A Supremely Problematic Leak

America was rocked today by the news of the leaked Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization, the case addressing the continuing vitality of Roe v. Wade. The leaked document was a draft of an opinion written by Justice Alito that would–if ultimately issued–reverse Roe as wrongly decided, and leave abortion rights to be decided by state legislatures.

The views on both sides of the abortion debate are so heated it’s impossible to fully set them aside to focus on the fact of the leak itself. But the leak deserves attention in its own right, regardless of which side of the Roe debate you are on. Although there have been leaks at the Supreme Court, those instances are rarer than hen’s teeth. The Court is used to conducting its deliberations and opinion-writing in complete secrecy, with no indication of its decisions outside of the tiny universe of Justices and their clerks until the Court’s opinion on a matter is publicly announced to the public. There is good reason for that rule of strict confidentiality: the Supreme Court routinely handles cases of enormous importance, and any kinds of leaks could have far-reaching political, economic, and social consequences–just as the leak of the Dobbs opinion did.

The idea that someone leaked a draft Supreme Court opinion under these circumstances is horrifying to those of us in the law profession. A tweet from SCOTUSblog, a non-partisan website that carefully covers every case before the Supreme Court, aptly captured the reaction of many: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.” Chief Justice Roberts echoed that sentiment in the statement he issued today, which noted: “Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”

The Chief Justice has ordered the Marshal of the Supreme Court investigate the source of the leak, which is absolutely the right thing to do. We don’t know yet who leaked the opinion, but it’s clear that their intent was to manipulate the decision of the Dobbs case, the votes of Justices, the terms of the Court opinions, and the political and public reaction to a potential reversal of Roe. The Chief Justice vows that the work of the Court “will not be affected in any way” by the leak, and states: “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” But what’s troubling here is that someone–a clerk, an employee, or even a Justice on the Court–attempted to exert extrajudicial influence on the Court in the first place. That prospect is extremely unsettling, because if someone thought it was appropriate to leak the draft of the Dobbs opinion, what’s to prevent leaks in the future of opinions in cases involving redistricting, or presidential powers, or the death penalty, or any of the other hot-button issues that the Court regularly addresses?

I would make one final point: although the Court typically keeps virtually everything about its operations confidential, I think it is important for the Court to disclose any findings the Marshal makes about who did the leaking, and why. The role of the Supreme Court is essential to our constitutional system, and leaks erode the trust that is one of the Court’s most powerful attributes. The public deserves to know who–as the Chief put it–tried to “undermine the integrity” of the Court’s operations.

Bringing Different Forms Of Diversity

Much has been written about how Judge Ketanji Brown Jackson, if confirmed by the Senate, would become the first Black woman to serve on the U.S. Supreme Court. Less has been said about the other diversity elements that Judge Jackson would bring to the Court–diversity elements that I think also are important.

Judge Jackson would be the first former federal public defender to become a Supreme Court Justice, and she also served for a number of years as a federal district court judge. These are significant points of experiential diversity. Public defenders are a key part of the criminal justice system. Judge Jackson’s work in that role is bound to inform her thoughts on criminal justice issues that may come before the Court, such as prosecutorial misconduct, setting bail, and sentencing. Similarly, Judge Jackson’s years spent supervising a district court docket–conducting jury trials and bench trials, deciding motions in civil and criminal cases, resolving evidentiary disputes, and making her own sentencing decisions, among other activities–will give her a practical perspective on those issues that will be helpful to the Court and that are not possessed by those Justices whose pre-Court resumes don’t include those kinds of experiences.

I’m a big proponent of diversity in all forms, including the diversity of viewpoint that can be shaped by direct, hands-on experience and observation. Supreme Court decisions that are informed by a Justice’s practical experience are bound to result in the articulation of more knowledgeable, workable rules that are meant to apply to the everyday workings of the American judicial system. If the Supreme Court were to consider, for example, the issue of how district courts must address a particular issue, I would expect Judge Jackson’s boots-on-the-ground views on that issue would be persuasive to other members of the Court. Even if her opinion on the issue didn’t command a majority, the discourse will inevitably help to shape a better, sharper, and more focused approach.

I’ll be interested in seeing whether the confirmation hearings on Judge Jackson will address these additional points of diversity, and in the future I’ll continue to hope that Presidents consider other yet other forms of diversity in making Supreme Court nominations. For example, it would be nice to see more nominees from non-Ivy League law schools, and more nominees who did not serve as Supreme Court clerks. (Judge Jackson is a Harvard Law graduate and clerked for Justice Breyer, whose retirement allowed her nomination.) Those of us who went to other law schools and didn’t obtain Supreme Court clerkships would like to think we’ve still got a shot.

20 Years Later

On this 20th anniversary of the 9/11 attacks, I can’t help but remember that fateful day. Although two decades have passed, the memories of the burning, smoking towers, watching the TV news and seeing the planes converted into missiles to achieve the murderous goals of al Qaeda and Osama bin Laden, and feeling that the whole world was turned upside down, are still fresh and painful. As that terrible morning of shock and horror ended, we were able to go pick up the kids from school, and one of my lasting memories from that day was the immense feeling of relief at getting the kids into the car and bringing them home, where our family could all be together and we could be sure that all of us were safe and secure. I’ll never forget that feeling.

Twenty years is a long time, and today is a time for reflection. A lot has happened in the years since the attacks. America is still here, of course, but there is no doubt that the country has changed in the interim. That shouldn’t come as a surprise. A shock like 9/11 is bound have some long-term consequences, like a colossal rock thrown into a pond causes ripples that ultimately touch every part of the pond’s shoreline. The key point now, in my view, is to focus on where we go from here. The war in Afghanistan is over, and obviously it ended badly. How does the country respond to that reality, and will we finally learn the hard lessons that we have been taught at the cost of twenty years of fighting, thousands of American lives, and billions, if not trillions, of dollars? Or will we forget those lessons the next time a tragedy tempts a President to take the country into another foreign adventure?

And more fundamentally, where is our country headed as a free, democratic society? Just this week President Biden announced that an administrative agency is working on an emergency regulation that is designed to affect the jobs and livelihoods of tens of millions of people who have made a choice to remain unvaccinated and the companies that employ them. Those of us who remember the Schoolhouse Rock song about the process of how a bill becomes a law wonder how in the world the President can presume to exercise such extraordinary power without hearings, amendments, and ultimately a law passed by Congress that specifically authorizes such sweeping action. But in the years since 9/11, we’ve gotten used to Presidents ordering deadly drone strikes, changing policies set by prior administrations, and imposing new obligations with the stroke of a pen.

In a way, has the long road that began with 9/11 led us to this point, where Presidents feel they can unilaterally exercise such vast powers, without the checks and balances that we learned about in Civics class? And, however we may feel about the best way to deal with the COVID pandemic (and for the record, I’m vaccinated), are we comfortable with a form of government where the executive branch, and in many instances unelected administrative agencies, wield all of the power and can issue emergency decrees that would have profound impacts on the lives (and bodies) of millions of Americans, without Congress, as the collective representatives of American citizens and our diverse communities, having voted to require that course of action, set the structure for how the action will occur, established the rules, and determined the penalties for non-compliance? The likelihood that the Supreme Court undoubtedly will ultimately have its say doesn’t make up for the fact that Congress, which was intended to be the primary instrument of government, has withered into insignificance and plays no role in debating and setting such important national policies.

It’s a lot to think about on a quiet Saturday morning, 20 years after a shocking day that we will never forget. But 20 years provides some perspective, and anniversaries are good times for reflection.

First Amendment Lessons

The Supreme Court issued an interesting First Amendment decision yesterday that is worthy of note on multiple levels–both for the important lessons it teaches about our modern social media society, and also for what it says about the boundaries of what public officials and school administrators can and cannot do, under the First Amendment, when somebody says something that they really don’t like. You can read the Supreme Court opinion here.

The facts are straightforward. A high school freshman tried out for the school cheerleading squad. She didn’t make varsity, but was offered a spot on the junior varsity. She was disappointed and angry about the decision, particularly since another freshman made the varsity squad and–like so many teenagers (and adults) these days–she took to social media to vent her apparently considerable frustrations. She took a picture, at a location off school grounds, that showed her and a friend with middle fingers raised and a caption with the Queen Mother Of Curses used in connection with the school and the cheer squad, and sent it to her 250 Snapchat “friends”–which included some other students who were members of the cheer squad. They took pictures to preserve the Snapchat post, which then was shared with other students, the cheerleading coach, and eventually the school administration.

And there’s the lesson in today’s social media-saturated world: don’t post or share something that you wouldn’t want to be circulated to everyone in town or printed on the front page of the newspaper. If our kids were still in school, I’d have them read this decision about an ill-advised social media effort that had immediate consequences and eventually ended up in the United States Supreme Court, and suggest that they think about the disappointed cheer squad applicant the next time they wanted to send an edgy, racy, or profanity-laced tweet, Snapchat, or other social media posting. And adults, including me, would benefit by reading it, too, as a useful reminder about how intemperate language launched in the heat of the moment can have lasting, and unwanted, ramifications.

In this case, the student apologized for the vulgar photo and crude language, but the school administration found that she had violated team and school rules by using a profanity in connection with a school extracurricular activity, and she was suspended from the cheer squad for a year. The student and her parents sued, claiming that the school’s disciplinary action violated the right to freedom of speech under the First Amendment. The Supreme Court ruled, in an 8-1 decision, that it did.

The Court’s decision is not a license for students to flash the middle finger at teachers during class or cuss out the assistant principal in the school hallways. The Court noted that while students aren’t stripped of their First Amendment rights when they go to school, reasonable adjustments to freedom of expression must be recognized to accommodate the special school environment. A key fact in this case was that the photo was taken off school grounds, but even that fact is not dispositive; the Court recognized that, in certain circumstances, schools can still properly regulate speech and conduct off-campus–such as in dealing with bullying or responding to physical threats against teachers. On the other hand, certain kinds of speech, such as the expression of religious and political views, will merit special protection against disciplinary action. And, because circumstances can change, the Court declined to articulate a broad rule about which off-campus speech and conduct scenarios can be regulated by schools, and which cannot. Those contours will have to be established by later cases and their specific factual circumstances.

Interestingly, the Court also cautioned school districts about understanding their role in making sure that students–and school administrators themselves–truly understand what the First Amendment is all about. The majority opinion states, in language that those of us who believe strongly in the value of free speech will applaud:

“Our representative democracy only works if we protect the “marketplace of ideas.” This
free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, ‘I disapprove of what you say, but I will defend to the death your right to say it.’”

In applying these concepts to the would-be cheerleader’s Snapchat post, the Justices concluded that, vulgarity aside, the student was simply criticizing the school and the cheer squad coaches–and protecting our ability to criticize our public officials is one of the core purposes of the First Amendment. She spoke off-campus, used a private communications mechanism, and didn’t target the school or any teachers or coaches by name, all factors that weighed in favor of First Amendment protection. Her right to criticize outweighed the school’s professed interests in promoting good manners among its students, in avoiding potential significant disruption of school activities (the Court noted there was no evidence of disruption caused by the Snapchat), and in protecting the morale of the cheer squad members.

The Court concluded: “It might be tempting to dismiss [the student’s] words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary.” Those are thoughts that I wholeheartedly agree with, and I hope that others–from public officials to the people who are readily offended by opinions they don’t agree with–also take that lesson to heart.

But what of the student whose ill-considered Snapchat started this kerfuffle and produced the Supreme Court’s ringing reaffirmance of the importance of the First Amendment? I bet, deep down, she wishes she had never sent that stupid, angry Snapchat in the first place.

The Unanimity Factor

From my perspective, one of the worst things that has happened to our federal governmental system has been the increasing efforts to apply political notions to our federal judiciary. Supreme Court nominations have been politicized for a while–although not for long as you might think; former Justice Antonin Scalia, a conservative stalwart, was confirmed by a unanimous Senate, 98-0, in September 1986–but now circuit court and even district court nominations are being treated politically, too. For example, Law360, which does daily on-line reporting on legal issues, breathlessly reports on how many judges President Biden (and before him, President Trump) is appointing, how many vacancies are open, and similar information, as if the make-up of the federal judiciary is some kind of political horse race.

And to read what some people have to say about the Supreme Court, you’d think that the Court is hopelessly divided along partisan political grounds, and that those Justices in black robes are at each others’ throats and at risk of throwing punches and karate kicks.

That’s why it’s interesting to observe that the Supreme Court has issued a remarkable number of unanimous decisions this term, for a Court that is supposed to be a festering sore of reflexive political division. And as we approach the end of the Court’s term, when many of the biggest and most controversial decisions traditionally are announced, the theme of unanimity has continued. That means that the Justices who some would contend are motivated entirely by their political affiliations have somehow managed to set aside their differences and mysteriously reach the same decision on the case presented to them.

The unanimity has occurred in a broad sweep of cases, including cases involving the authority of tribal police, whether there should be a presumption in favor of the credibility of immigrants, cases involving unlawful entry into the United States and an environmental clean-up dispute between the U.S. government and Guam, and cases involving the interpretation of a federal statute involving efforts to block collection of a tax and the scope of an exception to the Fourth Amendment prohibition on warrantless searches and seizures. And just this week, the Court issued another unanimous decision on whether the City of Philadelphia’s refusal to contract with Catholic Social Services for the provision of foster care services unless that organization certified same-sex couples as foster parents violates the free exercise of religion clause of the First Amendment.

The issue here isn’t whether the Court’s decisions are right or wrong on their merits, or as a matter of public policy. The key point is that a Court that is supposed to be on the verge of ideological fisticuffs is somehow managing to reach complete agreement on how to resolve a slew of controversial cases. And people have noticed the many instances of unanimity, and some have wondered whether the Court is trying to send a message to those who view its work in political terms.

Maybe, just maybe, the women and men who make up the highest court in the land are simply acting as impartial, fair-minded judges deciding the cases before them, on their merits and without regard to politics. It would be wonderful if the media, and the politicians, and the pundits and commentators who want to turn the federal judiciary into another political arm of government could just assimilate that reality–but in our current hyper-politicized times, that’s probably just too much to ask for. If only they were as objective and fair-minded as our jurists.

Taxing Remote Workers

Many of us have been working remotely since the coronavirus pandemic hit in earnest last March. If your place of work and place of residence are in the same state, there’s no problem. But what if you live in one state and would work in another state — that is, if you were still going into the office? Which state gets to share in the tax revenue on your income?

New Hampshire is asking the U.S. Supreme Court to directly answer that very question, in a challenge to a Massachusetts law that says Massachusetts may tax nonresidents who used to work in the state but now work from home instead. Other states are interested, too — some because they have tax laws similar to Massachusetts (like New York and five other states) and some because they are losing tax revenues as a result of such laws (like New Jersey and Connecticut).

The stakes are high, because the treatment of remote worker taxes can mean big bucks for state budgets. New Jersey, for example, estimates it will credit thousands of New Jersey residents who used to work in New York City, but now work remotely, for about $1.2 billion in income taxes paid to New York starting in March 2020. In an era where COVID shutdowns have cost countless jobs, and many state budgets are dealing with the lower tax revenues generated by the decreased economic activity, the treatment of taxes to remote workers could tip the balance between a balanced state budget and a budget that is in the red.

The Massachusetts law being challenged in the Supreme Court was adopted in April 2020; Massachusetts said the law just maintains the status quo income tax treatment of remote workers so Massachusetts won’t have to determine precisely where they are working during the pandemic. New Hampshire, which doesn’t have an income tax, says that by taxing New Hampshire residents who formerly commuted but now are actually working from home, Massachusetts is invading New Hampshire’s sovereignty and violating the due process and commerce clauses of the Constitution. New Hampshire has invoked the Supreme Court’s original jurisdiction, which allows one state to sue another state directly in the high court, without going through lower courts, if the Court gives them permission to do so. The Supreme Court has asked the Biden Administration to weigh in on whether it should take the case. There’s some urgency to this issue, both because of the budget crisis in many states and because tax season is just around the corner.

Taxation of remote workers is just one of the many interesting legal issues that are going to be addressed as a result of the pandemic, the governmental shutdown orders, and the resulting disruption of what used to be normal practices — practices that now may be morphing into a “new normal” where remote work is much more commonplace. And you can be sure of one thing: when a legal issue raises the prospect of shifting billions of dollars of tax revenue, you can expect cash-hungry states with their eyes on their budgets to fight like cats and dogs for every cent.

Betting On Sports

The Supreme Court made a lot of important rulings earlier this year.  One ruling that got a bit lost in the shuffle may end up having an important impact on states across the country, colleges that play big-time sports, and professional sports franchises, too.

In May, the Supreme Court struck down a federal law that effectively banned gambling on sports, with some exceptions, in all states but Nevada.  The federal law, called the Professional and Amateur Sports Protection Act, was based on concern that allowing widespread gambling might undercut sports as a form of wholesome entertainment.  Nevada, which already permitted gambling on sports, was allowed to continue, but other states were largely barred from doing so.  New Jersey passed a state law allowing gambling on sports and then challenged the federal law, and the Supreme Court sided with New Jersey, ruling  that while Congress has the power to regulate sports betting at the federal level, it can’t dictate to states what their individual laws must be.

Why did New Jersey decide to challenge the federal law?  Do you really need to ask?  Of course, the answer is money.  New Jersey’s casinos were struggling, and it objected to Nevada having a federally sanctioned monopoly on sports gambling.  If sports gambling were allowed in its casinos, New Jersey reasoned, it might promote tourism and increase tax revenues.  And these days, states are all about increasing their revenues.

With the Supreme Court ruling, Ohio legislators are now looking at whether Ohio, too, should legalize gambling on sports.  One argument made in favor is that many Ohioans already bet on sports through the underground economy — so why not take the activity above ground and get some tax revenue from it?  But the existence of the illicit sports betting also poses a challenge, because states that want to legalize the activity in order to earn revenue have to figure out how to make legal gambling as easy and attractive as calling the local bookie.  One issue for legislators to consider, for example, is whether Ohio should allow on-line gambling, so long as the website has some Ohio presence and the state gets a cut of the action.  Or, should such betting be limited to licensed casinos?

And colleges, universities, and professional sports leagues are holding their breath, too.  They opposed New Jersey’s effort to overturn the federal law, because confining legal sports gambling to Las Vegas kept it separate and apart from 99.9 percent of campuses, stadiums, and sports arenas.  Now legalized gambling on sports will be out in the open, and there are concerns that gamblers hoping to get an edge might bribe professional and amateur athletes to throw a game or do something to affect the point spread.

College sports administrators and professional sports leagues are worried about another Black Sox scandal — who can blame them?  After all, it’s been 100 years, and the 1919 American League champions from Chicago are still called the Black Sox.

The Bruising Battle To Come

Justice Anthony Kennedy’s concurrence in Trump v. Hawaii turned out to be a kind of farewell message from the longtime jurist, who announced his retirement yesterday after the end of the Supreme Court’s term.  His call for care and adherence to constitutional principles in the statements and actions of government officials in that concurrence has a special resonance now, as the nation moves forward into what will undoubtedly be a bruising battle over the nomination of his successor.

These days, every Supreme Court nomination is a huge event, but the replacement of Justice Kennedy is a special moment.  He has long been seen as the crucial “swing” vote in important, hotly contested cases that ultimately were decided by a 5-4 margin, and a centrist who might side with the liberal position in one case and the conservative position in another.  As a result, Republicans see the nomination of his replacement as a chance to reorient the Court, eliminate the “swing,” and lock in a predictably conservative majority — which is exactly what Democrats fear.  And who can blame them?  These days, with Congress often rendered inert by infighting and inability to compromise and the Executive Branch governing by executive order, the Supreme Court is increasingly seen, and has increasingly acted, as the ultimate decider of all kinds of policy issues that used to be reserved for the political branches of government.

The upcoming confirmation process will not be a high-minded moment for our country.  With passions already at full boil, and with Democrats angered by fresh memories of the Senate Republicans’ refusal to consider the nomination of Merrick Garland in the last year of President Obama’s term and Republicans recalling the Senate Democrats’ use of the “nuclear option” when the Democrats were in the majority, we can expect a heated, partisan, no-holds-barred process.

This means that the nominee, whoever it is, will receive the most exacting examination imaginable.  You can be sure that every organization, position, and activity on the nominee’s resume, from college days forward, will be put under a microscope, and every word in every opinion the nominee has written will be inspected and weighed for signs of intrinsic bias that could be used to argue against confirmation.  Can a President who has lots of skeletons in his own personal closet, and who has struggled to identify qualified individuals to fill positions in his Administration, actually select a nominee who can withstand the spotlight that will be directed at everything he or she has done?  And how many potential nominees — and their families — will quail at the prospect of such personally intrusive, withering scrutiny?

It’s not going to be pretty, folks.

Backseat Nuclear

Yesterday the Senate voted to change its rules to determine that a 60-vote supermajority requirement does not apply to Supreme Court nominations.  The decision means that it will no longer be possible to filibuster Supreme Court nominations, which now can be approved by a simple majority vote.  That reality, in turn, clears the way for Neil Gorsuch to take a seat on the nation’s highest court.

Although everybody has called the procedural change “the nuclear option,” this whole spiraling process has always struck me as less like a tense, world-threatening confrontation between countries equipped with atomic weapons and more like a dispute between two bored and bratty kids sitting in the back seat of the family car.  Things escalate, suddenly the kids are pushing and shoving and yelling while the parents in the front seat try to break things up and calm things down, and in the end each red-faced kid blames the other for starting it.

In this case, Republicans blame Democrats for being the first to exercise the nuclear option, and Democrats respond that Republican intransigence forced that decision.  Republicans blame Democrats for reflexively opposing President Trump’s nomination of Neil Gorsuch to the Supreme Court, despite his obvious qualifications, and Democrats respond that the Republicans’ refusal to even consider President Obama’s nomination of Merrick Garland, who also was qualified for the Supreme Court, is what created the current atmosphere.  You really wondered what the parties were going to do absent this procedural change — automatically oppose all Supreme Court nominations by the President of the opposing party until the Supreme Court itself has vanished through age and attrition?

During those grim family car trips, the squabbling kids calm down, the journey continues, and the parents breathe sighs of exasperation and then relief.  Is that going to happen here and — as the parents in this scenario — how are exasperated American voters going to react?  The filibuster was a means of preserving some modicum of power for the minority and of requiring at least a nod to civility and consensus-building, but it also was a self-imposed rule that allowed individual Senators to feel self-important.  If it’s gone, it means that Senatorial privileges have been reduced and that those depictions of the U.S. Senate as “the world’s greatest deliberative body” inhabited by statesman have been further undermined, because true statesmen, regardless of party, would never have allowed things to reach this embarrassing level.  

But, in this day and age, is anyone really surprised that the U.S. Senate is home to a bunch of partisan hacks, on both sides of the aisle, who have put party and interest groups ahead of the national interest?

Redefining “Presidential,” And Reconsidering Overreaction

In some way, Donald Trump is like the weather:  you’d like to ignore him, but you just can’t.  He’s like that blustering, loud summer thunderstorm that blows in on the day you’ve scheduled an outdoor party and requires everybody to change their plans whether they want to or not.

It’s pretty obvious, after only a few days in office, that the era of Trump is going to change how we look at our presidents, and what we consider to be “presidential” behavior.  In recent decades, we’ve become used to our presidents maintaining a certain public decorum and discretion.  Sure, there have been a few exceptions in the sexual dalliance department, but for the most part our modern presidents have tried to take the personal high road.  They leave the attacks to their minions and strive to stay above the fray.

Not President Trump.  He’s down there himself, throwing punches via Twitter.  His most recent activities in this regard involve lashing out at the federal district court judge that issued a temporary restraining order against Trump’s immigration executive order.  Trump referred to Judge James Robart as a “so-called judge” and said his ruling was ridiculous.  Senate Minority Leader Chuck Schumer immediately attacked Trump, saying his comment “shows a disdain for an independent judiciary that doesn’t always bend to his wishes and a continued lack of respect for the Constitution.”

I’ve got mixed feelings about all of this.  I personally prefer the more genteel, above-the-fray presidential model; I think it’s more fitting for a great nation that seeks to inspire others and lead by example.  I wish our President wouldn’t “tweet.”  But I also recognize that American presidents haven’t always been that way.  The behavior of presidents of the 1800s — think Andrew Jackson, for example — was a lot more bare-knuckled than what has come since.

I also think there’s danger for the Democrats in repeatedly overreacting to Trump.  If you argue that everything Trump does is the most outrageous travesty in the history of the republic (and that’s pretty much what you get from the Democrats these days) you ultimately are going to be viewed as the boy who cried wolf — which means the townspeople aren’t going to pay attention when you really want them to listen.  And in this case the reality is that, since the very early days of our country, elected politicians have been strongly criticizing judges.  Andrew Jackson famously declined to enforce a Supreme Court ruling, and Abraham Lincoln harshly lambasted the Supreme Court, and its Chief Justice, after the Dred Scott decision.  More recently, the rulings of the Warren Court became a political lightning rod during the ’60s, and President Obama saw fit to directly criticize the current Supreme Court, sitting right in front of him during a State of the Union speech, about their Citizens United ruling.

So Trump’s reference to a “so-called judge” really isn’t that big a deal when viewed in the historical context.  What’s weird about it is that it comes out in tweets — which makes it seem less presidential and, because it’s a tweet, less serious.  When Trump has these little outbursts I think if the Democrats simply shook their heads and said that what Trump is doing is “regrettable,” without acting like his every move threatens to bring down the Constitution, Trump’s Twitter act will wear thin on its own.

But they can’t help themselves right now, and neither can Trump.  So we’re going to have to ride out a few of those thunderstorms.

Looking To Fill The “Stolen Seat”

Last night President Trump nominated Neil Gorsuch, a judge on the federal 10th Circuit Court of Appeals, to fill the vacant seat on the United States Supreme Court.  His formal nomination triggers the start of what will undoubtedly be a bruising confirmation process, with some Democrats already promising to do everything they can to prevent seating Gorsuch on the high court.

There are three reasons for this.  First, the Supreme Court has assumed an increasingly important role in the American political process over the last 70 years, with people at all points on the political spectrum looking for the judiciary to recognize a new right, provide a remedy, issue an injunction, or overturn a statute or executive action.  The Supreme Court is the head of the judicial branch, and every year, the Court accepts and decides cases that require it to tackle difficult issues — some constitutional, some statutory, some procedural — that can have broad ramifications for people, businesses, the legal system, and how government works.

Second, as the importance of the Supreme Court has increased, the process for nominating, reviewing, and approving potential Supreme Court justices has changed.  Republicans blame Democrats for the growing politicization of the Supreme Court confirmation process, and Democrats blame Republicans, but no one doubts that we have moved into a new era of “extreme vetting.”  Nominees not only have their credentials, backgrounds, and prior opinions scrutinized for the tiniest kernel of a potential argument against nomination, but advocacy groups immediately declare sides and start their scorched-earth campaigns before the nomination speech is even completed.  Last night, only a few minutes after Gorsuch was nominated by President Trump, an anti-confirmation demonstration began on the Supreme Court steps, and opponents of the Gorsuch nomination appeared on the cable news shows, describing him in the darkest, most ominous terms imaginable.

And third, the atmosphere has become even more poisonous because the seat on the Supreme Court Gorsuch has been nominated to fill has been vacant for almost a full year, and the Republicans in the Senate refused to take any action on Merrick Garland, the jurist that President Obama nominated to fill that seat.  That’s why the New York Times, in an editorial today, calls the vacancy the “stolen seat” — reasoning that if the Senate had just acted properly last year, Garland would have been confirmed, and the balance of power on the Supreme Court would already be changed.  The Times editorial castigates the Senate Republicans for obstructionism and abuse of power in their treatment of the Garland nomination, but seems to also implicitly encourage — with a wink and a nod — Senate Democrats to respond to the Gorsuch nomination in kind.

So now we’ve got a Supreme Court nominee who has served on the federal appellate bench for 10 years, has all of the educational bona fides you would wish, and is classified by some as a “very conservative” judge.  I’m interested in seeing how the confirmation process plays out and what is brought out about Gorsuch’s background and judicial opinions — but that means the confirmation process has to actually start.  Here, too, as in other areas I’ve pointed out recently, Congress needs to do its job.  The Republicans need to shut up about the “nuclear option” that Harry Reid unwisely imposed, and the Democrats need to get over the Garland nomination inaction, and both sides need to acknowledge that the Supreme Court has nine seats that can only be filled if the Senate acts and start to address the Gorsuch nomination on its own merits.

One other thing:  as the current Supreme Court justices age, delay and inaction is not an option.  If we don’t get over this self-imposed roadblock to the proper functioning of our government, we might soon have another vacancy to fill, and another.  If the Republicans and Democrats don’t get over their political titting for tatting, we might end up with a gradually vanishing Supreme Court.

The Justice Scalia I Knew

The news media is reporting that United States Supreme Court Justice Antonin Scalia died today, apparently of natural causes, at age 79.

Justice Scalia served on the Court for 30 years.  He was a staunch conservative, and as a result he was the subject of lots of controversy and attention — as is seemingly every member of the Court, from one end of the political spectrum or the other, in these days when the Supreme Court and politics are more intertwined than ever.

I want to write about Justice Scalia for a moment, however, because he was one of two members of the Supreme Court I met personally.  (His friend and colleague, Justice Ruth Bader Ginsburg, was the other.)

I met Justice Scalia before he reached the high court, when he was a judge on the United States Court of Appeals for the District of Columbia Circuit.  In those days, 30 years ago, trying to achieve a balanced budget was a big political issue, and Congress had passed a law called the Gramm-Rudman Act that provided that, if Congress couldn’t meet certain budget targets, automatic spending cuts would be imposed by the comptroller general.  The law was immediately challenged in court on a number of constitutional grounds, including separation of powers, and the judge that I was clerking for, Senior United States District Judge Oliver Gasch, got the case by random draw.  In those days, such constitutional challenges to federal statutes could be heard by a three-judge court — comprised of the original judge, a court of appeals judge, and a second district court judge — and then be subject to immediate appeal to the U.S. Supreme Court.  Judge Scalia was the appellate court judge, and Judge Norma Holloway Johnson was the other district court judge on the panel.

The panel members and their clerks met regularly to discuss the case before the decision was announced, which is how I met Justice Scalia and got to work with him briefly.  Judge Gasch knew him, called him “Nino,” and liked him very much — so much so that my Judge gave some of his treasured cigars to Judge Scalia.  I came to like Judge Scalia, too.  He was witty and engaging and nice to the clerks working on the case, which could not be said of all of the judges serving on the district court and court of appeals at that time.  He had a fantastic sense of humor and told a pretty good joke.  He also was obviously a brilliant mind, which made working with him, when you knew his keen intellect would be reviewing your work product, a nerve-wracking experience for a new lawyer just out of law school.  Justice Scalia, though, was gracious, and his attitude made working with him a real pleasure.  He used his brilliance affirmatively, to bring out the best work from others, rather than negatively, as a cudgel or means of silencing contrary views.

The Gramm-Rudman case ended with our three-judge court unanimously voting to strike down the law, everyone went back to their respective chambers, and my brief exposure to Judge Scalia ended.  Within a short period the Supreme Court affirmed the panel decision and Judge Scalia himself was nominated to a seat on the Supreme Court — which was where his sharp legal mind really belonged — and confirmed.

I knew him only for a short time, but that limited experience left a very strong and positive impression on me, and I thank him for that.  Whatever people might say about his jurisprudence, I know from personal experience that he was a good man.  Condolences to his family and friends.

The Value Of Marriage

I’ve long supported same-sex marriage because I think marriage is a great institution.  It has made my life immeasurably better — so why shouldn’t every couple have the opportunity to enjoy its timeless benefits?  I simply don’t understand the objection to couples who want to legally declare and formalize their fidelity to each other.

I was therefore struck by the fact that Justice Kennedy’s majority decision in Obergefell v. Hodges, where the Court held that same-sex couples have a constitutional right to legally marry their partner, extols the value of marriage.  In fact, the opinion concludes with a ringing endorsement of the core, intrinsic value of marriage:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

I am thrilled for my same-sex friends, and happy for every couple that will now have the ability to explore and revel in the wonders of a happy marriage.

Protecting Cell Phone Privacy

The Supreme Court issued an important ruling yesterday.  In a 9-0 decision, the Court ruled that police must obtain a warrant before they search the cellphones of people they have arrested.  The ruling won’t directly affect most of us — unless you’re planning on being arrested in the near future, that is — but it represents a significant recognition of the central role of cellphones in our lives and an important bit of line-drawing in the ongoing battle between personal privacy and law enforcement.

In the ruling, Chief Justice John Roberts addressed both the pervasiveness of cellphones in modern America and the sweeping extent of information that people store on them.  From photos and video to address books, emails to calendars, financial information to maps, and other records of where we have been and who we have communicated with, cellphones are a handheld repository of huge amounts of very personal information about our private lives.  The Chief Justice thus reasoned that allowing warrantless searches of cellphones would be akin to the hated “general warrants” executed by the British authorities during colonial times that allowed them to rummage freely through homes in an effort to find some evidence of some kind of otherwise uncharged criminal activity — which is what drove the creation of the warrant clause of the Bill of Rights in the first place.

The Court also rejected arguments that a search of cellphones is needed to protect police officers or prevent the destruction of evidence.  When an arrest is made police can examine the cellphone to ensure that it can’t be used as a weapon and secure it, and if there is concern that evidence on the phone might be destroyed the officer can turn off the phone, or remove the battery, or place it in a foil bag to prevent any exchange of signals.  But before the police can access the cellphone and begin reviewing recent emails, the logs of recent calls, and other information, they must make the probable cause showing required by the Fourth Amendment and convince a judge to issue a warrant.

Two other points about the opinion seem worth emphasizing.  First, it was a unanimous decision.  For all of the fretting about political fracturing and the liberal and conservative wings of the Court, all of the Justices were able to agree on how to resolve a very central issue of how the Constitution works in modern life.  There’s nothing wrong with members of the Supreme Court disagreeing about legal issues — that’s why there are nine of them and the majority wins — but it’s nice to see the different perspectives coalesce around a simple, common approach to protecting individual liberty and privacy rights.

Second, many people have criticized jurists who return to the intent of the Framers of the Constitution and seek the meaning of its provisions in the historical context in which they were adopted, arguing that the Constitution should be a living document with meaning that changes in response to the realities of modern life.  Others contend that such an approach strips America’s core founding document of any objective significance and leaves it to mean whatever five Justices of the Supreme Court say it means.

The Court’s cellphone opinion, with its reference to the history of general warrants, shows how it is possible to draw upon historical context to identify the basic motivating principles underlying the Constitution and then apply those principles to the modern world.  Those observers who poke fun at purportedly hidebound efforts to discern “original intent” likely are happy with the opinion yesterday, but not about how the Court got to that result.

No DOMA Nation

Yesterday the Supreme Court struck down a key provision of the Defense of Marriage Act, a 1996 federal law that denied rights and benefits to same-sex couples, and rainbow flags flew from sea to shining sea.

The Court’s decision was one of two rulings yesterday that addressed gay marriage.  In the DOMA decision, a 5-4 majority of the Court concluded that the statutory provision violated the right to liberty and to equal protection for legally married gay couples.  The ruling means that the thousands of gay couples who are legally married under the laws of certain states will be able to take advantage of federal tax and pension rights and other benefits that are available to other married couples.  In the other ruling, the Supreme Court held that proponents of California Proposition 8, which prohibits gay marriage, lack standing to defend the law.  That ruling leaves a lower court ruling that struck down Proposition 8 intact and therefore allows California to resume with state-sanctioned same sex marriages.

The Supreme Court decisions are not the last word on the subject, because gay marriage is not legal in a majority of the states and the DOMA decision did not address a provision of that statute that provides that states are not required to recognize gay marriages performed in other states where gay marriage is legal.  Opponents of same-sex marriage say they will continue to advocate on the issue.

I’m in favor of same-sex marriage, and I’m thrilled for my gay friends whose legal marriages are now given all the rights and benefits available under federal law.  I’m also hoping that the Supreme Court’s decision helps the United States to put this issue behind us — as opposed to becoming the lightning rod on a bitterly contentious social issue, as happened with the abortion rights decision in Roe v. Wade.  It’s time for this country to stop focusing on issues that divide us, and to start focusing on how we can work together to solve our problems.