Thursday, June 14, 2007

Supreme Court Leaks?

So the Court didn't decide the voluntary integration cases today. The next date opinions come down is Monday, June 18. Perhaps then.

Meanwhile, over at Scotusblog, Tom Goldstein has a very interesting post on how conservative a Term this is shaping up to be. Tom thinks that when all is said and done, Justice Kennedy will have broken right more often and in much more significant cases than he has broken left. That may be right, but meanwhile, I'd like to call attention to an interesting line in Tom's post. Discussing the voluntary integration cases, he states: "The consensus is that the Chief Justice is writing an opinion invalidating the school assignment programs."

The consensus among whom? And how do they know? I highly doubt that Chief Justice Roberts himself has whispered this fact to the press, which leaves two possibilities: 1) Court-watchers have spun this theory from bits and pieces, such as the number of opinions the Chief has authored thus far, the questions asked at oral argument, and icy stares among the Justices. Such kremlinology is fun but highly speculative. That leaves possibility 2) A law clerk or administrative staff member is leaking. This would be an extraordinary breach of Court rules and etiquette. At least as far as I'm aware, in the past, when clerks and others have given tidbits to the press, they have waited until after the relevant case came down, and even then they do so anonymously because this is a clear violation of their obligation of confidentiality.

Accordingly, I'm going with theory number 1, which has the virtue of making it possible to think that the consensus is wrong, and thus that there's still a chance that the Court won't overrule Brown v. Board. (See explanation here.)


PG said...

I don't suppose you'll give us your thoughts on Jeffrey Rosen's rather vicious profile of Justice Kennedy?

Michael C. Dorf said...

Good question pg. Vicious, I'm afraid, is about right. I've known Jeff Rosen since college. He's a very smart guy and his legal scholarship is quite creative. In his incarnation as a public intellectual, he invariably stakes out what we might call a New Deal liberal position, highly skeptical of judicial review for liberal as well as conservative causes. That's a perfectly respectable position but Rosen has a bit of the very arrogance he attributes to Justice Kennedy. He, Rosen, is so sure that his view of jurisprudence is correct that he thinks that any reasonably smart person who takes a different view must be trying to pull a fast one. Thus, Rosen thinks that Kennedy's belief in the utility of courts must simply be a mask for aggrandizing his own power. It doesn't seem to occur to Rosen that Kennedy might have good reasons for his views, reasons of the sort that Ronald Dworkin and others have articulated at length. It's fine to disagree with their arguments, and I think Rosen and the conventional wisdom are right to find some of Justice Kennedy's rhetoric a bit over the top, but Rosen's assumption that the key to understanding Justice Kennedy is psychoanalytic rather than jurisprudential is itself arrogant. One might equally probe Rosen's own childhood and early professional associations for the sources of his views. So, while there's nothing wrong with strongly disagreeing with the philosophy and opinions of Justice Kennedy (or any other Justice), I completely agree that it's simply scurrilous for Rosen to say that Kennedy merely makes a show of agonizing for the purpose of inducing lawyers and his colleagues to supplicate themselves before him. Indeed, Rosen's own citation of cases in which Kennedy in fact changed his mind after the conference belies his claim that Kennedy's mind is always really made up and that the agonizing is just a show.

Benjam said...

i'd like to get back to the question michael posed about Brown being "overturned" in the headlines. i was in fact quite surprised by justice roberts when listening to the oral arguments held for the seattle schools case.

at one point, the chief asks the attorney for the schools: "so how is this case different from Brown?"

i felt like jumping out of my skin and shouting: "Brown was about an evil and prolongued history of white supremacy in this county. this case is about trying to remediate some of those sins."

but the more i thought about it, the more i realized that the chief has a point. in Brown, the school used race as a criterion to promote a perceived social benefit-- racial segregation. in seattle, the schools are using race to promote a perceived social benefit-- racial integration. if the court allows the seattle program to stand, it will seem to be embracing the "correct" policy rather than applying constitutional rules in a neutral manner.

the outcome here is a no-doubter: a roberts opinion will strike down the school integation program and he will use Brown as his weapon of choice. his opinion will conclude that the principles of Brown prohibit these kinds of race-based programs. the only thing more ironic and insulting would be to let justice thomas author the opinion.

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