Wednesday, August 10, 2016

Reading Justice X's Mind

by Michael Dorf

While attending a conference about fifteen years ago, I had a conversation with a prominent constitutional law professor at another law school that went something like this:

Him: Do you know what is the most disheartening part of this otherwise delightful job?

Me: Committee work?

Him: Well, yes, but I meant on the scholarly side.

Me: I don't know, maybe having to address the same arguments over and over again.

Him: To me the worst part is that I sometimes feel like 80% of what we do is try to read Sandra Day O'Connor's mind.

At the time, Justice O'Connor was the "median Justice," and so my interlocutor meant that for all of our efforts at analyzing text, history, doctrine, and so forth in our consideration of the work of the Supreme Court, in the big cases with some ideological valence, we were just trying to predict which way Justice O'Connor would go. Whatever expertise we law professors have in psychoanalyzing the justices we study at length (and I think we have quite a bit), that is hardly what we like to think we are doing.

Justice O'Connor retired a few years after the conference. At that point, the job of the constitutional law professoriate shifted to one of reading Anthony Kennedy's mind, as he became the median justice. Because I am one of a small number of identifiably liberal law professors who are former law clerks for Justice Kennedy, his new status led to a fair number of opportunities for me to advise liberal litigation shops (ACLU, Lambda, NAACP LDF, etc.) about how to appeal to Justice Kennedy. It also gave me somewhat greater access to media than I would otherwise enjoy--although I am always somewhat uneasy when I am identified as a former Kennedy clerk because the association might suggest some inside information. At this point, almost a quarter century after my clerkship, any inside information I have is hopelessly stale, and I wouldn't share it anyway if I had it.

Whether I continue in my role as informal Kennedy mind reader much longer will depend on the outcome of the presidential election. Should Donald Trump win, then, assuming he does not consolidate all power in his tiny hands or reduce the Earth to a smoldering hellscape, my work as Kennedy sage will continue. Trump will nominate someone to the right of Kennedy, and because a world in which Trump wins the presidency is a world in which the GOP maintains control of the Senate, the Senate (perhaps after changing the cloture rule) will confirm the nominee. Kennedy would continue to be the median justice--at least until there is another vacancy and replacement.

In the more likely event that Hillary Clinton wins the presidency, either Merrick Garland or someone else to the left of Kennedy would be confirmed, also potentially after a change in the cloture rule. At that point, either Garland or Stephen Breyer would be the median justice. One reasonable study places Garland slightly to right of Breyer, so Garland's confirmation would mean he is the median justice. Were Garland to withdraw or be withdrawn, Clinton would likely nominate someone more liberal, which would make Breyer the median justice. But whether the new median justice is Breyer or Garland, my Kennedy mind-reading "expertise" would be in less demand. Of course, 80% of the job would still be mind reading, just of a different mind.

In preparation for that potential new world, I now turn to my latest Verdict column. It is not exactly an exercise in mind reading, but it does focus on Justice Breyer. In particular, I examine his short concurrence last week in Gloucester County School Bd. v. G.G.  The SCOTUS stayed lower court rulings that required a Virginia school district to permit a trans student to use the restroom corresponding to his gender identity. Breyer cast a decisive fifth vote for the stay as a "courtesy" to the four justices who wished to hear the case. I explain in my column that the effort to revive the practice of courtesy fifth votes in death penalty cases is laudable, but that it made little sense in Gloucester County itself. (I wrote the column before Garrett Epps's excellent piece appeared in The Atlantic, offering some similar reasoning.)

Writing the Gloucester County column reminded me of how low the stakes are in day-to-day discussions of the work of the Supreme Court. Whether a justice grants or doesn't grant a fifth courtesy vote is obviously extremely important to the petitioner in a capital case, but thinking about the work of the Court overall, it's obviously less important than, say, whether the death penalty is constitutionally valid at all--the answer to which depends on the Court's personnel.

Thus, I find myself struggling to find anything that happened at the Supreme Court this past term very important, at least relative to what is likely to happen in the next several years, when either a new liberal or new conservative majority is consolidated. Tomorrow, I will be speaking at the 18th annual Practicing Law Institute Supreme Court Review session. I've been doing these just about every year since they started, and as always, it's a great lineup of speakers and topics. Even so--and as I intend to say in the overview panel--while there were some doctrinally significant developments this past Term (especially with respect to abortion and affirmative action), the impossible-to-ignore elephant in the room is the election.

The November election will not only have a very large role in shaping the Court; in the event that Trump wins, it could fundamentally reorder constitutional doctrine. It is not difficult to imagine Trump precipitating a constitutional crisis that would unite the Court against him--in the event, say, that he used his powers to stifle political dissent. It is also possible to imagine Trump defying the Court in one of the ways that earlier presidents flirted with. And, as I argue in my recent paper in the University of Chicago Law Review online, Trump could profoundly affect our constitutional order by replacing it with an anti-egalitarian one or, more likely and more reassuringly, by losing the election and thus catalyzing a backlash that ends up entrenching that egalitarian order. With stakes this high, any single case from the last SCOTUS term seems like small potatoes.


Joe said...

Okay, I'll toss in another comment on the specific "vote."

I agree with the overall sentiment of the essay and basically (like Breyer's comments during an oral argument involving searching a teenage girl) his comment on some level comes off as disrespectful and clueless. You can see RBG thinking, "what a boob" or whatever classy word she would use.

As noted, this is different from the death penalty situation. The appropriate position here to me would be to let the matter develop in the lower courts. The result here is not as Breyer said to simply keep things as they were. The lower court decided to reject a stay of the order. The USSC order changed this & in the process the local school practice regarding trans students was altered as well.

It's early August now. Not sure when school starts in the area (here is starts after Labor Day; in the South, it often starts in August). The result of his "courtesy vote" is a burden on an individual trans student and others who would otherwise benefit from the policy. And, the reference to a different situation comes off as lame.

Jim said...

Well said, Joe. I haven't bothered to read the school district's submission to the Supreme Court in support of its application for a stay, but as Professor Dorf says in his Verdict column, it is truly laughable to assert that the district would suffer "irreparable harm" if it is compelled to comply with the Fourth Circuit's ruling and allow a trans male student to use the boys' bathroom for a few weeks/months while the matter is pending before the Supreme Court. You put it mildly, Joe, by describing Justice Breyer's analogy to the capital punishment context as "lame."

Shag from Brookline said...

This gives new meaning to right-wing "trickle down" theories. When nature calls ....

Lowry said...

This reminds me of first-term Obama, Breyer is extending courtesies that are true compromises with real-world consequences to others when you know he isn't going to get any similar courtesy back in return. He'll look for the same and Alito will shrug at him and say, "We have principles."

This is why I am so glad RBG stayed on the court. (Not to mention, and barely anyone seems to have, how incredibly dire the situation would be right now had she retired.) I don't trust Breyer to fill RBG's shoes. He's turned into Souter instead of into Stevens (maybe that's a little harsh). Despite overall optimism, I'm not looking forward to an era of Kagan, Sotomayor, Ginsburg, Justice Newbie pluralities with a Breyer concurrence in judgment out of some misplaced sense of noblesse oblige. Breyer seems out of touch with the fact that this decision had real consequences for G.G.

CJColucci said...

I'd be interested in a more extensive treatment of the idea that what passes for Con. Law expertise is actually a form of Kremlinology. In other legal fields, experts seem to be able to say useful things about, say, contract law or commercial law, without politically and psychologically profiling individual judges -- or even Justices, when a politically uninteresting non-constitutional issue comes before them.

Joe said...

If law professors were trying to describe let's say a matter of state law, is it really rare for it to turn on swing judges and matters turn on "politically and psychologically profiling individual judges"? Fewer people care, but doubt the same general idea doesn't arise -- on panels of judges, you have swing justices who decide things in a certain ad hoc fashion.