BY SAMANTHA CRANE
Last Thursday the American Constitution Society hosted a Supreme Court Preview with Tom Goldstein and Patricia Ann Millet, co-heads of the Supreme Court practice group at Akin Gump Strauss Hauer and Feld.
Goldstein, also the head writer for SCOTUSblog, drew a crowd of avid Supreme Court followers and blog readers as well as a number of other students curious about the future of the Court. Beginning his preview by asking the audience about which topics in upcoming Supreme Court litigation they found interesting, Goldstein received questions ranging from upcoming cases to individual judges, the future makeup of the Court, and litigation strategies.
“It’s hard to talk about next term without talking about last term,” Goldstein remarked, speaking of general trends in the Court’s jurisprudence. He described last year’s court as “very deeply ideologically divided,” with a large number of 5-4 decisions. Most of these decisions, especially those regarding abortion, race, campaign finance, religion, and Title VII, were won by the conservative Justices. With the conservative Justices “emboldened” by their ability to sway cases and “committed to correcting what [they regard] as incorrect points of law,” Goldstein expects them to lead the Court in ” a pretty consistent march to the Right.”
Both speakers specifically expressed concern for the future of reproductive rights in this and coming terms. Noting that “Justice Kennedy, I think, feels that he was snookered in the Casey case,” Goldstein discussed Kennedy’s change of heart in Gonzales v. Carhart, a case that involved an almost identical set of facts as Casey. Goldstein argued that in Carhart, the Court, without explicitly overruling Roe or Casey, limited their holdings in a “pretty aggressive way.” Millet pointed out that the Court may strategically “chip away” at Roe, eliminating any need for them to definitively overrule the decision and thus draw concentrated attention from the public.
When asked about the role Justice Kennedy would play in the coming year, Goldstein noted that last year Kennedy voted with the majority in every one of the 5-4 decisions, and only dissented in two cases overall.
While Kennedy’s vote was frequently influential, however, Millet reminded the audience that Supreme Court litigators should not focus entirely on winning perceived “swing” votes, and instead must argue to the entire court: “In any given case, a lawyer would be crazy to spend all their time talking to a particular Justice. . . when you’re talking to the Supreme Court, you’ve got to get the one you want in a way that doesn’t alienate the other four that you also want to get.” She noted that “giving an answer that’s going to make Justice Kennedy happy could tick Scalia off to no end, or on the other hand could upset Justice Ginsburg or Justice Breyer.”
The conversation then shifted to the upcoming case Boumediene v. Bush, concerning Guantanamo Bay prisoners’ constitutional rights to challenge their detention through habeas proceedings in the district courts. In this case, remarked Goldstein, “everybody agrees that Congress basically did strip the federal habeas right from the detainees,” and instead instituted limited review in fed circuit and military commissions. Thus, at issue is the question of whether the Suspension Clause of the Constitution guarantees individuals the right to habeas proceedings.
Despite the conservative makeup of the Court, Goldstein noted that a number of factors point to at least a partial win for the prisoners. The Court had originally denied certiorari in this case, then changed its mind, suggesting that Justices Stevens and Kennedy, who changed their votes, may be more confident than before that the petitioners may win.
“This line of cases tests the question of whether or not you can give the finger to the Supreme Court,” Goldstein remarked. “The answer is ‘no.'” The current Supreme Court is highly confident in its own abilities and is likely to want to retain its ability to review things, despite attempts to remove things from their review.
The real question, Goldstein continued, was not whether the Suspension Clause guaranteed a right to habeas proceedings of some sort, but whether the scheme Congress set up to allow prisoners to contest their detentions satisfied due process requirements. On this issue, Justices are likely to reach a fundamental decision about what’s “right and wrong and appropriate,” and are thus likely to really respond to characterizations of how the current military commissions actually work.
Again, both commentators stressed Kennedy’s importance in this case. “Justice Kennedy is very confident of judiciary’s capacity to do justice and do the right thing,” remarked Millet, who added that this same sentiment is likely to influence Kennedy’s decision in Baze v. Rees, a case challenging Kentucky’s lethal injection procedure on Eighth Amendment grounds. While Kennedy has upheld death sentences in many cases and prefers to defer to states, Millet noted that “a little thing” – such as the fact that veterinarians don’t use that particular chemical combination to euthanize animals – “can bother him. . . . I can see him wringing his hands a lot on this one.”
The speakers then turned to discuss particularly difficult cases, such as Crawford v. Marion County Election Board – challenging Indiana’s strict voter identification laws – and Parker v. District of Columbia, a case challenging Washington, D.C.’s ban on firearms that has yet to be granted certiorari. Goldstein noted that there is no question that part of the motivation behind Indiana’s voter identification laws is discouraging low-income, traditionally democratic populations from voting: “Indiana has never prosecuted someone for impersonating a voter.” However, given the record of this case – the plaintiffs failed to produce any witnesses to testify that they were prevented from voting by the law – it is unlikely that the Supreme Court will look far beyond Indiana’s legitimate interest in maintaining the integrity of its elections.
As for Parker, Goldstein noted that the Supreme Court has not ruled on the Second Amendment in over 70 years, making it anybody’s guess how it will be decided. Goldstein’s and Millet’s firm, Akin Gump, represents the city of D.C. in this case.
On potential nominees if a Democrat won in 2008, Goldstein said he thought that the nominee of choice would definitely be a woman, most likely a moderate, but joked that “everything I’m going to say today, including things that happened in the past, is going to be speculation.” However, he noted, because Justices Stevens and Souter are the most likely to leave the Court in the coming Presidential term, followed by Ginsburg, the Court is likely to either stay the same or shift dramatically to the right.
His likely picks were HLS Dean Elena Kagan, Diane Woodof the 7th Circuit, or Sonia Sotomayor of the 2nd Circuit. Other nominees might include Seth Waxman, Garland (D.C. Cir.), and Teresa Roseborough, a former OLC staffer and Chief Litigation Counsel at MetLife.