September 23, 2008
My name is Dan Margason and I'm the President of the UW Student Chapter
of the ACS. We're really, really exstrongd to have Professor Chemerinsky
here. For the 1Ls who haven't taken Con Law yet, you will love this
man. He'll get you through it with his book.
One of my friend's outlines was titled "Chemerinsky, I Owe You a Beer," so...
He's definitely the man for Con Law. I just wanted to say really quick
that after this talk, in the cafe, we're going to have some ACS sign-up
sheets. We really want you to come there, get your email down. And
we're not going to ask you for money quite yet.
it's really important that we have membership for this organization so
we can continue talks like this. The ACS is a national organization
promoting a progressive legal system, renewing civil liberties in the
Constitution, and et cetera. There's a lot on the website at ACSLaw.org.
going to introduce Professor Katheryn Watts now, a former clerk to
Supreme Court Justice Stevens, and now one of our best first year
professors in Constitutional Law and also teaches Admin Law, as well,
to the upper class students. So, Professor Watts.
It's my real pleasure to have the opportunity to introduce to you today
Dean Erwin Chemerinsky. I just want to thank all of the students who
worked so hard on behalf of ACS to get him to come and thank Dean
Chemerinsky for making the time in his very busy Seattle visit to make
a stop at the University of Washington.
know you're all here to listen to him, so I just wanted to very
briefly, in a minute or two, summarize some of the many, many
accomplishments in Dean Erwin Chemerinsky's career and life. Dean
Chemerinsky is currently Dean, as many of you have read about in the
papers, at the newly-founded UC Irvine School of Law.
before heading to Irvine, he served on numerous leading faculties
including the faculties at Duke, USC, and DePaul in Chicago. Before
going into academia, he earned his BS at Northwestern, which I have to
plug since it's my alma mater, as well. And he earned his J.D. at Harvard.
an academic, he has established a record as an extremely prolific,
high-profile, and highly-regarded scholar, particularly in the arenas
of Constitutional Law and Federal Courts.
He's authored six
different books in Federal Courts, Constitutional Law, and other areas.
Many of you who are, I notice, in the room who are my 1L students, I
know did live and die by his treatise and thank him and adore him for
that treatise. And students that I had previously at Northwestern for
Fed Courts thank him and adore him for his concise, one volume treatise
on Federal Jurisdiction, as well.
In addition to his six
books, he's also authored more than 100 different law reviews that have
been published in a variety of places including the Northwestern
University Law Review, Harvard Law Review, Stanford Law Review,
Michigan Law Review, and the list goes on and on.
writing all of these books and law review articles doesn't keep him
busy enough, he's also been a very frequent commentator for the
national media and the local media on major issues, such as the O.J.
Simpson trial. And he also somehow manages to find the time to practice
as an extremely serious Appellate lawyer who has argued a number of
cases before the United States Supreme Court and various Federal
When I was clerking for Justice Stevens,
for example, I vividly remember watching him argue a case that was
there in the October 2002 term, Lockyer versus Andrade. It was a case
that involved a challenge to California's "three strikes and you're
out" statute, and it was an Eighth Amendment challenge.
although five Justices of the majority...the five Justice majority
didn't ultimately agree with Dean Chemerinsky's client, my boss,
Justice Stevens, sided with the descent, which would have given Dean
Chemerinsky's client a win.
So these little snippets, I
hope, just give you some of the highlights of his many, many
accomplishments and hope to show you how lucky we are to have a first
rate scholar and a very serious Appellate advocate here talking with us
So with that, let me please thank Dean Chemerinsky for coming and turn it over to him.
Thank you. You are so kind, so kind of you. Thank you. Thank you. Thank
you so much for the incredibly kind introduction. It's really an honor
and a pleasure for me to be with you. Before I talk about my assigned
topic, I do want to do a plug for the American Constitution Society,
especially for those of you who are first year law students who may not
know much about it.
is an organization unlike any other in the United States. It's a place
for the development of progressive legal thought. It's a place to have
law students gather to hear speakers. It also has lawyer networks all
over the country. It's an opportunity to have law students, lawyers,
academics work together to develop a progressive vision, Constitutional
Law, and law work generally. I so strongly encourage you to be involved
here with the Lawyer Chapter and with the National Organization.
was asked to talk with you this afternoon about the Roberts Court and
the future of Constitutional Law. On June 26th, the Supreme Court
finished the third year of the so-called John Roberts Court. The fourth
term will begin in just a couple of weeks. On Monday, October 6th, the
first Monday in October.
Let me make five observations about
where the supreme court is now and where it's likely to go in the
foreseeable future, and then I'll take your questions.
let me talk about the Supreme Court by the numbers. I think, often, the
statistics about the court are quite revealing. For example, last year
the Supreme Court decided 67 cases after briefing an oral argument.
It's one less than the 68 cases they decided the year before. What
makes this striking is that through much of the 20th century, the
Supreme Court was deciding over 200 cases a year. As recently as the
1980s, the Supreme Court was deciding about 160 cases a year. Now, as I
said, it's down to 67.
There are a couple of Federal
District Court judges in the room. My guess is their dockets have not
gone down proportionately during this time.
fact, I don't think we can identify any court in the country that's had
this type of docket reduction. It has enormously important
implications. For all of the areas of law that you study, more major
legal questions go a longer time before being resolved, where splits
and conflicts, where the circuits and the states go a longer time
before being settled.
There's another less frequently noted
implication of the smaller docket. As the number of decisions goes
down, the length of the opinions goes up. I can show you a perfect
inverse correlation as the number of cases per year decreases, the
average length of the opinion as measured by words per opinion and
pages per opinion goes up.
Now, I'm not sure what's cause
and what's effect. Perhaps the Supreme Court is taking fewer cases
because the Justices want to write longer opinions. My own guess is
they're writing longer opinions because they have fewer cases. Last
term there were a number of decisions where the split opinions were
over 150 pages long.
One of the things I have to do every
July is pair a supplement to my Constitutional Law case book. There is
no way to edit 150 page opinion down to an assignment manageable for
law students in one day without making a hash of it.
have a new campaign that I hope you'll join me in. And as law students,
you really have a vested interest in joining this campaign. I think
word and page limits should be imposed on Supreme Court opinions.
other numbers about the Court: Last year there were 14 5:4 or 5:3
decisions. That's less than the 24 5:4 decisions than the year before.
I don't think it's that the Court found more consensus, I just think
there were fewer cases on the docket last year that were defined by
The two Justices who were most often in agreement
last term were Chief Justice John Roberts and Associate Justice Antonin
Scalia. They voted together 88% of the time. The two Justices next most
often in agreement were David Souter and Ruth Bader Ginsburg. The two
justices next most often in agreement were Chief Justice Roberts and
Justice Alito. I think it tells us a lot about the ideology of the two
newest members of the court.
The justice who was most often
in the majority last year, least frequently in dissent, was Chief
Justice John Roberts. He dissented only six times for the entire term.
second observation that I would make about the court is that when it
matters most, it's the Anthony Kennedy court. I know, out of tradition
and deference to the Chief, we call it the John Roberts Court; I just
did. But at least from the perspective of the lawyers who stand before
the justices and write briefs to them, it's really the Anthony Kennedy
I'm terrible at making predictions about things.
Every April, without fail, I predict that the Cubs are going to win the
You laugh. This is the year.
it's very easy when a case comes before the Supreme Court that's
ideologically defined. I can go out on a limb and say, "It's going to
be a five-four decision, and Anthony Kennedy is going to be in the
Think of the three cases last year that I think
are widely regarded as the most important. In each of them, it was a
five-four with Justice Kennedy in the majority.
One of them is "District of Columbia versus Heller." It involved the meaning of the Second Amendment.
Second Amendment is an enigma. You read the text, it says, "A
well-regulated militia, being essential to a free state, the right of
the people to keep and bear arms, shall not be infringed." Gun-rights
advocates want to look to the second half: "The right of the people to
keep and bear arms shall not be infringed." But gun-control advocates
say, "Look at the first half. It emphasizes that this is a right for
purposes of militia service."
The framers' intent is
unclear. Gun-rights advocates say that the right to have guns,
particularly for self-protection, has been safeguarded ever since
English law. Blackstone spoke about it. Every state that had a
constitution--when the United States' constitution was ratified, it had
a state constitutional provision safeguarding the right of individuals
to have guns.
But those who favor gun control point out that
James Madison drafted the Second Amendment--like he drafted all of the
Bill of Rights--and his first draft of the Second Amendment had a
clause that gave an exemption from militia service for those who were
conscientious objectors, suggesting that this was a provision that
really was about militia service.
Each side has an argument
based on history. Those who favor gun rights talk about the tradition
of protecting gun rights, especially through the 19th century. But
gun-control advocates point to the fact that never in American history,
until June 26th of this year, had any law been found to violate the
Second Amendment. Repeatedly, the Supreme Court had taken the position
that the Second Amendment safeguards the right to have guns only for
the purpose of militia service.
I don't know how it came to
be that guns were an issue so defined by ideology, but we all know that
conservatives tend to favor gun rights, liberals tend to favor gun
control, so it's easy to imagine that the Supreme Court was going to
come up five-four and Justice Kennedy would be in the majority. He did,
siding with the conservatives.
Justice Scalia wrote the
opinion for the court, drawn by Chief Justice Roberts, Justice Kennedy,
Justice Thomas, and Justice Alito. And Justice Scalia's opinion restrongd
just the textual intent, historical arguments that gun-rights advocates
always present. Justice Stephens wrote for the four dissenters, and he
presented the other side in a traditional way.
I think the
open issue, after this case--and it's one that many of you are going to
be involved litigating in the initial years of your career--is what
gun-control laws will be upheld and what will be struck down as a
result of this decision.
For those of you who have not yet
had Constitutional Law, when you do you'll come to learn that the
outcome of Constitutional litigation very much depends on what's called
the standard of review, or the level of scrutiny. To put it most
simply, sometimes courts are very deferential to the legislature, even
when individual rights are involved, where there are claims of
discrimination. Sometimes courts give very little deference to the
legislature, and they're quite exacting in their review and scrutiny.
what of these approaches is the Supreme Court going to adopt, or the
federal court's going to adopt, with regard to the Second Amendment?
Justice Scalia's majority opinion doesn't say. His one sentence, where
he says, "Under any standard of review, this law would be struck down."
But that doesn't give guidance to future cases.
Then he said
the Second Amendment is not absolute. He said surely the government can
regulate where people have guns, like prohibiting guns in airports or
guns in schools. He said the government can keep people with a felony
conviction or a history of serious mental illness from having guns. But
otherwise, he leaves that question open.
wrote a dissenting opinion, in which he said, "Regulation of guns
should be allowed, so long as the government is acting reasonably." He
pointed out that 42 states have provisions in their state constitutions
that safeguard a right of individuals to have guns, but in every one of
those 42 states regulation is allowed so long as it's reasonable.
Usually, if it's just a reasonableness test, the government will almost
always win. Is that where the court will go? Or will the court go to
more exacting, say strict scrutiny?
The other issue that's
still open is whether the Second Amendment will be applied to state and
local governments. For those of you who haven't had Constitutional Law,
you might be surprised to know that when the Bill of Rights was adopted
it was thought to apply only to the federal government. It was only
after the adoption of the 14th Amendment in 1868, and really, only in
the 20th century, that the Bill of Rights was applied to the states by
being found to be a part of the liberty safeguarded by the due process
clause of the 14th Amendment. The states can't deprive.
there's still a handful of provisions to the Bill of Rights that have
never been applied to state and local governments. The Second Amendment
is among them.
On June 27th, the day after "District of
Columbia versus Heller" was decided, the National Rifle Association
filed challenges in Chicago and San Francisco to the city gun-control
ordinances, clearly setting up this issue for Supreme Court review.
second of the cases from last term that I regard as most important is a
case called "Boumediene versus Bush." The issue here is whether the
Military Commission Act of 2006 is an unconstitutional suspension of
the writ of habeas corpus. The Military Commission Act says that
non-citizens held as enemy combatants shall not have access to federal
courts, via writ of habeas corpus or otherwise.
They have to
go through a military proceeding. But there's nothing in the law that
requires that there ever be a military proceeding. If there's one, they
could then get review in the United States Court of Appeals for the
District of Columbia Circuit. A review can be only based on
constitutional or statutory claims. They can't bring any claims based
on the Geneva Accords or other treaties.
I should disclose
that I was representing, and still am, one of the petitioners in this
case. I've been representing a Guantanamo detainee by the name of Salim
Ghereby since July of 2002, filed a habeas corpus petition on his
behalf in the summer of 2002.
I will tell you, in this room,
without disclosing any classified information: I have no idea why he is
in Guantanamo. He says he has no idea why he is in Guantanamo. Now, he
may be a very dangerous person who deserves to be locked up. Or he may
be, like we now know most who have been taken to Guantanamo, there just
by mistake. How can we know, though, if there's not some form of due
In a five to four decision, the Supreme Court held
the Military Commission Act to be an unconstitutional suspension of the
Writ of Habeas Corpus. Justice Kennedy wrote the opinion for the Court
joined by Justices Stevens, Souter, Ginsberg, and Breyer. Justice
Kennedy said Article one Section nine says that Congress can suspend
the Writ of Habeas Corpus in case of rebellion or invasion. No one
claims that's going on here. He says the law by its very terms is a
suspension of Habeas Corpus. The substitutes within it aren't adequate,
so the law is unconstitutional.
Justice Scalia wrote a
vehement dissent. He said innocent Americans will die as a result of
this opinion. He said as a result of this decision Federal Courts will
release terrorists via Writs of Habeas Corpus. They'll come back to the
United States and commit acts of terrorism. Justice Kennedy ended his
majority opinion by saying even in a time of crisis, even in the war on
terror the Constitution, the rule of Law, the Writ of Habeas Corpus
must be complied with.
I think that's what's most important
about this case. I think there's no more profoundly significant legal
issue than what is the appropriate role of the Federal Judiciary in the
context of the War on Terror. Justice Scalia on behalf of the dissents
said that this is a matter the Federal Courts should stay out of. That
the Judiciary should leave this to the Executive and the Legislature.
But as Justice Kennedy said, what's the meaning of the limits in the
Constitution if there are no courts there to enforce that. What is left
of the rule of Law if we give it up in a time like now just because
there's a crisis.
The third of the cases from the last term
that I'd mentioned is a case called Kennedy vs. Louisiana. The issue in
this case is whether or not the death penalty for the crime of child
rape is cruel and unusual punishment. Consistent with the theme I'm
pointing you to, it was a five, four decision. Justice Kennedy writing
the opinion for the court joined by Justices Stevens, Souter, Ginsberg,
and Breyer. The Supreme Court held that the death penalty is
Constitutionally to be used only for the intentional taking of the life
Justice Kennedy pointed out that there are 36
states that have the death penalty. Only six of them allow the death
penalty for the crime of child rape. He said Federal Law does not allow
the death penalty for the crime of child rape. He said no one has been
executed in this country for over 30 years for that crime. He said to
determine what's cruel and unusual punishment a court has to look
toward evolving standards of decency. He said all of this is evidence
that evolving standards of decency make the death penalty for child
rape cruel and unusual punishment.
Now one thing that's
interesting about Justice Kennedy's opinion is he made a mistake. No
one denies here that he made a mistake. He said that Federal Law does
not provide for the death penalty for child rape when in fact a few
years ago Congress amended Military Law to provide the death penalty
for child rape for those who are in Military service. So at the end of
July the state of Louisiana filed a petition for rehearing in the
Supreme Court because there was an error.
I think this is a
really interesting question: What does the Supreme Court do when it
makes a mistake like this? Federal Courts of Appeals, State Courts
often issue just revised opinions. I've never seen the Supreme Court
issue a revised opinion.
About 10 days ago the Supreme Court
asked for briefing on the error that was raised in the Louisiana
petition for rehearing. I can't imagine that this will cause the
Supreme Court to change its mind. I don't think the five Justices of
the majority based their decision on what Federal Law had, but it is an
interesting procedural wrinkle to be on the look-out for. How does the
Supreme Court correct a factual error like this?
At the very
least, as I said, I think this insight that it's the Anthony, Kennedy
court matters so much for the lawyers who stand before the Justices and
write briefs to them. I wrote a brief last term in the second amendment
case. I'll tell you, my brief was a shameless attempt to pander to
If I could have put
Justice Kennedy's picture on the front of my brief, I would have done
so. My brief was not unique among those in this case. This case is not
unique among those on the docket. As long as these are the nine
Justices, it is the Anthony, Kennedy court.
There's an easy
explanation for this. John Roberts and Samuel Alito have been
everything that Conservatives could have hoped for and Liberals could
have feared. Almost without exception in their three years on the
court, they have always voted together with Justices Scalia and Thomas
in ideologically defined cases. Usually equally predictable is the
block of Justices Stevens, Souter, Ginsberg, and Breyer on the other
side leaving Anthony Kennedy as the swing Justice.
observation that I would offer to you is that this is the most
pro-business Supreme Court since the mid-1930's. I know that we
commonly talk about the Court in Liberal, Conservative terms. I've done
so; but I do think in understanding this court, in getting past the
headlines, it's important to see it as a very pro-business Court.
me give you a couple of examples of this, though I could give you many.
What is an area of Law that might seem technical, but it's really not.
It's about when is State and Local Law preempted by Federal Law. Now
one would think that a Conservative court committed to States rights
would want to limit the situation in which State and Local regulation
is preempted by Federal Law. The narrower the scope of preemption, the
more governance that's allowed to State and Local governments.
did you know that literally every preemption case to come before the
Roberts Court in its three years in existence the Supreme Court has
found preemption, Almost all of it involved business challenges to
State and Local regulations. Let me give you an example, tell you about
a case that's on the docket this term, and tell you what I think is
going on here.
The example I've mentioned is a case from
last February called Regal vs. Medtronic. Here's the issue: If the Food
and Drug Administration approves a medical device does that then
preclude State Court claims about it? The case involved a balloon
catheter that's used in angioplasty proceedings. It was used on a
particular person, and it exploded in his body and caused great harm.
He ultimately died as a result, and a law suit was brought. The
question is: Is the manufacturer protected from any Tort Liability
because the FDA approved the device?
Now there's a provision
in the Medical Devices Act that says that States cannot impose
requirements inconsistent with Federal Law. That's the literal word in
the Law, "requirements." Does this preclude State Liability? The
Supreme Court eight to one said yes. Justice Scalia wrote for the
Court. He said liability can often have the same effects as regulation,
changing behavior. So therefore liability is in essence something
that's imposing additional requirements, those not doing so explicitly.
Therefore a preclusion, a preemption of requirements also preempts
Justice Ginsberg wrote the dissent. She said
where Congress wants to preempt liability, it knows how to do so. There
are many Federal Laws that expressly say there cannot be State Tort
Liability or other forms of liability. Pretty clear, isn't it? She said
Congress didn't do that here, so there's supposed to be a presumption
against preemption. It didn't exist.
I'll give you another
example from last term, a case that got no media attention at all. A
case called California Chamber of Commerce versus Brown.
a provision of California law that says that if an entity, like a
business, gets more than $10, 000 of state money it can't use that
money to engage in anti-union organizing activity. The business can
still use its own money to discourage workers from unionizing. But it
can't use its state money. Is that preempted by federal law? There's no
provision in any federal law speaking of preemption.
Supreme Court, seven to two decision, found preemption. Justice Stevens
wrote for the court. He said, "The whole scheme of federal labor law
indicates that Congress meant to leave employers like employees free to
speak about union organizing. Therefore, the field is occupied by
Federal Law - there's preemption."
But Justice Briar said in
dissent "All that this law does is keep businesses from using state
money to engage in anti-union organize activity. Shouldn't the state be
able to decide how its own dollars are being spent?"
case to be on the look out this term is a case called Wyeth Labs versus
Lavine. And it may not get the headlines as some of the other cases
that I will mention in a moment. But it maybe one of the most important
case on the docket right now.
The issue here is if the FDA
approves the warning label on a prescription drug, does that preempt
state to a liability? The particular case involves a drug that is used
to treat sever migraines. It was administered to a woman through an IV
pump. Turns out it's very dangerous to administer the drug in that way.
The woman ultimately lost her arm as a result. There is a warning label
on the drug, approved by the FDA, but it doesn't mention this, even
though the drug company apparently knew it should not be administered
in that way.
Can the drug company be sued? Or is the fact
that the FDA approved the warning label preemptive the liability. Most
litigation about pharmaceuticals, like Vioxx, has been this "failure to
warn basis". Whether such losses go forward, whether injured patients
and consumers going to recover will depend upon where the Supreme Court
Here's what I think is going on. The
conservatives on the Roberts Court are very pro-business. The more
liberals Justices on the Roberts court tend to favor broad federal
power. They come together in coalitions often by lopsided margins, to
I will give you another illustration of
what a pro-business court this is, and that's in the area of punitive
damages. In the last two years there are major cases imposing limits on
punitive damages. Two years ago there was a case called Philips Morris
The widow of a heavy smoker sued a tobacco
company for fraud and marketing cigarettes. A jury awarded $80 million
in punitive damages, which were 90 times the size of the compensatory
The Supreme Court in a five to four decision
reversed. The justices were not defined by ideology. Justice Briar
wrote the opinion for the court. His opinion was joined by Chief
Justice Roberts, Justice Alito, Justice Souter and Justice Kennedy. But
to put it another way, the four dissenting Justices were Stevens,
Scalia, Thomas and Ginsburg. You don't find that split very often on
the Roberts Court. [laughter]
Justice Briar said that, "a
jury can use punitive damages only to punish the defendant for the harm
suffered by that plaintiff. Punitive damages can't be used to punish a
defendant for harm suffered by third parties". But where does that come
from? You often hear conservatives rallying against the Supreme Court
making up constitutional rules. Throughout American history there had
never been such a rule announced by the Supreme Court.
to make it even more incoherent and much less clear, three paragraphs
later Justice Briar said, "When a Jury considers the reprehensibility
of the defendants conduct, the most important fact of determining
punitive damages, a jury can consider harm to third parties.
I have no idea how you instruct your juries after this test. [laughter]
You can repeat Justice Briar's words. You can say to them, "Only punish
the defendant for the harm suffered by the plaintiff, not by third
parties. But in accessing reprehensibility consider harm to third
parties." But if I was a jury, can I say "I don't understand. Can we or
can't we consider harm to third parties?"
The Supreme Court
sent the case back to the Oregon Supreme Court. It reinstated and
affirmed the punitive damage award. The Supreme Court granted review
again. It will be argued this coming term.
One more example
with regard to punitive damage is, to show that this is a really
pro-business court, a case came down in June - it was Exxon Shipping
versus Baker. This is a case that arose from the tragic Exxon Valdez
oil spill. There was a lawsuit brought by people who lost their
businesses, their property, their livelihood. The jury awarded $507
million in compensatory damages and $5 billion in punitive damages.
1996, when the Supreme Court first imposed a limit on punitive damages
based on due process, in BMW versus Gore, the Ninth Circuit reversed
the punitive damage order and sent it back to the District Court. The
District Court then created a new punitive damage award, went back to
the Ninth Circuit. And then after the Supreme Court decided State Farm
versus Camblin in 2003, the Ninth Circuit sent it back to the District
Court, went back to the Ninth Circuit a third time and the Ninth
Circuit said the punitive damage award could be $2.5 billion.
Supreme Court in a five to three decision reversed. Justice Souter
wrote for the court. Justices Stevens, Ginsburg and Briar dissented.
Souter wrote for the court. Justice Alito did not participate.
Souter writing for the court said that "the holding is that in
admiralty maritime law, punitive damages have to have a one-to-one
relationship with compensatory damages. They have to be the same size
as compensatory damages." But his reasoning had nothing to do with
admiralty maritime law at all.
He said, "Juries have too
much discretion in setting the amount of punitive damages." He likened
the desertion that Federal District Court Justices had in imposing
criminal penalties before time of the sentencing guidelines. He said,
"The only effective way to limit jury discretion is to have a
one-to-one relationship to the compensatory punitive damages."
unlike Philip Morris versus Williams, this wasn't based on the
constitution. But like Philip Morris versus Williams, where did this
one-to-one relationship come from.
Now, the court, as I
said, was only speaking about admiralty and maritime law. But there is
no doubt that judges throughout the country are considering whether
this applies across the entire range of litigation.
Wednesday, I was in Cincinnati, and argued a discrimination case in the
Sixth Circuit. I was representing somebody who was a victim of age
discrimination and other forms of discrimination. The jury awarded him
compensatory damages and awarded him punitive damages. The punitive
damages were in a 1.67 relationship to the compensatory damages, so,
very close to one-to-one.
And yet the hardest questions that
I got from the court was "Well, in light of Exxon Shipping versus
Baker, shouldn't we have to reduce this to a one-to-one relationship -
why not a one-to-one relationship?" And as I say Exxon had nothing to
do with the constitution. But it's sent a message to the lower courts
and made a widespread affect.
These are examples - I can
give you many other illustrations. But what they show is, I think, the
most pro-business court we've had since the mid 1930's.
observation that I would make about the court is tell you a little bit
about what's on the docket for this term to be on the look up. Usually
the court sets by half of the docket before they adjourn in June, and
then fill rest of the docket between the end of September and the
beginning of January.
There are some really important, very
interesting cases on the docket this term. The case that's going to get
the most media attention is called Federal Communication Commission vs.
Fox Broadcasting. There a couple of instances where performers at award
shows used expletives. One involved Cher, one involved Nicole Richie,
one involved Bono. They all used the so-called f-word.
the last time the Supreme Court dealt with this was in a case called
FCC vs. Pacifica in 1976. It involved a radio station in New York that
broadcast the George Carlin monologue on the seven dirty word.
always tell my students they don't have to memorize the list of the
seven dirty words for the final exam. They'll often be the first words
that come to mind anyway when they see my exam questions.
Supreme Court ruled that a radio station could be punished for the
broadcast of the seven dirty words. The FCC, following this, had a
policy that a fleeting use of an expletive, used as an adjective, say,
was protected, that it wouldn't be punished. But then, in 2004 the
Federal Communications Commission changed its position. It said that
any use of the f-word is inherently sexual, it's inherently a verbal
assault, and that therefore it can be punished.
A lot has
changed since 1976. Probably social attitudes towards profanity have
changed over the last 30 years. But the media has changed. It used to
make sense to have a medium by medium approach, where there would be
one set of rules for telephones, and another for television, and
another for cable, and another for the Internet.
moved into a new house at the end of June. We get all of those services
from one provider through one cable. Does the medium by medium approach
really make any sense? Now, there's also an issue here of whether the
Federal Communications Commission justified changing its 30 year-old
Another case that's docketed that involves the First
Amendment is called Pleasant Grove vs Summum. There's a city in Utah
that has a 10 Commandments monument. Another religion said, "Well, we
want to come and put up a monument with our religious precepts there.
If the city can put up its, we can put up ours." Now, there had been a
lot of cases in the Supreme Court and lower courts, but when can the
government put religious symbols on government property?
argued one of those cases in the Supreme Court. In 2005 I argued a case
called Van Orden v. Perry that involved six foot-high, three foot-wide
Ten Commandments monument that sits directly at the corner between the
Texas Supreme Court and the Texas State Capitol.
is different, though, because this is an instance that raises the
question, once the government chooses to put a religious symbol there,
then do others have the right to put their religious symbols in the
same place as well?
For those of you who have taken evidence
or criminal procedure, probably the most important decision in recent
years is a case called Crawford v. Washington in 2004. It used to be
that a prosecutor could use statements against a criminal defendant if
the witness was unavailable, so long as the statements were reliable.
Crawford changed that. Crawford said that if the statements are
testimonial, they can't be used against a criminal defendant, even if
There's a case before the Supreme Court
this term that's called Melendez-Diaz v. Massachusetts. It asks the
question does Crawford apply to laboratory reports? Every time a
prosecutor wants to use lab reports, do they have to bring in the
person who did the study and compiled the report?
Supreme Court in Crawford and the cases since has wanted to talk about
how the Sixth Amendment means the same thing today as it did in 1791. I
want to see how that applies to the question of lab reports.
the criminal procedure there is also another interesting issue. The
Supreme Court has long held that if the police order somebody out of a
car and get the occupants out of the car, the police can then do a
search of the car. It's a case called New York v. Dalton.
does that make sense if it's a situation where by the time the police
get to the person, they're already out of the car? That was based on
the idea of concern for the officer's safety if somebody could just
reach into the car to get a weapon. If the people are already out of
the car, should the police still be able to do a search of the car that
leads to an arrest? That's in a case called Arizona v. Gant.
important issue that's before the Supreme Court is whether Congress had
the power to re-extend the Voting Rights Act. Some did a couple of
years ago. The Voting Rights Act is a key statute with regard to voting
equality in the United States.
Those are just a few of the
things to be on the lookout for this term, but there are many more
cases yet to come as the Supreme Court fills up the docket for October
The fifth and final observation--then I'd be
thrilled to take your questions--concerns what's the November election
likely to be for the future of the Supreme Court. My conclusion is that
this election is likely to determine whether the Supreme Court becomes
more conservative in the short term or whether it stays ideologically
about what it is now.
It is very unlikely that this election
will cause the Supreme Court to become more liberal in the short term.
Why do I say that? Think about where the vacancies are likely to come
on the Supreme Court between January 20th, 2009 and January 20th, 2013.
Paul Stevens turned 88 years old on April 21st of this year. He's in
good health, but it doesn't seem that likely that he'll still be on the
court in 2013 at age 93. Ruth Bader Ginsburg turned 75 this year. She's
in good health. Perhaps because she's frail in appearance there's
always rumor that she's going to step down. There is a widely
circulated rumor that David Souter wants to retire and go home to New
Now think of the other side of the ideological
island. John Roberts turned 54 in January of this year. If he remains
Chief Justice until he's 88, he'll be Chief Justice until the year
2042. That means for most of your legal career, and all of mine, John
Roberts is going to be Chief Justice of the United States.
Clarence Thomas nor Samuel Alito has yet to celebrate a 60th birthday.
Anthony Scalia and Anthony Kennedy have both turned 72 this year. I
think the best predictor of a long lifespan is being confirmed for a
seat on the United States Supreme Court.
not likely that any of these five justices will be leaving the bench
during the next presidential term, and probably not in the next 10
years or so. So, if it is a President McCain who gets to replace, say,
Justice Stevens, or Justice Ginsburg, or Justice Souter, he should do
with more conservative individuals.
You heard his interview
with Rick Warren. He said he wants to appoint justices like John
Roberts and Samuel Alito. If he does so, no longer will Anthony Kennedy
be the swing vote on the Supreme Court.
On the other hand,
if it's a President Barack Obama, and he gets to replace Justice
Stevens, or Justice Ginsburg, or Justice Souter, he's likely to do so
with individuals of about the same ideology.
That's why I
say that the court is not likely to become more liberal in the short
term. In this way, the November 2008 election is very different from
the November 2004 election. Can you imagine if John Kerry had replaced
William Rehnquist and Sandra Day O'Connor? The court would be very
different now. Almost the 5-4 decisions in the last few years would
have come out the other way.
But this election, I think,
it's going to either mean a court that's significantly more
conservatives or about where it is now. I guess the bottom line, then,
when you think about the Supreme Court now and for the foreseeable
future is that if you're politically conservative, this a court to
rejoice over. And if you're politically liberal, you should be glad the
court is deciding only about 67 cases a year.
And I'm glad to take your questions.
According to [inaudible 43:31:16] are we seeing the demise of the
facial challenge question in a range [inaudible 43:35:09]?
The question is, "Are we witnessing the demise of the facial challenge?"
those of you have not yet had constitutional law, to over-generalize: A
court can declare a law unconstitutional as applied in a particular
This means that the law remains on the books. It can be used in other cases, but it cannot be applied in that way.
a court can say, "The law is facially unconstitutional." That means
that is never going to be capable of constitutional application. It is
going to be struck down.
There are advantages of facial
invalidation. It means that an unconstitutional law is off the books
and it is not going to chill behavior that is safeguarded by the
Constitution. There is also a disadvantage, that perhaps a law that has
constitutional application is removed. And maybe it is better to go
just as applied.
The Roberts' Court has shown that it is
very hostile to the idea of facial challenges. It very much prefers "as
You mentioned examples. I can give
others from last term. There is a case called Crawford v. Marion
County. The issue is whether or not the Indiana law requiring photo
identification for voting violated the Constitution.
Indiana legislature adopted this requirement exactly along party lines.
Every Republican in the Indiana legislature voted for it. Every
Democrat in the Indiana legislature voted against it. The reason is
that there is a dispute that will hurt Democratic voters and especially
voters of color more that Republican voters.
brought a challenge the day after it was adopted, so it was a facial
challenge. There was virtually no evidence of a voter fraud problem in
the state that this would solve. As Justice Souter pointed out in his
dissent, Indiana could identify only two examples of fraud that might
be related to this, and one was from the 19th century.
On the other hand, nor was there evidence that this kept people from voting. The law had not been put into effect yet.
Supreme Court, six to three, upheld the statute without a majority
opinion. Justice Stevens wrote an opinion, joined by Justice Kennedy
and Chief Justice Roberts. Justice Stevens emphasized that this was a
facial challenge. There was no evidence here that people were kept from
being able to vote by it.
You might know that a couple of
weeks after this decision came down that Indiana held its presidential
primary. There were some well publicized instances of 80 year old nuns
being turned away from the polls because they did not have photo ID.
Now there can be an "as applied" challenge. But that would be an
example of it.
Two years ago, the Supreme Court dealt with
the issue of abortion with regards to a federal statute called the
"Federal Partial Birth Abortion Act." It was a case that was called
Gonzales v. Carhart. In 2000, the Supreme Court had struck down a
Nebraska law that prohibited so-called partial birth abortion, saying
that the law had to have a health exception for the woman.
federal law has no health exception. The Supreme Court, five to four,
upheld the law. Justice Kennedy writing for the Court, and joined by
Chief Justice Robert and Justices Scalia, Thomas and Alito, said that
the law was facially constitutional, but it might be challenged as
Think about what this means. It would mean that a
woman who is probably nearing viability and who needs this procedure
would have to argue that it is unconstitutional as applied to her. Just
imagine how that litigation would realistically go forward. But that is
what the Supreme Court said. It has to be as applied.
not want to go as far as your question. I am not going to say that
there is never going to be a law declared facially unconstitutional.
Finding a law to be unconstitutionally vague, for example, is a facial
But clearly, this is a court that prefers as applied challenges to facial challenges.
Yes. Let's say that John McCain is elected president. If John McCain
died and Sarah Palin became president, who would break ties in the
Senate? The other question is, do you think John McCain is an American
As to the first question, you might know that the Constitution was
amended to provide that when there is a vacancy in the vice-presidency
that the president gets to nominate a new vice president who is
confirmed then by the House and the Senate.
have had that procedure used one time or actually two times. You might
remember that when Spiro Agnew resigned as vice president because of
his involvement in a scandal in Maryland, President Nixon appointed
Gerald Ford, who was the Speaker of the House of Representatives...
Rather the minority leader of the House of Representatives at that
time... to become the new Vice President. The House and the Senate
Then, when Richard Nixon resigned, Gerald
Ford became president. He nominated Nelson Rockefeller to be vice
president. So, that would be the procedure. We have under the
Constitution, a mechanism for filling the vacancy.
I think John McCain is a citizen. His parents were American citizens.
His father was in Panama, his parents were in Panama, at the time that
he was born. So he was born in Panama. But I believe that a person who
is born to American parents and the American parents are serving for
the military is an American citizen.
I used, as a question,
in my Federal Courts exam this past spring, "Who would have standing to
bring such a challenge?" It is an interesting question. Would anyone
have the standing to bring such the suit?
Regarding the last question...
The Supreme Court in the Stoneridge case last year definitely made the
ability to bring fraud for securities violations. Do you think that the
current financial meltdown might bring some political pressure on the
Court and review these sorts of things?
When I was talking about this being a very pro-business court, one
example that I could have used is the Stoneridge investors for the
Scientific-Atlanta case that you mentioned.
Transcription by CastingWords
is not a constitutional case. It is about the ability to sue under
securities law. What was involved here was a cable company, Charter
Communications. [It] was not doing so well financially. It wanted to
make its books look better to attract investment.
So it came
up with a fraudulent scheme. It would pay the companies it was
purchasing cable boxes from twice as much as they were worth, with the
understanding that those cable box companies, like Motorola would then
buy ads on Charter Communications' stations. So, it would then be able
to show inflated ad revenue.
It did this. Ultimately the
fraudulent scheme was learned, and the investors wanted to sue the
cable company's [vendors], like Motorola, that were part of the scheme.
Supreme Court ruled five to three, split along ideological lines, that
the investors were not able to sue the vendors, like Motorola. It fits
what I said, though. Justice Kennedy wrote the opinion for the Court,
joined by Chief Justice Roberts, Justice Scalia, Justice Thomas and
Justice Alito. Justice Breyer did not participate, which is why it was
a five to three decision.
[This was] an enormous victory for
business. Do I think that this will cause the Supreme Court to
reconsider the Stoneridge case? No.
I do think, though, that
the proposed bailout legislation, if it goes into effect in its current
form, is going to raise fascinating constitutional issues. I have never
believed that there is much ability to challenge Federal laws on the
grounds that they are an access of delegation of legislative power.
used to be a doctrine that Congress could not delegate its legislative
power. But the Supreme Court, since 1936, has not struck down any laws
in access of delegation of legislative power.
At least based
on the three page proposal, this seems to be an enormous delegation of
the spending power. Congress is basically saying to the Secretary of
Treasury, "Go spend 700 billion dollars."
The other issue,
if you look at the proposal, is a preclusion of judicial review. There
cannot be federal court review of what the Secretary of the Treasury
does. That raises profound constitutional issues. What if the Secretary
of the Treasury is led to violate the Constitution or the law is
unconstitutional? How can there not be judicial review?
I do think that there will be constitutional issues out of the bailout
legislation. I do not see the Court reconsidering Stoneridge. To me,
Stoneridge reinforced what I was saying [about] what a pro-business
Court this is.
Thank you again for having me.
[end of audio.