What’s so hard about televising oral arguments?

The question whether the cameras should be allowed in the Supreme Court is heating up. Most recently, CSPAN asked the justices to allow it to televise the oral argument over the health care law. It is unlikely that the justices will grant the request. In a recent sidebar, Adam Liptak argues that these refusals are based on “paternalism and self-interest.” Tony Mauro similarly argues that the Court's refusal to allow cameras in its courtroom "is born of fear of change, nostalgia, a self-interested desire for anonymity, but most of all exceptionalism: the Court's view of itself as a unique institution that can and should resist the demands of the information age."

Nancy Marder disagrees and argues instead that the justices have struck the right balance between the openness that the justices have chosen for themselves and their work and the obscurity in which their work must take place.

Liptak and Mauro take this one, and it’s not even close.

Justice Alito and the Art of Doing Justice

When I think about the qualities that inform Justice Alito's jurisprudence, a desire to "do justice" easily ranks at the bottom.  Not so for Adam Liptak, who argues that Alito "is alert to injustice, and he is a careful legal craftsman." I don't have a lot to say about Alito's legal craftsmanship, though I imagine that his colleagues might find the comment offensive, distracting, or even silly, if by it Liptak means to draw a distinction between Alito and his fellow justices (note the headline: "When fairness and the law collide, one jurist is troubled."  One jurist?  Shouldn't all jurists be troubled?). I am far more interested in the first quality.

Are we supposed to believe that Justice Alito is "alert to injustice?" What could that possibly mean?

Liptak's choice of examples is telling.  One is the case of a death row inmate who lost his chance to appeal when his lawyer missed a crucial filing deadline (Maples v. Thomas, discussed here).  Another is the case of a client whose lawyer gave him bad advice, which ultimately subjected him to deportation proceedings (Padilla v. Kentucky).  A third is yet another case where the lawyers missed a deadline (Holland v. Florida).  These cases share an obvious, common thread.  They are cases of procedural justice, cases where clients have a right to an appeal taken away through what Alito terms in the Maples case "a series of very unusual and unfortunate circumstances," or else, as in Padilla, the right is exercised poorly, in that the advice of the lawyer subjects the client to "such a harsh consequence" (i.e., deportation after living in the United States for 40 years).

Without question, these are troubling cases. So what makes them interesting is not that Alito is struggling with a legal standard, but that Scalia and Thomas dissented in the first two (and might yet dissent in Maples, which will be decided later this Term).  Also, what to make of the other six justices who joined the majority opinions in Padilla and Holland?  Are they not struggling with the same sets of issues that trouble Justice Alito?  And if not, why not?

Liptak closes the piece with the well-known exchange between Judge Learned Hand and Justice Holmes, which Judge Hand recalled in his 1958 Holmes Lectures at Harvard.  According to Judge Hand, he told Justice Holmes as Holmes walked off on his way to the Court, "Well, sir, goodbye. Do justice!" To which Holmes famously replied, "That is not my job. My job is to play the game according to the rules."  Liptak uses this exchange to illustrate Alito's apparent conundrum; in Liptak's words, "Justice Alito struggles to bridge the gap. He wants to do both."

This is a curious piece on too many levels.  I have already alluded to the notion that singling out Justice Alito in this way is a bit silly.  It is not entirely clear why this is a struggle in Alito's mind but not for the rest of the justices.  But more importantly, why this piece, and why now?  Surely, it cannot be the case that Mr. Liptak is running out of ideas, if the last month is any indication.  This is the beginning of the Court's Term, a time when cases are plentiful and topics abound.  And we are reading about Justice Alito's struggle between "doing justice" and applying the law?  Seriously?

Here's an easy way to show how silly this all is: go back to Liptak's own piece this past Sunday on the latest challenge to racial diversity in college admissions. In order to understand how silly this concept of justice is as applied to Supreme Court justices, take a look at that debate and the role played by "justice" in it.  This is a debate about racial justice; it just so happens that both sides of the debate disagree about what this kind of justice looks like.  And when the five member majority on the Court decides this case, they will apply their very own brand of racial justice, unmoored from constitutional norms as established in 1868.  This will be racial justice understood as personal preferences, no more and no less. You can even call it "living constitutionalism" if it helps.

What to make of Justice Alito and justice, then?  Nothing.  This alleged conflict is only a struggle of Liptak's own making.  This is because Alito is only wanting to have his cake and eat it too.  He wants to be free to do as he wishes within the shallow constraints of his office. 

This is neither new nor peculiar to Justice Alito.

On Justice Thomas' silence . . . and a journalist's odd choice

In Sunday’s New York Times – on its front page, no less – we find an article by Adam Liptak about Justice Thomas and his reticent to speak from the bench. Anyone familiar with the Court will not be surprised by this story. In fact, they will be surprised that the story was published by the Times in the first place, and on the front page to boot. 

This is not to say that the story is not interesting in its own right and worth reading. But not for the reasons you might think. 

For one, it may well be the case that Justice Thomas is really not that interesting, or a deep thinker. Why assume that he – or any other justice -- is? Why assume that mere mortals are transformed into philosopher kings simply by virtue of donning a judicial robe? 

Something else entirely caught my eye. Later in the article, Liptak quotes from a piece in the Florida Law Review by a third year law student. Two things about this choice on Liptak’s part raises eyebrows. The first is the fact that he chose to publish a piece from the Florida Law Review, hardly considered a leading review by those who have nothing better to do than to rank these things. The second is that the author is a law student, and not some major eminence in the field of law. It must be the case, then, that whatever this student wrote is simply brilliant, the kind of thing that Liptak could only get from this piece and nowhere else. But that is not quite so. The quote is not that insightful: “If Justice Thomas holds a strong view of the law in a case, he should offer it . . . . Litigants could then counter it, or try to do so. It is not enough that Justice Thomas merely attend oral argument if he does not participate in argument meaningfully.” 

So why is Liptak quoting from this obscure piece? All that makes sense is that the author is David Karp, described by Liptak as a “veteran journalist.” This might mean – and this is the only way that any of this makes any sense – that Liptak and Karp are friends, acquaintances, or something along those lines. Liptak is essentially doing a friend a favor. For make no mistake, to get quoted in a Times piece is a much bigger deal in the law schools than it deserves to be. Go to a random law school website and tell me what you find: right in the front, law schools love to advertise how their professors are quoted and cited across the globe. I find the practice quite embarrassing, for it is clear that getting cited or quoted is more a reflection of the size and quality of one’s rolodex than of whatever it is one is saying. (If anybody out there ever finds a quote that is not a reflection of one's standing and networks rather than the worth of the quote itself, please pass it along; I have yet to see one).

Justice Thomas is not about to start speaking – he does not appear to have it in him – and the law schools are not about to stop advertising every breath one of their professor takes that is noted in print. 

Who do they think they are kidding?

The Upcoming Health Care Decision and the Legitimacy of the Court

On Sunday's New York Times, Adam Liptak asked, rather provocatively, whether the U.S. Supreme Court would lose legitimacy if it struck down the health care law.  I think the answer could not be clearer.  If the Court's legitimacy did not suffer in the wake of Bush v. Gore, the health care law won't do it either.  So much is clear.

But this is not what makes the health care litigation interesting and worthy of attention.

A Word on the "Mystery" of Justice Stevens' Change of Heart on the Death Penalty

In Sunday’s New York Times, Adam Liptak “settles [a] legal mystery:” how to explain Justice Stevens’ vote to reinstate the death penalty in 1976 and his shift in 2008, when he wrote that he believed the death penalty to be unconstitutional?  To the untrained eye, this might appear to be a puzzle indeed.  If the Constitution is but an unchanging legal document, and the Justices’ job is akin to legal archaeology, how to explain any change in legal doctrine, not to mention changes of heart among particular justices? 

Justice Stevens’ answer is uneventful: changes in the composition of the Court, coupled with what he labeled “regrettable judicial activism,” led to a system that is no longer constitutional.   In other words, a process that once could withstand constitutional scrutiny was irretrievably damaged by allowances made by the Court itself.  This is a process, Liptak writes, “shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.”

But clearly this is no mystery.