor took this position.” (239-40). I can’t say I have never cursed Blakely and wished the court hadn’t just admitted it made a mistake, or at least, suffered a failure of imagination, when it said that legislatures could simply declare what was an element, what was a sentencing factor, but I cannot quarrel with its bottom line. The State should prove its case to a jury beyond a reasonable doubt, not persuade a judge on a preponderance standard. That works for me. Which they’d pointed that out A LITTLE EARLIER.
He also alludes to Parents Involved, a case I spent no little time on once upon a time. And because of him, I know that President Ford and I have more similar feelings than I realized.
A good book. Glad I read it. It won’t be on my shelf next to Cardozo’s The Nature of the Judicial Process, metaphorically, but it was still fascinating to see this sort of exploration of how the court operates.
Geoff Stone’s review is spot on. http://www.huffingtonpost.com/geoffre...
. I'm not sure I have the same edition Good Reads had since the page count is off.