Blogtoberfest Guest Post #4, By Joe Schneiderman

The First Monday in October is when the new term of the Supreme Court of the United States opens.  The occasion is momentous and highly anticipated. The first cases that have received certiorari review are argued. Similarly, a lengthy list of cases that are not going to be reviewed on certiorari are released, often known only by

their party names. The Court may recognize and celebrate a new Justice’s appointment or welcome a new Attorney General (who is an Officer of the Court). The New York Times and Washington Post often have previews of the major cases. And, from time to time, the Justices speak to the press, but never about impending cases (as they are ethically forbidden from doing.) Justice William Brennan spoke to Nina Totenberg and to the New York Times before the October 1986 Term, Justice John Paul Stevens sat with the New York Times in 2007, and, this year, Justice Antonin Scalia spoke to New York Magazine.

Yet the Supreme Court remains a shrouded enigma to most citizens. It is my duty as an Advocate, however, to alleviate and ameliorate that. So, here, in Part 1, I will try to explain and dispel two myths about the Supreme Court’s parlance, and then provide a list of some “must-reads” and “must-watches” in the hopes that a putative reader will become better acquainted with the Court, its’ history, and personnel.

First and foremost, the Supreme Court decides issues of federal law only.  The State Supreme Courts are the final arbiters of their own statutes and constitutions. For example, ten years ago, the Supreme Judicial Court (SJC) of Massachusetts interpreted the Constitution of Massachusetts to hold that banning gay marriage (and denying its attendant benefits) was unconstitutional. The U.S. Supreme Court has no authority to review the decision of the SJC interpreting the law of Massachusetts, unless the laws of Massachusetts conflict with federal law, or, if the SJC interprets federal law (including the Federal Constitution-and the U.S. Supreme Court has reviewed two landmark cases from the Massachusetts state courts in the last ten years.) Indeed, the important role State Supreme Courts play in our daily lives does not get nearly enough attention. (But that is the subject of Part 2 and I shall not belabor it further here.)

Second, what the hell is a writ of certiorari? Well, Certiorari is Latin, and literally, it is “to be informed, appraised, or shown.” Legally, it is an order from a higher court to a lower court to transmit the record of proceedings to the higher court for review. And in practice simply, certiorari means that the Supreme Court will review a particular case because there is some substantial, divisive or novel federal question of law that has been percolating (and dividing) the federal appellate courts and state supreme courts. Certiorari is discretionary-a litigant has the right to petition for certiorari but has not the right to receive review by certiorari. There are very few direct appeals as of right to the U.S. Supreme Court.

Most appeals must initially be heard in the federal circuit courts of appeals (of which there are 13, 11 geographically, one for the District of Columbia, and one for specialized federal issues. Massachusetts is located in the First Circuit, with New Hampshire, Rhode Island, Maine, and Puerto Rico). And, as discussed earlier, a case with a federal question may arise from a state appellate court, typically, the state supreme court. (New York and Maryland call their highest courts the “Court of Appeals”, and Texas and Oklahoma have a supreme court [which is the highest civil appellate court] and a separate court of criminal appeals.) In a rare or important enough case, a litigant may petition for certiorari before judgment and bypass a federal appellate court. (One of the landmark cases involving the federal sentencing guidelines ten years ago came up on certiorari before judgment from the federal court in Maine, bypassing the First Circuit.) Similarly, a case could come to the U.S. Supreme Court from a local or minor state court if the litigant lost there and has sought review in the highest state court where review may be had.

Four Justices must agree to grant certiorari in order for a case to be heard by the full court, and in practical terms, the Court controls its own docket and selects the cases it wants to hear. The Supreme Court reviews substantial or novel issues of federal law and those issues typically have divided the federal appellate courts. There are also important individual cases where there is a compelling need for finality or prompt resolution. A denial of certiorari is not, however, a decision on the merits of the case. A denial of certiorari just means that the case and its issues are not going to be reviewed at this time by the Supreme Court (or the Supreme Court has no authority to review the case, like pure state law questions discussed earlier.) Some Justices dissent from denials of certiorari;  Justice Harry Blackmun famously renounced the death penalty in a dissent from a denial of certiorari. And of course, the major issues (typically involving the Constitution) make the news after certiorari was granted.

With that in mind, we turn to the media.

Federalist 78

Alexander Hamilton (speaking as Publius) makes an open appeal to the people of New York to adopt the new federal constitution and its provisions for a co-equal, independent judiciary with life-tenured judges. Hamilton calls the judiciary the “least dangerous branch” as it possesses only judgment. But,  the judiciary also “the weakest of the three departments” and must be vigorously safeguarded against attack, particularly because of its role in a Constitution with enumerated powers. Similarly, the Constitution is, as Hamilton puts it, the “fundamental” law which “the judges out to be governed by.” (This is in turn reflected in Article VI of our Federal Constitution; the Federal Constitution is the Supreme Law of the Land “and the judges in every State shall be bound thereby.”) Thus, our federal judges need their independence and tenure subject to good behavior. Hamilton’s reasons for the independence (and life tenure) of federal judges still ring true to this day. And Hamilton’s vision sums up the reality that John Marshall eventually realized as Chief Justice and has continued to this day. And Federalist 78 laid the groundwork for that. (Consider reading Federalist 78 with Madison’s Federalist 10 and Marbury v. Madison. And, John Jay, the other author of the Federalist papers, was the first Chief Justice of the United States, followed by 2 others John Rutledge [rejected by the Senate] and Oliver Ellsworth of Connecticut before John Adams named John Marshall the 4^th Chief Justice.)

The Courage of Their Convictions

Peter Irons is an attorney, political scientist, and historian. And he has done time-he was imprisoned at the federal prison at Danbury for defying induction into the draft. (His conviction was later reversed and he was pardoned, and while in prison, he corresponded with Howard Zinn.) And in Courage of their Convictions, he recounts the stories of 16 American litigants who had their cases heard by the Supreme Court-in their own words.

Irons runs a marathon gamut, which still has tremendous staying power after 25 years. Among others, Irons recalls the stories of Lillian Gobitis (a Jehovah’s Witness who could not salute the flag in good conscience and was suspended/expelled from school) Gordon Hirabayashi (who fought his racially-based internment during World War II), Robert Bell (who sat in a segregated lunch counter in Baltimore), Dr. Jane Hogdson (prosecuted for performing an abortion in a hospital and whose original case was not actually heard by the Supreme Court, if I remember correctly, I may not) and Michael Hardwick (an Atlanta gay man whose apartment was invaded by a biased police officer and arrested for consensual sodomy.) Chapters are titled with quotes; “I am gonna kill you! [Lillian Gobitis]”, “A Jap’s a Jap [Gordon Hirabayashi]”, and “What Are You Doing in My Bedroom? [Michael Hardwick].”

Irons’ accounts are highly readable and personable. Each account is half-memoir and half-recap and Irons successfully balances the two to recount the case as the litigant lived it. The litigant’s memories leaven the law to make it relatable to all, and Irons captures their emotions beautiful and the stakes for the individuals, especially their hopes and fears.  Irons’ beliefs are fervently rooted in individual rights and a living Constitution (in the mold of Justice William Brennan and Justice Thurgood Marshall) and that concern is omnipresent in the book (and may rise to bias).

But Courage of Their Convictions ultimately benefits from Irons’ potential bias. If the Constitution lives to protect our liberty and dignity, we must never forget what an individual’s perspective of what his or her liberty and dignity is in a concrete case. And Irons shows us just how fragile our liberty can be. Especially noteworthy and compelling to a 2013 reader is Michael Hardwick’s story (whose case was Bowers v. Hardwick.) I won’t give too much away-but let’s just say a seemingly homophobic Officer Torick set the whole thing motion. Finally, Irons also tells us where the litigants are now (at least, what happened to them by 1988.) If there is anything that captures the individual and lay perspective of the Court, it is this piece. Irons should update it. And, I think, it is a fitting place to start. (Admirers of Courage of their Convictions may also enjoy People’s History of the Supreme Court, also by Peter Irons.)

Becoming Justice Blackmun

Old Number 3 was Harry Blackmun’s nickname when nominated to the Supreme Court. Nixon’s last two nominees had failed. So, he plucked the Minneostan from the Eighth Circuit (where Justice Blackmun achieved, among other things, the rare feat of succeeding and sitting, with Judge John Sanborn, whom he served as a Law Clerk.) Three years later, the world knew Justice Blackmun as the author of Roe v. Wade.

But there was much more to Justice Harry Blackmun than fortutitous thirds. And Linda Greenhouse, who covered the Supreme Court for thirty years for the New York Times, recreates Justice Blackmun’s time and his impact on the law magnificently. (Greenhouse also worked from Justice Blackmun’s papers, which are publicly available at the Library of Congress).  The real gift of Greenhouse’s piece is to create a compelling narrative of how Justice Blackmun’s service on the Court and relationships there shaped him. Most poignant is the story of Harry Blackmun and Warren Burger.  The two were childhood friends in Minnesota, culminating Justice Blackmun being Chief Justice Burger’s best man. Paths diverged in the 1950’s when Burger delved into Washington politics and Blackmun stayed in Minnesota (despite Burger’s invitation) and joined the Eighth Circuit. Chief Justice Burger sought to recapture that relationship when Justice Blackmun became Old Number 3.  Justice Blackmun’s mother warned him that his relationship to Chief Justice Burger would change. Justice Blackmun dismissed it.

But time would prove his mother correct. Chief Justice Burger was a dysfunctional, pompous, arrogant (non)leader who vacillated between extremes, withering away their relationship to the point of collapse. By contrast, Justice Blackmun was a thoughtful scholar who sought to employ all his talents to solve thorny legal issues, unfailingly willing to question himself. And these two personalities  fundamentally  clashed.

The story of the landmark 1983 case INS v. Chadha is uniquely illustrative of this point. Five Justices (including Blackmun) were set to declare the “Legislative Veto” unconstitutional. (The Veto was Congress’ reservation of power to itself to nullify certain actions of the Executive. In Chadha’s case, Congress nullified the Attorney General’s grant of mercy from deportation.) No opinion was assigned and there was talk of reargument.  Justice Blackmun protested this prospect; Chadha had languished “in immigration limbo for nine years…We are here to decide cases, and he and the Government deserve an answer to the issues…” Chief Justice Burger attempted to schedule a special Saturday conference, and the term began to lapse. Justice Blackmun insisted on answers into why the case was still not assigned. And by then, Chief Justice Burger announced that he had foisted the case into reargument. To Greenhouse: “Burger froze…it was the absence of leadership a vacuum that had swallowed one of the most important cases of the decade.”

The story behind Chadha case is just one jewel in a mighty treasure trove that Greenhouse assembled. She humanizes the Court and Justice Blackmun but avoids devolving into an ideologue. Rather, she shows how the Court can transform a person, and how he can transform the Court, the Constitution, and the nation-and the effect on the relationships in his lives. And that is why it is a must-read.

The Myth of Judicial Activism

Although I did not realize it when I first met him, Kermit Roosevelt was one of my teachers for Bar Prep. He is a Professor of Constitutional Law at UPENN and a former Law Clerk to one of my favorite Justices, Justice David Souter. And, in 2006, he wrote an outstanding book that I had the privilege of reading during an undergraduate class on jurisprudence.

At the outset, let’s get something straight (which Roosevelt also does.) The charge of “Judicial Activism” is a convenient but misleading factitious shorthand used by either political party for a Supreme Court decision they happen to disagree with. For example, Democrats charge the Supreme Court with judicial activism for declaring parts of the Federal Election Acts unconstitutional in the oft-cited Citizens United decision. At the same time, since Nixon, Republicans have attacked the Supreme Court’s decisions expanding individual rights (or safeguarding the rights of criminal defendants) as judicial activism. Both parties recklessly fire the torpedo of judicial activism across the Judiciary’s bow (and the Judiciary typically cannot respond, save through the voice of a Chief Justice. But I digress.)

Roosevelt makes an extremely compelling case to abolish the factious charges of judicial activism and how we can understand and either accept (or dissent from) decisions of the Supreme Court. First and foremost, the Constitution is deliberately written in broad (and often ambiguous) terms. There are few self-effecting or plain provisions and those that are often do not inspire controversy. Courts charged with interpreting the Constitution must therefore fill gaps in concrete cases based on certain institutional considerations, including how and when to defer to co-equal branches of government. These considerations can also include history, the efficacy of a branch of government or of democracy, and others. Roosevelt subsequently applies his approach to assess recent controversial constitutional decisions as (ill)legitimate The real gift of Roosevelt’s approach is that the factors he utilizes are objective. For example, using Roosevelt’s criteria, I charged one decision he called legitimate as profoundly illegitimate and vice-versa. Roosevelt’s book may require a bit more concentration take some more substantial concentration for a non-lawyer, but, his writing style is plain and thoughtful. I also would still highly endorse it, if for no other reason than it is an extremely thoughtful plea for peace. Roosevelt gives us, The People, for whom the Constitution is written (and who can also unmake the Constitution) tremendous guideposts to understand the decisions of the Supreme Court and when we should either accept them (or dissent from them.) And, hopefully, we can bury judicial activism next to the Eighteenth Amendment.

Recount

Although not purely about the Supreme Court, Recount nevertheless makes this list because it offers an extremely thoughtful look into how a case reaches the Supreme Court, especially via the State Courts-and the tensions between our federal government and our state governments We follow the Gore and Bush legal teams and their competing legal strategies and arguments. We also learn how fragile our system of democracy truly is through the rife incompetency of Katherine Harris (portrayed masterfully by Laura Dern in her efforts to be Queen Esther) and her fundamental misunderstanding (if not disdain) for the importance of Rule of Law, particularly how she pondered defying a Judge’s ruling. Katherine Harris obviously did not know this command of the Supreme Court; “no state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” Cooper v. Aaron, 358 U.S. 1, 18 (1958).

One of Recount’s strengths is the realism of how the legal arguments proceeded. Indeed, Craig Waters, the public information officer for the Florida Supreme Court, actually made the Florida Supreme Court’s facilities available to the filmmakers. The questions and answers from oral arguments are taken directly from the transcripts. But the proceedings are not stodgy or buttoned. To the contrary, the filmmakers thoughtfully dramatized the competing judicial opinions, by, among others, Justice Scalia, Justice Stevens, and Chief Justice Wells of Florida in publicly accessible formats. We also come to know (and I would say, admire) the lawyers involved as an All-Star cast brings them to life (Kevin Spacey, Bob Balaban, Ed Begley, Tom Wilkinson, among others.) Recount thoughtfully and accurately portrays how and why the case reached the U.S. Supreme Court, and, should, I submit, give us some pause before we decide to bash the Florida Supreme Court.

Muhammad Ali’s Greatest Fight

            I returned from Boston earlier this month quite tired from business on a Saturday night. (My trip to Boston was fulfilling though.) I usually don’t watch much on current television save Jeopardy! and Seinfeld, and, after being misled about the film Flight (which was depressing and terrible), I have become vigilant about which shows and f

ilms occupy my time. (That and also, my favorite shows are not aired (and, curiously enough, beyond Star Trek, are not readily available on Netflix, to wit, Spenser For Hire and Boston Legal.)

But, my Mom mentioned to me that Muhammad Ali’s Greatest Fight was airing on HBO and that it was, apparently, about the Supreme Court. So, I made myself comfortable and watched. And, like Recount, HBO came out swinging. If Recount represents how a case reaches the Supreme Court, Greatest Fight accurately represents what happens to a case in the Court.

The case is about Muhammad Ali’s conviction for defying induction into the draft, told mainly through the lenses of Justice John Marshall Harlan II (an alum of my fair instiutition, New York Law School) and his law clerk, Kevin Connolly (who is likely a composite character, but, if the real Kevin Connolly is out there who clerked for Justice Harlan, please write to me!) Christopher Plummer is absolutely magnificent as Justice Harlan, one of the smartest jurists in the 20^th century who was an occassional foil to the Warren Court with his belief in judicial restraint (something else we’ll discuss in Part 2.) But Justice Harlan’s thoughtfulness and jurisprudence and a model for many great jurists to follow (including Justice Souter!) But I digress.

            Greatest Fight again takes an all-star case to accurately portray the nine justices then sitting, which was a Court in flux and facing uncertain times. Indeed, Nixon had just gotten his first two appointees (Chief Justice Burger and Justice Blackmun), and Justice Harlan and Justice White were sympathetic to them.  But Justice Black and Justice Douglas were still there (and throwbacks to the New Deal) and Justice Brennan and Justice Stewart (and also Justice Marshall, although he was late in the Warren Court’s journey) were part of the Warren Court’s former core. And, as Justice Brennan says, “with five votes, you can do anything around here.” Similarly, the Court’s procedures (including and especially the conference, their collegiality, and the role of the Solicitor General) dynamics were also all spot on, especially the Justices’ personalities. It was a treat for me to see how Justice Brennan’s joviality and strategic nature put on display accurately, and also to see, conversely, how Chief Justice Burger was accurately portrayed as pompous and self-important. There is some creative license (someone who watches this film and reads Becoming Justice Blackmun will realize that Justice Blackmun was the subject of that.) But, the Court as an institution is the real character in this film and just what happens in the course of rendering a decision. (And, Pablo Schreiber seems to have an unusual talent for playing assholes [as he does here], but I digress.)

I have rewatched Greatest Fight at least ten times. I hope that one watching will make a reader come to appreciate the Court and the Justices as an institution. Although the conference is private, when we understand the many considerations the Justices undertake towards a published opinion, we can understand the Court. Bless the filmmakers.

The Supreme Court-PBS

The Civil War, New York: A Documentary Film, and others are some the greatest hits from PBS and WNET. In 2007, the two networks came out with a four-part series on the history of the Supreme Court in the same style as Ken and Ric Burns. And, it is a fitting bookend to Courage of their Convictions that this should be the last “must-read or must-watch”, because the documentary’s strength is to recount the major decisions and jurisprudence of the Court through the lenses of particular Justices and their personalities. Part 1 recounts the early Court under Chief Justice John Marshall and his efforts to make it a co-equal institution, Part 2 recalls the Court from the Civil War to the New Deal, through the competing eyes of Justices Stephen Field, John Marshall Harlan I, and Oliver Wendell Holmes, Part 3 follows the Court through Hugo Black’s years (1937-1971), and finally, Part 4 culminates with William Rehnquist’s time on the Court (1971-2005), including his influence as Chief Justice. Each episode focuses on the decisions but also the place and role of the Court in American society and how that role evolved. And great commentators have all come together to discuss that history (including, and, forgive the selfless tout of my alma mater again, Professor James Simon of New York Law School and then-Professor Annette Gordon-Reed-and Chief Justice John Roberts and retired Justice Sandra Day O’Connor.) The documentary is truly thorough but also avoids being heavy handed. Brian Keane, who also did the soundtrack for New York, offers majesty and humanity. You come to relate to the Justices and the Court-at least, I did. And I hope you do too.

So, I hope these are some previews of useful insights into the Supreme Court of the United States and I hope that this will spur public understanding. Stay tuned for Part 2, where I will discuss the importance of State Supreme Courts….