At the ACS National Convention: Covering the Court

To start, kudos to Tom Goldstein for doing a great job as moderator (as he did at last year’s ACS panel on the same subject). He had clearly done his homework, asking lots of thoughtful questions that included excerpts from the panelists’ coverage. He kept the proceedings moving along at a good clip, injected the occasional humorous note, and did not commandeer the proceedings (as some moderators do, squeezing out the panelists themselves).
Here’s our summary of the discussion highlights (paraphrased, unless otherwise indicated). As with our past posts, we apologize for its unpolished nature. If you prefer to watch the discussion for yourself — which we encourage if you have the time, since it was a most worthwhile conversation — video will be posted here.
Tom Goldstein: Has the Court moved to the right?
Robert Barnes: SCOTUS this Term seems to be going back and forth (as opposed to last Term, when it seemed to be tacking rightward).
Linda Greenhouse: It appears that “there has been an effort to tone it down” on the left. Maybe the sense among the liberal justices is “pick the fights you can win,” and don’t complain too bitterly if you lose.
Tom Goldstein: Has the intellectual energy in the Court’s liberal wing left the building?
Dahlia Lithwick: When you watch oral argument, you get a sense that the conservatives are working together, coordinating their questioning, “playing a game of keep-away.” You don’t get the same sense with the liberals. Maybe it highlights the age gap between the right and left sides of the court.
Tony Mauro: The conservatives lately have been in the public eye — e.g., Justices Scalia and Thomas, who have books to sell. The liberals aren’t liberals in the mold of Justices Brennan and Marshall. Also, the Court this Term is ruling more narrowly — it seems less ideological than last Term.
Linda Greenhouse: It’s hard to be energized when you’re playing defense. Perhaps the liberals see their primary role as “keep[ing] bad stuff from happening.”
Robert Barnes: The Court this Term seems to be pulling back, focusing on the facts of specific cases; the liberals are maybe aiming “to live to fight another day.”
Linda Greenhouse: Thus far, the only case this Term that fits the 4-4-Kennedy mold is Boumediene.
Tom Goldstein: What would it take to change the direction of the Court?
Linda Greenhouse: Eight years of President Obama. [Applause.]
Dahlia Lithwick: One exciting aspect of a possible Obama presidency: “progressives will get their turn at the mic” with respect to judicial philosophy. During the Roberts and Alito confirmations, we were subjected to hours and hours of C-SPAN hearings imbued with conservative judicial philosophy: “umpire” talk, judicial minimalism, etc. In an Obama presidency, we might start to hear talk about judicial empathy and the important role of the courts as a countermajoritarian check.
Tom Goldstein: If Justice Stevens were to retire, even if he were replaced “by someone younger — which seems likely” [laughter] — could it be possible that his successor wouldn’t have his skill and effectiveness behind the scenes?
Linda Greenhouse: That’s certainly an issue. Justices say it takes a few years to get your sea legs on the Court, to learn how “to play inside that peculiar sandbox.”
Tom Goldstein: Dahlia, you called the Scalia dissent in Boumediene “absurd on its face” and “fatuous.” Why do you want the terrorists to win? [Laughter.]
Dahlia Lithwick: That’s been the “re:” line in all my hate emails for the past few days. But we’ve actually seen an interesting shift in the Court this Term. [For more, see her recent column.]
Did the justices realized that their behavior last Term verged on the unseemly? Scalia’s dissent in Boumediene was a reversion to that. He was basically saying, “Americans will die!!! And it’s all your fault, Tony Kennedy!” [Laughter.]
Linda Greenhouse: “I don’t think Justice Scalia is really as afraid getting out of bed in the morning as he sounded in that opinion. [Laughter.]
Even the case handed down on the same day as Boumediene, also a habeas case, was relatively uncontentious. So Boumediene sticks out like a sore thumb this Term.
Dahlia Lithwick: Boumediene may be an outlier perhaps because it’s essentially a meta-fight about the role of the Court in society. Justice Kennedy’s ode to the glory of habeas vs. Accusations from the dissenters of judicial overreaching and ignoring of experts.
Tom Goldstein: What about the voter ID case?
Dahlia Lithwick: I viewed this as a conflict between two imaginary problems. There was no great evidence of voter fraud, nor was their great evidence of voters being denied the right to vote.
Linda Greenhouse: After the end of this Term, I’ll no longer be a journalist. I’ll be able to participate in the civic life of the country. I’ve signed up to work as an election worker this November. [Applause.]
Tom Goldstein: Thoughts on the D.C. gun control case?
Linda Greenhouse: The Court’s word on this won’t be the last. You’ll see a battle over permissible regulation in the years ahead.
Dahlia Lithwick: I agree. The individual rights view will prevail. I get a lot of hate mail from forceful advocates of the “individual rights” view of the Second Amendment. After the Court agrees with that view, what will these people get worked up about?
We’ll have a fight over what constitutes reasonable regulation. “The Court isn’t going to say, ‘Here’s a rocket launcher; good luck to you.’ They won’t be giving out AK-47s and the 7 Eleven.” [Laughter. Lithwick was by far the funniest panelist.]
Tom Goldstein: What role will the Supreme Court and its composition play in this year’s election?
Linda Greenhouse: The right may seize upon Boumediene to rally the base. The liberals may also use it, pointing out the closeness of the decision. [For more, see her recent article.]
But how big an issue will this be in an age of $5-a-gallon gas? We’ll see.
Tony Mauro: This will be the eighth time I’ll write an article about the Court as a potential election issue. But it just never quite gets there — and I’m not sure it will this year either.
Robert Barnes: Maybe the Court would become an issue only if SCOTUS rules against the “individual rights” view in the guns case.
Dahlia Lithwick: McCain talks about / gets asked about judges and the courts a lot more than Obama. Conservatives are generally more focused on the courts as an issue. The big question: Can Obama make the Court an issue for progressives? This is a crucial issue that progressives need to get excited about.
It Isn’t Tilting in The Same Old Ways [Washington Post]
Justices Come Under Election-Year Spotlight [New York Times]