Starr Struck: Clinton’s old investigator speaks on SCOTUS, Prop 8


Kenneth Starr, now Dean of Pepperdine Law School

On February 12, Kenneth Starr, former Solicitor General, D.C. Circuit Judge, and Independent Counsel, spoke to a standing-room only crowd in Pound Hall. Starr, the current Dean of Pepperdine University School of Law, spoke about the Roberts Court and business cases. The Harvard Federalist Society sponsored the event.

While Starr joked about the potential for a speech on business topics to be “deadly dull,” in fact the Dean’s presentation was focused on the narratives running through the Court as currently composed. Starr began his discussion with a comment on the meta-narratives of the Roberts Court. He spoke about the divisions between Justices that have led to the notion that the Court is really two courts.

The Dean focused intently on the generational gaps in the court, noting that the ages of the justices range from Justice Stevens at 88 to Justice Roberts at 54. This notion of a Court divided ran through the rest of Starr’s introduction, as he mention the ideological divide of the court on issues such as gun control, racial discrimination, and other hot-button issues.

The majority of Starr’s speech, however, focused on an area of considerable agreement on the Court: business cases. From antitrust cases, to securities class actions, the Dean went through a litany of cases that have enjoyed, if not unanimous support, at least a supermajority of the Justices’ votes. Each case, despite being on a different aspect of business law, found a large group of justices coming to what many would term a “pro-business” outcome; from limiting pleading standards in securities cases, to limiting implied causes of action, to precluding anti-trust claims.Starr’s explained this trend in the Court by citing a single unifying “transphilosophy” of “deep skepticism of our civil justice system.” The skepticism, according to the Dean, crosses the lines typically used to divide the court-both ideological and generational. This narrative, according to Dean Starr, better captures the nuances of the cases and the philosophy of the Court than the basic premise that the court is “pro-business.” Citing Massachusetts v. EPA, the Dean noted that while business is not always a winner in the current Court, the one constant is skepticism of class actions and the civil system.

In the question and answer session, Starr spoke about the individual philosophies of the Justices. He spoke about the proceduralists, and pointed to the way that current class action law tugs on due process and touches these Justices. He also spoke about how other Justices are struck by the fact that “if you certify a class someone is going to become very rich.” The Dean also took time to field questions ranging from gay marriage litigation in California to the experience of being Solicitor General and finding oneself overruled by the President of the United States.

In particular Starr was asked what should be done regarding those persons married between the legalization of gay marriage and the passage of Proposition 8. The Dean, noting his wish not to speak too specifically about the case he will be arguing on March 5, did state that California has a long tradition of populism and a distrust of government. One manifestation of this populist spirit is a nearly-century long history of amending the state constitution by popular vote. Starr concluded by stating that, as he has argued in his briefs on the matter, he believes the history of Proposition 8 shows that the people of California desired to remove the validity in the state of California for gay marriage. While persons married prior to Proposition 8 could be recognized in other states, Starr stated that Proposition 8 did not allow them to be treated as married persons in California.

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