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Slate’s Dahlia Lithwick Speaks at Constitution Day Event

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In celebration of Constitution Day (September 17), the Law Library welcomed Dahlia Lithwick of Slate Magazine who presented a lecture titled “Supreme Court Review: Election Year Issues and Highlights of the Last Term.”  The event was held on Monday, September 24 in the Mumford Room on the sixth floor of the James Madison Building.

Lithwick’s lecture was an insightful and fast-paced synopsis of the Supreme Court’s most noteworthy decisions of the recent term.  Along the way, she identified some emerging trends and gave us a sneak peek into the new term.

Robert Newlen, Dahlia Lithwick and David Mao. Photo credit: Kevin Long

Lithwick started her presentation with a focus on the Constitution.  She pointed out that although the climate in Washington today is divided, it is important that each side is debating constitutional issues with vigor.  According to Lithwick, this debate is proof that the Constitution is a “living document.”  Some of the constitutional cases addressed by the Court last term were: the fleeting expletives case FCC v. Fox Television Stations, Inc.; United States v. Jones, a fourth amendment rights case regarding use of a GPS device on a car after the expiration of a warrant; Arizona v. United States, the Arizona state case in which Arizona tried to re-frame immigration law; and of course, National Federation of Independent Business v. Sebelius, the Patient Protection and Affordable Care Act (health care legislation) matter.

According to Lithwick, the Court and its justices can be seen as mysterious.  They operate in a setting that is closed from the public.  Cases are argued and heard in an open forum but with a relatively small audience present.  There are no recorded minutes of the deliberations that occur between the justices after arguments are made.  Lithwick argued that although the Court publishes a written decision, its negotiations of the final verdict remained veiled – at least until many years after the fact when a justice’s papers are released.  Lithwick characterized the Court as “the last mystery left [with] justices that are inscrutable, unknown and unknowable.”

The effect of the Court’s mystery results in a somewhat skewed narrative written by the media.  The familiar story told, according to Lithwick, is one of polarized and political actors with four conservatives, four liberals, and Justice Kennedy acting as the all important swing vote.  Lithwick said that another familiar narrative of the Court is that it is “elite and out of touch.”  She explained, “the background of the Court is also limited with all the justices coming from only two law schools and their clerks from only eight law schools.” 

However, Lithwick encouraged intellectual criticism of the narratives, saying “this familiar story is both true but also not true.”  She encouraged the audience to question this story as Wallace Stevens questions things in his poem, “Thirteen Ways of Looking at a Blackbird.”  Lithwick discussed five different narratives for the Court:

1.  The Court is not a polarized, political body.  It was designed to be different and more insulated than the other branches of our Government.  The familiar story of a 5-4 Court like in the Bush v. Gore case is incorrect, Lithwick argued.  In contrast, Lithwick cited the statistic that 45 percent of the cases decided last term were unanimous decisions and not just the less-profile cases.  Examples include: United States v. Jones, Perry v. Perez, the Texas redistricting case, and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a ministerial exemptions case.  The Arizona v. United States case saw a 6-3 split while portions of National Federation of Independent Business v. Sebelius (health care case) were decided by a 7-2 split.  As further proof of the non-political nature of the Court, Lithwick emphasized Chief Justice Roberts role in the health care case, “[He] decided to put the Court ahead of politics and the election in the health care decision.”  Unfortunately, there was an unprecedented leak to the press after the decision, which said that Chief Justice Roberts had changed his mind at the last minute.

2.  The next narrative proposed by Lithwick is that this Court is not just the “Kennedy Court.”  She views Justice Kennedy not only as an important swing vote on the Court, but one justice on the Court with a “changing fulcrum.”  Although Justice Kennedy voted with the majority 93% of the time, the Court is undergoing a change with Justices Roberts and Kagan shifting the center of the Court.  Perhaps, Lithwick pointed out, the generation gap between the new and older justices are at play.

 3.  According to Lithwick, the third narrative is that this is an intergenerational court.  The four oldest justices are between 74 and 79 and by the next election we could see two or three of them retire.  The younger justices, who helped craft the health care decision, are thinking long term about the Court.  They are contemplating the next thirty years and they don’t want the court to, as Lithwick states, “dig in and remain polarized for decades.”  In her view, the younger justices sense the longevity of the post and the weight of the stakes at hand.  The angry dissents in the health care case were from the older justices who perhaps “fear they haven’t been able to shape the constitutional issues as they would have liked,” Lithwick said.

4.  The fourth narrative relates to perceptions within and outside the Court.  The Court is under extreme pressure due to the press leak relating to the health care decision.  Lithwick’s take is that this leak violated all the norms of the Court.  The attack on Chief Justice Roberts was unprecedented and came from inside the Court, resulting in a general feeling of concern on the part of the justices, who are worried about the impact on the esteem of the Court from, as they see it, the unfair scrutiny by the media who question their activities and involvement in fundraising and other extracurricular activities.  Lithwick continued to explain that the justices feel misunderstood by the public and embattled.  There is a deep sense that something is wrong with the Court because of arguments that it has become a political body.  Lithwick argues politics impacting the court are exacerbated during election years, such as the current situation in which “we have seen a political candidate call for changes to the Court and the Judiciary.”

5.  The final narrative is that the “Rehnquist Court” era is over.  As Lithwick explains, the Rehnquist Court was fiercely protective of states’ rights.  Two of the big decisions last term, the Arizona immigration case and the health care case, indicate the Court tends to focus on the federal government’s role over that of the states.  Lithwick cites the fact that Justice Roberts’ and Justice Alito’s backgrounds are grounded in the Executive Branch and a “belie[f] in Federal power.”

 Lithwick concluded by emphasizing that this next term is the term to watch and features some interesting, pivotal cases.  She highlighted the following: Fisher v. University of Texas, an affirmative action case concerning the University of Texas’ admission policies; Florida v. Jardines and Florida v. Harris, two dog-sniffing cases which are concerned with whether a sniff qualifies as a police search or is more neutral and does not violate a citizen’s privacy; and Kiobel v. Royal Dutch Petroleum, a case re-argued from last term on the Alien Torts Statute.  Lithwick also indicated that there are a few DOMA (Defense of Marriage Act, Pub. L. 104-199) cases which might be heard or perhaps a Proposition 8 case.

Lithwick’s presentation was timely and very thought-provoking.  We look forward to celebrating Constitution Day again next year!  Note that this and other Law Library events are open to the public and announced on In Custodia Legis, so keep watching this space. 

Update: The event video was added below.

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