>> From the Library of Congress in Washington, D.C.
[ Silence ]   >> Yes, good afternoon.
Welcome to the Library of Congress.
I'm so delighted to see so many of you here today and join in with us
at the Law Library of Congress as we celebrate Constitution Day.
First off I want to thank the friends
of the Law Library of Congress.
They are a separate entity and they are a very big supporter
of the Law Library of Congress
and without their generous support this program would not be possible
today so thank you to the friends.
So we're here to celebrate Constitution Day.
Congress established Constitution Day in 2004 as a Federal Holiday
to recognize the ratification of the U.S. Constitution in 1787.
The legislation in 2004 was introduced
by the late West Virginia Senator Robert Byrd and it expanded
on the celebration of citizenship day,
which was previously created during the Truman administration,
to recognize those who had become U.S. citizens during the
previous year.
But in combing these two events, observances, the benefit is
that we can now celebrate all who become citizens
under the constitution and the constitution itself.
Now the law in 2004 mandated
that all publicly funded educational institutions provide programming
on the history of the American Constitution as a way
to commemorate this great event in our nation's history.
The Law Library of Congress, as a unique legal institution
that not only serves as Congress's primary source of U.S., foreign,
comparative and international legal research,
but also provides resources and services to the national
and global legal community.
So we are therefore very, very honored to be able
to celebrate the constitution in this way.
And this year we're particularly excited
because we have Dahlia Lithwick who's joining us again.
Some of you may remember that she joined us last year and she has
such a terrific program that we invited her to come back this year
and we are very delighted that she flew all the way
from Israel to come and do this.
She is spending a year, a book year, a book leave, I guess it's called,
from Slate Magazine, to spend time in Israel to work
on her forthcoming book, which we hope
to celebrate next year, pressures on.
[laughter] And so we're very, very delighted
that she's able to be here with us.
Last year you'll remember she talked about interesting things
such as television cameras in the courtroom
and public access to the court.
Today she plans to tell us about some
of the U.S. Supreme Courts noteworthy decisions
from this most previous term.
She will talk to us about some of those cases
that have occurred this past year.
She will talk to us about what she expects to see this coming year.
So this promises to be a very exciting program.
So let me tell you a little bit about Dahlia
but I'm sure she needs no introduction.
She is the Senior Editor and Legal Correspondent at Slate.
She writes the Supreme Court dispatches
and jurisprudence columns for that magazine.
Her work has also appeared
in many other publications including The New Republic, The New York Times
and the Washington Post and she's frequently a commentator
on National Public Radio's Newsmagazine, Day to Day.
Back in 2001, Dahlia received the online News Association awards
for online commentary for a series she coauthored on torture
and she was the first online journalist to serve
on the steering committee for the reporters committee
for Freedom of the Press.
As I've mentioned earlier, she's spending this year in Israel working
on a book and I believe that book is going to be
about women Supreme Court Justices or,
I'll let you tell them what it's all about and make sure I got that right
and we look forward to hearing more about the Supreme Court
and everything else that she's doing so if you'll join me
in welcoming Dahlia Lithwick?   Thank you.
[ Applause ]   [noise]
>> Dahlia Lithwick: Well thank you so much to David, to Robert,
to Clifford, to all the good folks here
who brought me back after last year.
I should, just by way of disclosure, tell you that all of those of us
who lived through the past year with the healthcare hearings
at the Supreme Court, are suffering from some mild form of PTSD.
I mean we've all lost basic social skills and you know
if you make us sit down for five straight hours and talk
about the Congress Clause, we weep.
[laughter] So we're all broken, as a class, the Supreme Court press corp.
But I'm going to try to rally and talk to you today.
I've been tasked with the job of telling you a little bit
about last term, the upcoming term, the court itself,
and maybe some lofty thoughts about the constitution and the importance
of Constitution Day to boot.
And I want to just start my remarks by saying
that it's really worth thinking about the fact
that if we had been talking here three, four, five years ago,
we might not have such an animated discussion about the constitution.
The one really remarkable thing that we have seen emerge
in the last four, five, six years,
is an absolutely reinvigorated national conversation
about what the constitution means, what states rights are,
the balance between the federal and state authority
to make determinations about our lives, fundamental questions
that really map beautifully onto my topic today
which is you know how is it that the constitution relevant
and how is the court thinking about those things?
And so I really want to say that even though,
regardless of which team you were hoping for in the healthcare cases,
even though it may look as though the other side, whoever they may be,
have kind of weaponized the constitution of late,
the truth is the fact that we're all fighting and grappling
and struggling with constitutional questions
and we're not just doing it in the court, we're doing it
on the airwaves and on the blogs
and when the guy is parking our car at the restaurant.
So I think it's really worth stopping and realizing
that no matter how frustrating and maddening the national conversation
about the constitution is we are having it and that in
and of itself I think is important.
So I want to just start by telling you a little bit
about the Supreme Courts cases from last year.
And they include you know a conversation
about fleeting expletives.
Fleeting expletives is a nice way of saying that if
on a television awards show, Nicole Richie say, blurts out a swear word
and it doesn't get beeped out in time, does the network have to pay.
Fleeting expletives have, for reasons that are not entirely clear
to me as a doctrinal matter, has also come to sweep in brief flashes
of human buttocks that some helped make it onto television shows
as well so the court had to look at the policies surrounding those.
The court very famously addressed itself
to GPS devices this past term, trying to determine
if a GPS device put on a suspected drug dealer's car
that stays there long after the warrant had expired
and he obviously didn't know,
if that violates his fourth amendment right to privacy.
The constitution still matters so much in cases like that.
In cases involving Arizona's attempts
to frame its own immigration laws,
in a sense that the federal government wasn't doing the job
correctly and so Arizona was going to kind of tilt the balance
between federal and state powers and the court addresses this question.
And again famously the federal government's effort
to create a national solution to the healthcare problem,
again this touches on and inflects
into so many important constitutional questions.
So the constitution is alive and well and even
when you thought you weren't debating about the constitution,
if you were debating those issues, you in fact were.
So at the center of all this, of course, is the U.S. Supreme Court,
which is, as we all know, completely unaccountable, completely unbothered
by polls, by protests, by numbers that they see in the New York Times,
unaffected by the lines of people standing outside the courts
with signs and hats and horns and bullhorns.
The Supreme Court is institutionally created to not care what we think.
The Supreme Court that is utterly inscrutable and unknowable to us.
We get opinions at the end of the term but we won't know for decades,
not until the justice's papers are released, what really happened.
We won't know how those conversations went in conference
when the justices had to make decisions.
And so what we know really is the end product but not the process,
not the arguments, not anything about the real meat of what happened
in negotiating those opinions.
And the Supreme Court, which is really in a profound way
and a mysterious way, completely unknown and unknowable to us,
and I don't just mean unknowable in the sense
that Sandra Day O'Connor says
when she says more people can name the judges on Dancing with the Stars
than can name one justice on the Supreme Court.
[laughter] I mean the fact that we know nothing
about the court is certainly problematic
but I just mean we don't know who these people are.
We don't know them as individuals.   They're very unreadable.
We see them in black robes,
deliberately mystified in a white temple.
We can't get in with our cameras.
We can't get in with our tape recorders.
You can stand in line for four days before the healthcare cases,
as people did, and not get into the building.
And so the Supreme Court really is in an age and era with no mystery.
When people are blogging their pedicures,
the Supreme Court is the last mystery left in America
and I think a lot of us have problems with that.
And what I want to tell you is that I think it's easy, too easy,
to tell a familiar story based
on what I've just said about the Supreme Court.
They're inscrutable.   They're unknown and unknowable.
And the story we like to tell, and I know we like to tell it because we
in the press deliver it twice a day to our editors,
is that the court is an assemblage
of nine political actors divided right and left.
They are essentially what their votes were in Bush versus Gore.
They are essentially what their votes were in Citizens United,
the campaign finance case, that it is a court that is polarized
between four liberal justices and four conservative justices and in
which Anthony Kennedy reigns as king, the swing voter at the middle
that nobody knows what he's going to do and we love to tell that story.
You may remember the cover
of Time Magazine the week before the healthcare decisions came out was
about Anthony Kennedy and inside the mind of Anthony Kennedy
because we all thought he was going
to be the determinative vote in that case.
And I think we tend to think that about every case.
I like to joke that Supreme Court reporters walk
around with little bracelets that say WWKD, what would Kennedy do?
[laughter] Because that is all we talk and think about
and that's an easy story to tell about the court.
And the last easy, easy narrative to tell about the court is
that they're simply elite and they're out of touch and they're old
and they don't know who we are and they don't care.
And those are the stories we tell and those are the stories
that get printed and published.
And I want to stipulate for a minute that all that is true.
[laughter] But in fact this is a sharply,
sharply polarized Supreme Court and in fact with the loss
of David Souter and John Paul Stevens, we now have a court
that for the first time in decades has every member voting the way the
president who appointed them would have had them vote.
In other words we have five conservatives who were appointed
by Republicans and four liberals who were appointed
by Democrats and that is a tragedy.
It's a really sad thing to happen to the court because it means it's
so easy, so easy to tell that story about a five four court
that is liberal and conservative.
It is also dramatically, dramatically polarized right now
and I would be lying if I said the healthcare hearings
and the healthcare opinion weren't extremely, extremely underpinned
with ideology and politics and not just law.
And I think it's also fair to say
that the court is quite aloof and quite out of touch.
You know I think now more than ever it is fair to say
that the justices come from two schools, two law schools.
Their clerks come from about eight law schools.
Many of them really are proud of the fact
that they don't read newspapers.
So the justices are as cloistered as they have been
and not just cloistered but I think also really
in a slightly adversarial position with the country
in a way we haven't seen before and I want
to talk about that in a minute.   But what I want to tell you is
that even though everything I just said is true
and that every easy narrative
about the court is true, it's also not true.
It's not the whole story about the court.
And in part because it's Constitution Day and in part
in the spirit of Wallace Steven's poem, Thirteen Ways of Looking
at a Blackbird, I want to offer you five other ways of looking
at the U.S. Supreme Court, five other narratives
that I would ask you to try out as you think
about the court this coming term.
So first and foremost I want to suggest to you
that one story you can tell yourself
about the court is that it's a court.
That it is in fact different from the political branches,
that it is in fact unelected.   That the justices serve for life.
That they don't answer to us
because by design they are not supposed to answer to us.
And that they are insulated because by design they are meant
to be insulated and that doesn't make them a political branch
that is not functioning properly, that makes them a court.
And we forget that sometimes when we tell the story of the court.
And so those that like to tell the story about oh,
this is a purely citizens united, Bush V. Gore, five four punch
and Judy show, when they tell that story what they have
to do is ignore the fact that for many, many years now most
of the courts cases are decided nine zero or eight one or seven to two.
So you cannot in fact say oh, this is a five four court.
Everything is decided along political lines
because most of the cases are not.
Last term, in fact, 44% of the cases the court handed
down were decided unanimously.
That's an enormous number for a court that we want
to call a partisan, political institution.
Now you're going to say Dahlia, wait,
only the small cases are decided unanimously or eight to one
but in fact that's not true either
because of course the healthcare cases were decided either seven
to two or five four, depending on what part you were looking at.
The immigration, the Arizona immigration case,
the papers case was decided six three.
The GPS case I told you about was decided nine zero.
The case involving whether churches could have a ministerial exemption,
a religious exemption to the civil rights laws, also decided nine zero.
And the Texas redistricting case about the Texas redistricting maps
and the constitutionality of those maps also decided nine zero.
So these aren't the sort of boring little fishing cases.
These are major, major cases that move the needle in important areas
of law and all of them are decided by margins
that don't fit the five four story we like to tell ourselves.
And the other thing I would say on this five four,
it's just a Bush V. Gore court story,
is that this court has actually been quite minimalist.
They have tried very hard to follow the Alexander Bickel rule
to do as little as possible.
And so in many of the cases I've just described to you,
including the fleeting expletives case, the FCC indecency case,
including the GPS case, including the Texas redistricting case,
they have done as little as they possibly could to resolve the issue.
And so it's very, very easy to say oh, this is a court that just wants
to belly up to the bar and be in the middle of every national controversy
and then decides everything on the same margin every time.
It's simply not true.
And what I want to suggest to you is that it's the court,
first and foremost because of Chief Justice John Roberts vote
in the healthcare decision, because whatever you think of the merits
of that decision, it is clear to me that the Chief Justice decided
to put the institution first and to put the integrity
of the institution first, to take it out of the story about the election,
which is the way we would have talked about the healthcare case,
and to really undermine the idea
that the court just simply is a vending machine
that pops our five four decisions day
after day the way they would pop out a snickers bar.
And even the leak that happened at the court,
and I'm sure you all know the story that immediately
after the healthcare decisions came
down there was a truly unprecedented leak where rumors
about how the negotiations played out were released to the press
and we were told that the Chief Justice changed his vote
at the very last minute, I want to suggest to you that even the leak
as it played out, played out the way it would at a court
and that the Chief Justices decision not to respond,
the other justices decision not to respond, is the difference
between a court and a political body.
So that as that issue faded away and everybody stopped thinking
about the leak, what we were able to say was the way this played out is
because first and foremost it's a court.
Now I want to suggest to you the second thing that the court is,
the second story you can tell about the court when your friends try
to sell you the five four narrative is
to say it's not the Kennedy court.   It's not the Anthony Kennedy court.
It is true that he is a critical swing justice.
It is absolutely true, as Time Magazine suggested when they put him
on the cover, that we all thought he was going to be the pivot,
the fulcrum around the healthcare cases.
But it is also true that Anthony Kennedy, while he votes right
with the court on some issues, with the right wing of the court
on say abortion, affirmative action, healthcare, and votes left
with the court on some issues including gay rights,
juvenile sentencing and the war on terror, even though he does that,
he's not any longer completely the fulcrum of the court.
So last term Justice Kennedy was in the majority 93% of the time so yes,
his vote matters enormously but this term was really interesting
because this term Chief Justice Roberts was in the majority 92%
of the time or within the margin of error.
So it is quickly becoming not just the Kennedy court
but also I think the Roberts court.
And Chief Justice Roberts, not just in the healthcare case but in many,
many other cases, has tried to reappropriate that center spot
for the court himself so I think it's going to be very,
very hard in this coming term to say WWKD, what would Kennedy do?
I think that there are profound Chief changes at the very sort
of fulcrum of the court and we're going to see how those play out.
One other thing I want to say before I leave Justice Kennedy is
that the person who voted most often with Justice Kennedy this year,
and these statistics are all thanks to SCOTUS blog,
which if you don't read religiously, you should, but the person
who voted most often with Justice Kennedy this term was Justice Kagan,
which suggests to me again that there is some interesting movement
at the court and that breakdown
of that easy five four definition is really starting to take place
with Justices Kagan and Justice Roberts playing key roles.
So now I want to tell you, because I have just flagged it,
why I think Justice Kagan and the Chief Justice are starting
to shift the center of gravity at the court and if I'm right and if
that compromise that we saw in the healthcare case
where Chief Justice Roberts comes together with Justice Kagan
to fashion a majority in the Medicaid, the second part
of the case, the Medicaid expansion, then that's worth looking at
and saying what is happening between those two and so I want
to tell you my third way that I might frame the Supreme Court
as not just the five four story.
And I think in that sense it's an intergenerational court
and that what we're starting to see at the court is one generation,
an older generation, that probably does fit
that five four narrative pretty well but then a really intriguing set
of changes in the younger generation, in this generation of 50
and 60 year old justices, who are going to try
to think past that easy framework.
So I'm just going to give you four numbers, 79, 76, 75, 74,
those are the ages of four of the oldest Justices on the court.
If you do the math that means that by the 2016 election,
those numbers will be 83, 80, 79, 78.
This court is going to change radically
between this election and next.
I don't think just one justice is going to step down.
I think it could be as many as two or three.
But what's really intriguing to me is that if we think
about the justices who actually managed to craft a compromise
in the healthcare case, I think it's not an accident that it's two
of the justices who are thinking about a long game.
It's justices who are going to be on the court
for 20, 30, maybe 40 more years.
And what I think they did, and I have no inside background,
but what I think they did was say if we dig in now,
if we make this Bush V. Gore, if we make this Citizens United,
we are in for 30 more years of this.
And I think they tried to find a middle space
where they could work together.
I think some of what we're seeing in some of the angry descents that came
out of the courts this year, again, not an accident,
coming out of that older generation of justices who are
in their late 70's and may feel as though they haven't managed
to shape the constitutional world in a way that they wanted to.
And so I think the real frustration at the court comes out of justices
like Justice Scalia and Justice Breyer and even in the ACA case,
Justice Kennedy, who feel that they haven't quite managed
to accomplish what their life's work was supposed to be
and who are these upstarts coming up behind them
who are changing everything around?
I think this problem is going to be exacerbated
because the presidents are going to always have an incentive
to pick younger and younger nominees and so I think we're going
to continue to have a generation, a big generation gap,
between the older justices and the younger justices.
And I'm hoping, I'm hoping, that the end of this particular story,
what I'm calling my story number three, is that younger justices,
realizing this is a very long game and the stakes are very high
and there's not just one case or one year or two years or five years
at stake, are going to figure out ways to reach across the aisle
and make the court less polarized than it is today.
So this brings me to my fourth story that I want to tell about the court
and that is I think this is a court that is under extreme pressure.
It's under extreme pressure both from within
and extreme pressure from without.
From within I've already hinted at truly the C change that happened
when those leaks came out of the court this term.
None of us who cover the court had ever seen a contemporaneous link
to a journalist where what happened
at conference was divulged in such detail.
And truly not sense the book The Brethren has anyone
at the court told a reporter a story like that.
And I think that that will fundamentally affect the court this
coming term.
I think the fact that someone spoke to a reporter
about what are supposed
to be absolutely top secret deliberations will have
to affect the dynamic among the nine justices.
I also think that the fact that whoever it was
that leaked quite literally launched an attack on the chief justice
and questioned his integrity, will also, I think,
shape the way the court thinks about itself
and the way the justice's think about each other this year.
It was truly, truly, I can't say this strongly enough,
a violation of all the norms that the court holds dear.
And before the healthcare case you may remember there were an awful lot
of sort of stories in the press about how is it
that the court doesn't leak?   How can we not know?
The President must know, Romney must know, someone must know.
Someone's secretary's wife had to get drunk and someone knows,
some clerk knows and yet we didn't know.
We didn't know because we never know because the court just doesn't leak.
But now it leaks and it may continue leaking
and that is going to change everything.
I also want to suggest that the court is really under attack
in its mind from without.
And this goes a little bit to what I said in my remarks last year
where I talked about how the court feels quite assailed by the media
and quite violated and assaulted by the attention
on their personal conduct.
I think the justices feel now more than ever
that they are receiving very unfair scrutiny
and whether it's you know reporters with iPhones who take their picture
when they're out at fundraisers for certain causes or whether it calls
for their recusal, I think the justices themselves feel
that some kind of trust has been broken with the nation
and they're quite worried about the esteem of the court if you're going
to start calling out individual justices for bad behavior.
Now I want to say that and say in the same sentence
that I say the following, sometimes the bad behavior exacerbates the
problem and whether it's Justice Scalia, right now in some kind
of strange literary smack down with Judge Richard Posner
from the appeals court or whether it's justices attending fundraisers
for partisan groups or justices failing to recues
when there's a sense that they are compromised in a case,
I think that there is certainly grounds for the American public
to closely scrutinize the behavior of the court.
But I think it is certainly the case that the justices feel
that they are misunderstood, that they are being threatened
and that the American public doesn't understand
that what they do is not political.
And I also want to add to that this one gloss which is going
into this current election we heard an enormous amount
of bombastic attacks on the courts from candidates who wanted
to do all sorts of things, to cut back the power of the court.
So it's not entirely imagined on the part of the justices.
Institutionally I think there is a sense in this country
that the court has way too much power
and whether it's congressional attempts to roll cameras in there
or whether it's Newt Gingrich saying he's going
to have marshals drag judges before Congress to defend their decisions,
no matter who it is or how it's coming out, I think it is undisputed
that the rhetoric around the courts is very, very heated right now
and I think that makes the justices very nervous.
So I think that both in terms of their own relationships but also
in terms of the court as an institution in its relationship
to the American public I think there is a deep sense
that something is going wrong
and that the court isn't safe as an institution.
It is absolutely not an accident
that although the nine justices agree on absolutely nothing
as a matter of doctrine, the one thing that they will all speak about
and speak about and speak about is the integrity of the judiciary
and the need for an independent judiciary and their sense
that that has been violated.
The last frame I want to offer you to think about, both last term
and the upcoming term, is the following,
this is not the Rehnquist court and so I have talked about Bush V. Gore
and Citizens United as though those are interchangeable
but of course they're not because between Bush V. Gore
and Citizens United we had two key retirements at the court
and two key replacements.   And with Chief Justice Rehnquist
and Sandra Day O'Connor departing the court,
with Chief Justice Roberts and Samuel Alito arriving at the court,
it's all too easy to say it's a wash.
It's the same court, just you know Sandra Day O'Connor looks better
in a dress than Sam Alito does [laughter]
but that's not quite right.
And here's the frame in which I want to think
about the court right now going into this current term.
It's not the Rehnquist court
because the Rehnquist court was fiercely protective
of state's rights, because both Rehnquist and O'Connor felt very,
very strongly about that issue and if you think about the
so called federalism revolution which saw its high water mark
in the Lopez case or the Morrison case, the cases on Rehnquist's watch
where quite explicitly the court talked about the dignity of states,
I think that era is well and truly over.
And if you look at the two big, big decisions that came
down at the very end of this term,
one of them was the Arizona immigration law
where the court determined that no, Arizona doesn't get
to set its own immigration policy, which is truly,
truly I think a rebuff to the idea of state's rights.
And more pointedly, the healthcare case, which was at bottom an effort
by the states to say we want to regulate this on our own terms
and again the court said there is a value that's more important
and we're going to allow this to be decided at the federal level.
I think it's fair to say that both Chief Justice Rehnquist
who cared deeply about state's rights and Sandra Day O'Connor
who came from a state legislature, who really was defined by the fact
that she came out of Arizona and out of that legislature and has a deep,
deep deference for the legislative decision making of the states,
would have had a much harder time with these cases.
And if I'm right that this is not a state's rights court,
I think I might also be right that the healthcare controversy
for all the screaming and the shouting
and the drama wasn't really the issue for the Roberts court.
If the Robert's court doesn't deeply,
deeply care about the authority of states,
and remember again both Robert's and Sam Alito came
through the executive branch.
They didn't come up through their states.
They really came to government I think as believers in federal power.
So if I'm right that the Robert's court was never going to be all
that sympathetic to claims of states dignity and states authority,
it raises a question what are the issues
that the Robert's court really will splinter along?
And I think if you look at the writings
of both Chief Justice Roberts and Sam Alito before they came
to the court, it may be that the era of state's rights
and the federalist revolution was over before it began for them
and the issues that keep them awake at night are abortion
and affirmative action and gay rights and the separation of church
and state, which are all the issues that are coming
up to the court this term.
And if I'm right that those the issues that really,
really will fracture the court along ideological lines,
than this will be actually the term of the century as opposed
to last term, which was an interesting Congress clause session
and certainly did fracture the court on an ideological basis
but I think this term is going to be the term to watch.
I think this term is going to be the term to watch
because it raises a lot of issues that are very dear
to these justices and to all the justices.
So I want to just take a minute and briefly highlight the cases
that are coming up down the pike and probably the most important one
and the one you've heard of is the affirmative action challenge that's
going to come up from University of Texas.
And the Texas program basically has a 10% rule where the top 10%
of all high school students immediately get into UT.
The question, this challenge is going to be brought
by Abigail Fisher, a student who wasn't in that 10%,
who felt that she would have been entitled to a slot after that 10%
but for considerations of race.   Race is still used after the 10%
and so she's challenging the affirmative action policy at Texas.
I think it's fair to say that, remember in 2003 the court looked
at this issue in Grutter and the Michigan Affirmative Action cases
and they kind of set the clock.
And in an opinion Justice O'Connor said we're not quite ready
yet to do away with affirmative action and we're going to hang
on to affirmative action for the purposes
of fostering diversity in schools.   I think the clock may ring this term
and I think the court may well strike
down the Texas affirmative action policy.
It's certainly a case to watch for.
I think it's going to tell us an enormous amount
about where the court is on issues of race.
And I think it's important to also flag that Chief Justice Roberts
in the Seattle schools case, in the case that had to do
with the voluntary desegregation of Seattle and Kentucky schools,
was quite explicit and quite clear when he said his own view is the way
to stop thinking about race and dividing us by race,
is to stop dividing us by race.
In other words, the Chief Justice doesn't like race conscious policies
and I think there may well be five votes who feel
as strongly as he does about it.
Another case that's coming back to the court is
about the Alien Tort Statute.
This is the case that was actually argued last year
and the court has ordered reargued.
This involves a statute that is a very, very archaic and old statute
that has been used by human rights groups to bring challenges
to human rights violations in other countries by other parties
and the Supreme Court showed itself last year when it was argued
to be very, very dubious of the proposition that people who suffered
in Nigeria, who suffered human rights violations at the hands
of corporations, could be sued here in the United States.
So I think it's probably fair to say that in asking
that the case be reargued the court is opening the door for doing away
with the Alien Tort Statute, at least as it applies to corporations.
There are two dog sniff cases.
If you're a dog lover it's always fun to go to the dog sniff cases
because you find out how the justices feel about dogs [laughter],
something that's always deeply intriguing to me.
There's never cat cases at the U.S. Supreme Court.
There are two dog sniff cases coming up this term,
incredibly interesting privacy questions
and 4th amendment questions about whether a dog sniff is more
like a police search or more like something neutral
that doesn't invade your privacy.
The court has been pretty clear in recent terms
that dog sniffs are permissible when we're talking about say luggage
at an airport, that doesn't violate your privacy.
But these involve the home.
A dog sniff in Florida where the outside of a home was sniffed
by a dog and that was seen as grounds
for probable cause to get a warrant.
Another was a private truck so these two cases are going to come
and the courts are going to have to do a little bit of hard work
to determine whether a dog sniff violates your 4th amendment right.
The other cases that we don't know about, although we may know
about tomorrow, and in that one sense I wish I were talking
to you tomorrow, are the gay marriage cases
that the court is actually talking about in conference today.
Now they may not grant today, they may kick them off a little bit
but if my [inaudible] senses are still working after a few weeks
in Israel I would tell you that I think we're going to get a grant
on a gay marriage case this term.
The court has a couple to choose from.
They have the Defense of Marriage Act as being challenged.
That is a 1996 statute that bars you from having,
even if you're married legally in a state like Massachusetts
or New York, but you cannot get federal benefits for that marriage.
That's been challenged in many courts around the country
and the 1st and the 9th circuit have struck down DOMA,
the Defense of Marriage Act, so those cases are before the court.
The other case that's before the court is Proposition 8,
that's the case that comes out of California
where by referendum they try to do away with the right to gay marriage
and a district court judge there issues a very, very sweeping defense
of the right to gay marriage,
which has narrowed somewhat by the appeals court.
So now at this point, proposition 8, that case stands for the idea
that only in California and only if the citizens take away a right
that was already given to you by the state,
then you can't take away the right to gay marriage.
So it's an incredibly narrow, narrow decision which makes it less likely
that the Supreme Court wants to hear it.
What they probably have to hear is the DOMA cases
because you have a federal court striking down an active congress.
I think there's a sense it's a much bigger deal.
So if you're calling your bookie while I'm talking, you might want
to tell them to put money on the DOMA cases,
because I know everybody bets on the Supreme Court,
[laughter] with the promise to look at Prop 8
at the California case down the road.
And the final case that I think is in the hopper that is very,
very likely that the court will hear is the Voting Rights Act cases
which are really enormously consequential
to the way we vote in this country.
Section five of the voting rights act provides that certain states
with a history of discrimination on the basis of race have
to get preclearance from either the justice department or a panel
of judges in the District of Columbia,
before they can change their voting laws.
And essentially this is a challenge that is brought by various states
who say they just don't want to be cleared anymore.
It's too onerous.
The history of racism in voting is over and they want
to be treated just like the good states
so we've got challenges likely from Alabama, from North Carolina.
I think there's a very, very good chance
that the court takes these cases and I think, again based on a Texas case
that we saw a few years ago where the court more or less sent
out a warning shot and said boy, we really,
really hate these preclearance obligations, that there's a good,
good chance that the court does away with section 5.
Now I am not Wallace Stevens.   I am even not Dr. Seuss.
I don't write poems and the court is not a blackbird so I'm not going
to go on with 13 ways to look at the court.
But I will say if you wanted to, if you wanted to look at the court
as not a five four enterprise, another frame to think about is
for the first time we have a court comprised of six men and three women
and that changes everything.
For the first time we have a court comprised of six Catholics
and three Jews and that changes everything.
And for the first time we have a court
that has almost everybody coming out either off the bench or academia
without civil rights lawyers, except for Justice Ginsberg,
without criminal defense lawyers, without trial court judges,
we have a very narrow bandwidth of experience with the court.
And all of these ways are frames through which to look
at the court going forward.
So I want to urge you not when you're fed the easy, easy, easy, oh,
it's five four, it's always Kennedy in the middle
and he's just flipping a coin, I want you to push back a little bit
and say that the court is as complicated an institution
as any other institution in government and it's worthy,
I think, of closer scrutiny.
So I want to, I'll close because I want to take your questions,
but I want to close by just saying I've talked a lot about the stories
that we tell ourselves about our Supreme Court or the singular story
that we tell and how I think it's wrong.
But I want to suggest to you
that there's a really other important story which is the story
that the court tells itself about us and who we are.
And as I said to you, the court is very insulated right now,
more insulated I think than it should be.
And so I'm going to suggest to you that you may not think
that our voices matter to the court but they do.
And what we think and how we feel matters to the court.
And obviously with an election coming up and all those 70, 70,
70 and 79 year olds, our vote also will matter at the court.
So we are as important in this story about the court,
whether it's what we're writing, what we're thinking,
what we're arguing, as they are to us.
I think it is a mutual relationship and it's easy to forget
that when they're obscured by black robes.
And so I want to close by just saying that Justice Scalia likes
to remind people that most national constitutions don't last
a generation.
Ours has lasted over 200 years and the reason it's lasted is
because we're in it, we're in that game and we're fighting over it
and we're bickering over it.
And the guy who's trying to fill my teeth is asking me
about the Commerce Clause.
We are very much where we should be in our conversation
about the constitution, which is having it,
as opposed to just letting the justices have it.
And so I urge you, not just today on Constitution Day
but really every day that you're thinking about the court,
to think of the court as something that is alive,
as something that is vibrant, that is complex and nuanced
and as an institution that is dependent on you as you are upon it
for its legitimacy in our own.
And to really take the time to think very, very hard and very deeply
about what the court means and about what the constitution means.
And that's why in 200 years I think we'll still be having a
Constitution Day.   Thank you very much.
[ Applause ]
I'm happy to take questions about anything I've said
or anything I haven't said, yes?
>> Why do you think the Robert's court will keep leaking?
>> Dahlia Lithwick: I don't know that it will keep leaking
but I think that the fact that there was a leak will make
that taboo slightly, slightly less of a taboo and I think
that if you are a clerk, and remember the law clerks are told,
I mean after the brethren they were told, never talk to a reporter.
If a reporter calls, hang up the phone.
And they really didn't, they didn't, nobody leaked.
And I think that there is a sense
in which once it's happened, all bets are off.
I think that the clerks from last term, the Justices, their wives,
the clerks for this term, that maybe nothing happens when you leak.
And that's what worries me and I think they have a story to tell too.
And I think that there's a sense that if an injustice was done
with that leak and a misperception was floated out there,
it needs to be corrected.
And so my sense is not only have we kind of crossed a boundary
that we've never crossed but that there's going to be ill feelings
and there's going to be a desire to, I don't want to say payback
but I think to correct the record.
And one of the real problems with the court, excuse me,
is that we're not going to find anything out for decades.
I mean it's the nature of the court.
And there may be people at the court for whom decades is too long.
Yeah?
>> I wonder if you could say a little bit more
about the DOMA cases?   [ Inaudible audience question ]
>> Dahlia Lithwick: I don't, you know I don't know.
I know that you know there's a huge and quite exciting fight going
on between the groups because the DOMA cases were quite deliberately
set up to be the test cases.
The plan was always to go slowly and incrementally.
The DOMA cases are much more attractive vehicle I think
for the pro-marriage groups because they raise questions of federalism,
they raise questions of can the states just not do it themselves,
those are incremental narrow questions.
The Prop 8 case kind of came out of nowhere and there was a real feeling
that here's David Boies and here's Ted Olsen and they sort
of helicopter in to save the day by bringing a challenge in California
and you know raising huge epic, you know equal protection claims
and huge and epic privacy claims that are way too early
and that the courts are not ready to hear.
And so I think there was a sense that they were kind of upstarts
that came in from nowhere and really I think there's a definite sense
that there's a foot race between these two to get to the court.
I don't know if it's going to be the New York version
or the Massachusetts version.   I think it could be several.
I think that you know as to the question of what the court will do,
say it with me now, what would Kennedy do?
I mean I think this is the case
where Kennedy really will be the decisive vote.
I think he's the only person whose vote is in play.
I think that if this is an attractive vehicle for him
to really go the next step, and remember Kennedy was the justice
who authored Lawrence versus Texas, that was the gay sodomy statute
that he invalidated and invalidated in very,
very sort of sweeping language about privacy and family and the right
to raise your family as you saw fit,
it's language that really I think maps onto the facts
of the DOMA cases quite deliberately, as I said.
So really then the question becomes whether Kennedy is ready
to do this at some level.
And I think there is some sense, and the other thing I should say is
that the great fear underpinning all this is
that if the court isn't ready to do it,
we will have moved hugely backwards so this will really become Bowers
versus Hardwick again and we will have all the,
all the progress that's been made on this issue will be reversed
and we will have set the cause back for several generations.
So there's an enormous amount of strategic worry
that this is too much, that the court doesn't want to get ahead
of the Zeitgeist and that the Zeitgeist isn't quite there.
Recall that even though courts are striking down DOMA,
every place that this has gone to the ballot it has been defeated
so there's a real question
about whether this country is ready for this issue.
And I think it's interesting that the justice
who has talked most pointedly about the court not getting ahead
of the sort of cultural norms and where people are,
is Justice Ginsberg, who has said you know maybe Roe was just too much
too soon and there should have been another way to do it.
So I think the Justices are trying very hard to triangulate
against this question of is now the time,
is this the moment and how can we do this?
So I think the way to do it is to sort
of bring this state's rights question to the center
and to say this, at the end of the day,
is a deeply conservative proposition because not only are we
for marriage, which is a deeply conservative notion,
but we are for letting the states determine whether they can do
that which the states have always done.
And so my sense is that's probably, if there's something
that the court could get comfortable with,
I think that's the way to get comfortable.
And I think when I ask myself,
as I do three times a day, what would Kennedy do?
I think my answer on this is it seems to me
that Kennedy's trajectory on this issue has been quite pronounced.
Kennedy has gone from having real problems with gay rights
to being the most robust defender of them and so I think somebody
in his mid 70's who perhaps sees his tenure at the court beginning
to end might well think this would be a sort of noble way
to end his career, to have this be sort of the capstone of that line
of cases that he's written.
But I don't know for sure and I think I would add one other thought
which is the Kennedy who dissented in the healthcare cases was
as conservative as any Kennedy I've ever known.
And so this is one of those ways in which it will be interesting to see
if what happened in the healthcare cases does something
to push him farther from the center.
I don't know for sure but I think my bottom line is I think this really
is going to come down to, if he wants to be that guy,
if he wants this to be his legacy,
and as I said if this is the right moment,
and I think he would worry a lot
about whether this is the right moment,
so that's my long short answer.   Yes?
[ Inaudible audience question ]
I don't know, I have to say and I haven't watched it because I sort
of took off after last term and so I can't,
I really can't do justice to the question.
I would say having sat through the argument that there were more
than five justices who were deeply,
deeply skeptical about the whole project.
It was the most, it was surprising
to me the antipathy toward using the ATS for anything and that it was,
I did not have a sense that there were justices
on the fence in the first go round.
I had the sense that they would have happily done something very, very,
it felt like Citizens United to me, that it was being reargued
because there was a sense that this is just awful.
And I think it was for me the biggest surprise
of the term in terms of tone.
And so Justice Alito, Justice Scalia,
Justice Roberts had no patience for any part of using the ATS
for anything and it was not a closed question for them.
So I don't know, I don't know the sort of doctrinal answer but I know
that I was shocked at the level
of impatience they had for the whole exercise.
Yeah?
>> Are there any big cases affecting local authority this year?
>> Dahlia Lithwick: Local authority, not that I know of offhand
but I should tell you, this has been a stunningly,
usually the docket is much fuller now than it is this year.
They have granted cert on stunning low number of cases and so,
which is the other reason that whenever people say this is going
to be a snoozer of a term,
they really have a lot of cases to grant still.
So again, I'm a little bit apologizing about the fact
that I'm not starting in a week so I'm not as up
on how this term is going to go.   Anyone else?
Alright well I want to thank you very much.
I think there's food in the back
and I wish you a very Happy Constitution Day and 200 more.
[ Applause ]
>> This has been a presentation of the Library of Congress.
Visit us at LOC.gov.   [silence]