A talk (or three) with Kathleen Sullivan

Kathleen Sullivan, a law prof at Stanford (and former Dean of the Law School there) gave an hour-long speech/presentation at the Stanford Sierra Camp about the Supreme Court and current goings-on there. She followed up with a short Q&A session (and an hour-long one the next day). She was a marvelous speaker, and any trepidation that anyone in our party had that this was going to be Dull, Boring Constitutional Law stuff was quickly dispelled. She was entertaining, informative, quick on her feet, and just all-around fun to listen to.

(Since I was scribbling notes on my Palm, apologies for any misstatements below. I’ve consolidated notes from both sessions into similar points, but not covered quite all the topics she addressed, esp. in the Q&A.)

1. She recently argued before SCOTUS on the interstate wine shipments case, arguing that states could not discriminate between internal wine distributors and external ones. SCOTUS (damn, I missed the decision) agreed, which will soon open up direct mail wine shipments to states that didn’t previously allow them (New York being a noteworthy example). (Huzzah.)
2. She has a tremendous amount of respect for the Supreme Court as an institution, and as individuals. She had general or specific praise for all of the members, even where she disagreed with their decisions or ideologies. They are consistently looking five steps ahead, not just at the current case, but at how a given ruling might affect other cases (thus the infamous hypotheticals that lawyers before SCOTUS are forced to run through, and woe be unto the lawyer who argues that the hypothetical is not the case that is being argued).
3. The three unique items she identified that distinguish our federal judiciary from that of most other countries:

   A. Appointment through a political process (vs. appointment by other judges or special boards)

   B. Appointment for life

   C. A very strong tradition of judicial review of the law itself, not just ruling on facts and procedure.

   These three factors have made SCOTUS and the Federal Judiciary uniquely powerful courts amongst constitutional democracies.

4. Four of the current SCOTUS appointees are Stanford grads (or from the law school?). Rehnquist and O’Connor have two degrees from Stanford. Breyer and Kennedy are the other two (I think).

   This court is also noteworthy for its longevity. Rehnquist is just two years away from tying the record for length of service, should he last that long, and the court as a whole has been constituted for 11 years.

5. Interestingly, all the current justices except Rehnquist come from a significantly judicial background. That differs from, say, the court that ruled on Brown v. Board of Ed, where none of them were (SCOTUS at the time was made up of former governors and legislators and Attys General, etc.). That’s been a growing trend — e.g., the only noteworthy non-judicial appointment that has been seriously toyed with of late was when Clinton was considering nominating Mario Cuomo. While that might change (e.g., discussion of Alberto Gonzalez as a nominee), it seems to have the status of “tradition.”

   Margie asked whether that tradition would continue, and if that was a Good Thing. Sullivan had mixed reactions about it. On the one hand, there’s a value in having a legal perspective, vs. a political one (as above). On the other hand, “real life” experience also has a lot of value — O’Connor’s experience as senate majority leader in Arizona (before she entered the judiciary) was very valuable in her understanding how legislatures actually operate; Powell’s experience on school boards served a similar purpose. [It may be that going with “pure” jurists might be a disadvantage, but going with folks who have experience in multiple branches of government might be of more value.]

   What there’s not been as much of has been appointment of legal academics, though there’s been more of that from the GOP side than from the Democratic side (which struck me as odd).

   One further drawback to judges as justices, Sullivan suggested, is that decisions tend to be a lot longer, with more footnotes and tests and clauses. [I’d imagine academics would be much the same.] Opinions from politicians tend to be less technical, shorter, more straightforward and illustrative of principle.

6. One of the things about an independent judiciary is that there is a major difference between political ideology vs legal ideology, and political vs legal conservatism are often very different things. This is often a huge frustration to those who appoint judges, and is a source of frustration to the GOP today, when the vast majority of SCOTUS are Republican appointees (seven of them, five appointed by Reagan and Bush I), but where even the most recent of them are not necessarily “paying off” in terms of reliably supporting GOP political goals.

   That frustration plays out in three major policy targets of the GOP for decades: abortion, school prayer, affirmative action. Despite having a legislative majority, the White House, and a majority of the justices as appointees, SCOTUS has tended to uphold abortion rights, prohibit school prayer, and allow affirmative action. There’s been incremental movement on peripheral issues — allowing regulation of abortion, or allowing government funds to religious programs — but no major sea changes, because the justices tend to not align with political but with judicial ideologies.

   She pointed to Scalia as an example. H’s a particular favorite to demonize amongst liberal politicians. Yet he sided with the 5-4 majority to allow flag burning. He sided with the majority in the recent decision that prevented judges from bringing in non-tried factors into sentencing trials, resulting in a lot of unhappy federal prosecutors. And he sided with the majority in arguing that a particular designated enemy combatant had to be freed from the brig, saying that if you want to suspend habeus corpus you can do so by formally doing so (as the Constitution provides), not by simply deciding it doesn’t apply. These were not decisions that pleased the GOP administration and its conservative supporters, by any means.

   For another example, she pointed to Rehnquist. Here’s a guy who used to write speeches for Goldwater. But in various battles between states rights and federal powers, he’s tended to go with more of the legal (and old school but not present-day political) conservatism. So, for example, he voted to strike down the Gun-Free School Zones federal law — even though it was a GOP majority which passed it — because he didn’t feel the feds had the authority to legislate in that arena. And it cuts both ways, so that he vote to strike down the Domestic Violence Against Women law, because, similarly, he didn’t feel it was something that was within federal purview.

   Sullivan doesn’t think, in sum, that the court is going to change significantly, even if a couple of justices get appointed by Bush. Between the political process involved, and long terms, SCOTUS as an institution evolves, it doesn’t radically shift (in either direction). Especially since, as an institution, it has a strong sense of independence and institutional responsibility, and feels a need to maintain credibility amongst the population.

7. She supported the fillibuster agreement/compromise of last week. The threat of filibuster, she said, forces dialog between the president and the Senate (and the minority in the Senate). She agreed that it’s not a constitutional matter, but a practical one. Consultation with and (tacit) consent from the minority means that the minority lends credibility and legitimacy to the result.

   As she noted (from the Federalist Papers), the judiciary is the weakest of the three branches, having neither the power of the sword nor of the purse; it depends on a sense of legitimacy, of agreement from the population and politicians that it should be obeyed. One thing that foreign jurists often mention to US ones when they meet is how unique it is in the US that courts are actually obeyed.

   In Sunday’s session, the question was raised again, and Sullivan agreed that, to some degree, the agreement has only shifted the debate to what constitutes an “extraordinary” circumstance. Does that imply a frequency? If Person X is similar to Person Y, and Y was confirmed, should X get a pass? Are portfolio balance issues allowed (“we’ve let in N people who support the lumber industry, so the President had better send up someone who is a Sierra club member”)?

   On particular federal court candidates, Sullivan tried to speak with a bit of judiciousness (she might, after all, end up arguing before one of them). Of Janice Rogers Brown, she indicated that she’s very smart, and though she’s made some public/private statements that were “pretty pungent,” Sullivan’s not seen any sign of extremism from the bench. (Priscilla Owens, on the other hand, she was less sanguine about, in terms of her decisions.)

   When asked who the smartest SCOTUS justices were, she was even more discreet. She did indicate that they were all highly intelligent (“smart cookies”), even if they differed in their approaches and ideologies. They also have very different approaches in the SCOTUS proceedings. Scalia asks a lot of questions (enough sometimes that the other justices can be seen rolling their eyes); he also approaches questions aggressively, clearly driving toward an answer.

   Breyer, on the other hand, tends to ask very long, complicated questions (having an academic as well as judicial background), with long preambles (chewing up into the 30 minutes, max, you have to make your case). Sullivan indicated that, as a lawyer, the trick is to get oneself into a dialog with him, so as to be able to make one’s points as the conversation continues.

   There are two basic camps of justices. Scalia and Thomas are “bright line” justices, who seem to drive more from principle and seeing a bright ideological line of right and wrong that decides issues. On the other side are “common law” judges who see things more in grays, who draw on precedent more, on real life circumstances more, and who (gasp) even look at foreign jurisprudence for inspiration.

   But they’re all smart, perhaps the most intelligent SCOTUS in history, she said.

   Which all becomes part of what she called “justice management,” learning how to work with the justices how they like to be worked with, taking advantages of their individual or institutional foibles, while realizing that, ultimately, they call the tune. Appearing at the Supreme Court isn’t an opportunity to practice your oratory, Sullivan said, but to answer questions; the justices already know the law and the background at that point. It’s not a matter of saying the most, but making your points. And that means it’s not out of the question to sort of pander to the personalities — referring to their home states and cases they’ve dealt with before.

8. So, where are things likely to go with the SCOTUS review of California’s medical marijuana act? She thinks they’ll support the feds, since production of a crop has, traditionally, given the federal government power to regulate under the Commerce clause, even if the crop is not being explicitly shipped over state lines (it could be, and its production could regardless affect marijuana prices in other states, etc.).

   On the other hand, she thinks the Oregon assisted suicide law will be a much closer call, because that same argument can’t really be made there.

   Issues of Federalism (the separation of powers, not horizontally between Executive, Legislative, and Judiciary, but vertically between the federal government and the states) seems to be a key to a lot of current court cases, and a place where SCOTUS hasn’t always gone along with the federal direction over the last decade or more.

   It’s a balancing act, though, with different justices going both ways on the subject. Kennedy, for example, voted in the 5-4 majority that struck down Arkansas’ Congressional term limits law, arguing that the states couldn’t interfere with federal business in that way. The same session he voted in the 5-4 majority against the gun-free school zones federal law, arguing that the feds had no business in local law enforcement.

   A trend over the past several years has been striking down of federal laws that impact state treasuries (i.e., allowing suits against states in federal court); the point being not the value of the suits (e.g., discrimination laws) but the danger of federal laws that impact state treasuries (the power to tax being the power to destroy, so too is the power to impose fines and damages).

   Under that general philosophy of federalism, Sullivan thinks SCOTUS should find in favor of California in the medical marijuana case, but she suspects that may be beyond the outer edge of what the court will find politically feasible.

   She doesn’t think, though, that any repeal of Roe v. Wade is likely any time soon, even if there’s turnover of a couple of justices. The current regulation of abortion (notification acts, paperwork, etc.) is thought to be a better approach at this point than so significantly rocking the boat on the issue as to outright repeal Roe. There’s also a resistance on the court to looking like they’ve been “captured” by the GOP.

9. She was asked her opinion of the PATRIOT act, etc. She noted, rightly, that whenever we’ve made broad restrictions of civil liberties, we’ve usually had “post hoc” regrets about them, whether it was the McCarthy era, or the Japanese Internment, or the sedition acts of 1918, or Lincoln’s suspension of habeus corpus, etc.

   One of the problems with the PATRIOT-era laws is that so much of what goes on with them is done in secret, which restricts public exposure to them, and, thus, informed public judgment of them. There may also be a bit of the “frog in boiling water” syndrome, as we incrementally eat away at our liberties.

10. Someone asked about an interesting case where someone who is a property owner in a school district, thus paying taxes on the property, is not currently allowed to vote there, not being a resident. Sullivan pointed out that the Constitution doesn’t have a right to vote in it, per se, but provides voting procedures, as well as restrictions on how you cannot discriminate on voting rights. In other words, if voting is allowed, here’s how you have to do it, and here’s how you can’t restrict it, but not much more than that.

    That said, she noted that it sounded like an interesting case, and that the geographical basis for most election boundaries is not necessarily graven in stone, only in tradition; stockholder elections demonstrate that it’s possible to frame elections in other ways.

11. On media coverage of SCOTUS, Sullivan indicated that, with the longevity of this particular court, the media covering it have a very good feel for the individual justices. There’s a certain degree of “old home week” when the court meets and the media are there. Rehnquist still refuses to have cameras in the court, but there have been a couple of cases (Bush v Gore and the Michigan Affirmative Action case) where voice recording/broadcasting was allowed.

    Interestingly, until this past year, transcripts from arguments were not identified by the justice asking the question. Sullivan said she’d make a point, when answering, to address the justice asking the question by name, so that she could review the transcript later and identify them.

12. The SCOTUS justices meet each Friday behind closed doors to discuss cases — no staff, no recordings. The junior member of the court monitors the door and takes notes of the meeting (and Breyer, after 11 years of being the junior, is probably the person most looking forward to a new appointment to the court).
13. There’s been discussion over the years of breaking up the Ninth Circuit into additional circuits. On the one hand, Sullivan thinks there are some good practical reasons for doing so — there are about 30 judges on it, and there is little sense of them as a judicial body (as opposed to, say, the First Circuit, which has six judges), since they so rarely work together.

    On the other hand, if it’s to be done for political reasons, as retribution for “liberal” Ninth Circuit decisions, or to isolate (Northern) California, Sullivan said that would be a horrible idea. And given that there’s a sense that would be the real reason, she’d just as soon not see it done at present (practical reasons for doing so aside).

14. Next up for the Supreme Court?

    Sullivan would like to see discussions/debates over candidates focus more on their opinions on the bench, less on either personal gossip (“he hasn’t paid his bar tab”) or on statements made as personal opinions while off the bench (articles, dinner speeches, etc.). [That’s a tough one (IMO), since the higher the appointment (in particular to SCOTUS), the less restrained a judge may feel to putting their opinions into force (once not under political restraint). On the other hand, the office may lead to decisions different from those held by the individual in a personal capacity.]

    Who’s likely to be nominated for the next SCOTUS position? If you focus on current judges, relatively young, and acceptible to conservatives, she thinks the front-runners are John Roberts, Michael McConnell, and Michael Ludig. Ludig is the most conservative, and might have to recuse on death penalty cases (his father was murdered, and he’s come out in the past very much in favor of capital punishment). McConnell did a lot of the groundwork, academically, for the changes in SCOTUS decisions about allowing federal funding of religious groups (e.g., vouchers being usable for all schools, even parochial ones), and has a longer “paper trail” than Roberts, who has a relatively short one. She sees Roberts as having at least the public persona (photogeniality, charisma) to be a good justice, and possibly Chief Justice.

    If Rehnquist is the justice to step down first, then the question becomes whether Bush will appoint someone directly to the Chief Justice position (which would take only one confirmation hearing), or promote someone from inside (which would take a second confirmation hearing). Not many good candidates inside — O’Connor is too old and too “liberal” for conservative groups, Scalia never read “How to Win Friends and Influence People,” and Thomas remains too controversial.

    As a part of that question, she noted more than once how she very much dislikes the “reduction of complicated records” to sound bites during appointee battles.

15. Another case she got finished arguing before the Calif. Supreme Court was Napa Valley Vintners vs. Bronco. When the US government set up a series of “appellations” for wine, they allowed some old labels (“Napa Ridge,” for example) to be grandfathered in. California imposed stricter laws, though, requiring that any wine that use the name “Napa” in it to include 75% grapes from Napa. Bronco, one of the largest wine companies in the US, fought that, arguing that they could use one of the grandfathered names to produce anything they wanted.

    She argued for the vintners (supported by vintner associations from elsewhere in the state) and won before the Calif. Supremes, who held it was California’s right to have stricter appellations than the US law required, that there were no takings involved, and that it was not a free speech ruling.

    So if something says Napa on the label, you can be sure it has at least 75% Napa grapes — for whatever that’s worth.

At lunch on Sunday, Margie spotted her looking around for a table to sit at, so she waved her over. “In person,” she came across as very genteel, versed in the art of conversation, etc. We refrained from peppering her with more “business” questions, and instead chit-chatted about vacation spots.

I fetched her a glass of iced tea, since she’d arrived without something to drink, which she seemed honestly surprised and pleased at. “Chivalry is not dead,” she said.

Nice lady.