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.