BY JOHANES MALIZA
Tom Goldstein, the moderator of SCOTUS blog, partner at Akin Gump, and veteran of 18 Supreme Court oral arguments, visited the Law School on Wednesday, September 17th.
Approximately 50 students attended the American Constitution Society-sponsored presentation, which was billed as a preview of the upcoming Supreme Court term. In truth, the clinical professor in Supreme Court Literature at Stanford and Harvard Law Schools gave a general commentary on the last few terms of the Supreme Court, tailored to requests from the students in attendance.
Goldstein began his talk with a brief introduction and assessment of the upcoming Supreme Court term. He said that while last term was filled with plenty of hot-button, “A-List” cases, such as gun control and abortion rights, the current term will be much more characterized by “B-List” cases. In the latter category, he placed cases concerning the navy’s use of sonar around marine wildlife and expletives in broadcasts. Though these topics are of interest to many and will be passionately debated by some, they simply will not have the same front-page news-grabbing power of last year’s decisions.
Looking back to last year’s decisions, Goldstein noted some broad trends and categories of cases worth discussion. He found the development of a schism in the conservative bloc of the court to be one of the more interesting developments. He felt that Chief Justice Roberts and Justice Alito seem far less inclined to affect a sweeping rollback of constitutional decisions where Justice O’Connor stood with the liberals. He acknowledged that all four conservatives were committed to rolling back the decisions on issues such as campaign finance and abortion, but that the pace will be much slower than Justices Scalia and Thomas would want. Goldstein said that one hallmark of these rollbacks will be the narrowing of precedents, rather than the outright overruling of cases.
In the field of statutory cases, he was even more surprised by some of the decisions. In the Gomez and CBOCS cases, dealing with employer retaliation, Justice Alito and Chief Justice Roberts actually defied conventional wisdom and sided with the liberals. Rather than overturn the cases of statutory interpretation, they chose to observe precedent.
On the theme of the Justices acting outside of their ideological labels, he noted that last term had only 8 classically liberal/conservative 5-4 splits, compared with 14 from the previous term. Perhaps it is a sign that the Court is beginning to reconcile within itself. Alternatively, perhaps it is a sign that the court is growing more conservative following the replacement of Justice O’Connor with Justice Alito. Removing an unpredictable vote and replacing it with a solidly conservative vote will necessarily cause less discord.
Discussing the Court’s right-shifting center, Goldstein said, “The great lions of liberalism on the Supreme Court are completely gone.” He noted that two members of the liberal bloc were avowed Republicans (Justices Stevens and Souter). He further commented that Justices Breyer and Ginsburg, while Democrats, would fool no one into thinking that they were the latter-day incarnations of Justices William Brennan and Thurgood Marshall. Goldstein commented that there was no alternative to calling Justice Kennedy the swing vote, because with nine Justices, “You have to have a center somewhere.”
Despite the Court’s rightward motion, Goldstein thinks that the era of unchecked Presidential power may be over. In his view, the Supreme Court was very willing to give President Bush a free hand in the wake of 9/11, but has grown tired of the President’s repeated argument of, “I am the President, and I get to decide.” Though two executive power cases from last term might suggest that the Court will start retreating from the 2002 term, Goldstein says he does not anticipate much in that regard. He emphasizes that the Supreme Court is a conservative body, and it likes executive power. It was just that the President had gone a step too far.
Goldstein also discussed the role of foreign law in the Supreme Court’s jurisprudence. Noting the displeasure with which most of America reads citations to foreign courts, he said that he doubts any Justices actually place much stock in the foreign developments. Rather, deference shown to foreign courts is an act of judicial diplomacy. Goldstein stated that the Supreme Court wants the rest of the world’s courts follow our lead in areas like liberty and democracy and that the Court has decided the best way to advance that conversation is through showing that we too are learning from them.
Next, Goldstein highlighted federalism as an issue of importance for the coming term. He noted that the previous attempt at rejuvenating federalism failed because the conservatives had to choose between drug laws and states’ rights, and they chose drug laws.
In his final issue commentary, Goldstein lamented the “death” of the Fourth Amendment. He comments that it has become known as the “Let Criminals Go Free Amendment.” In his view, lawyers seeking to preserve the Fourth Amendment would make their jobs much easier if they found plaintiffs who were not so unsympathetic. That is, rather than a murderer who was roughly handled, it would be better to find an upstanding citizen who was mistakenly arrested. The Supreme Court is one vote away, he says, from eliminating the exclusionary rule, and that vote is likely to come about should John McCain win the election.
Goldstein’s closing analysis for the ACS crowd was not one of “happy days if only Obama wins.” Instead, he feels that the court will get more conservative, regardless. He sees no political will on the left to appoint liberal foils to Justices Scalia and Thomas. “Either way, it’s bad for the left.”
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