2011 Supreme Court Breakfast Table: Lithwick, Dellinger,Clement

From: Dahlia Lithwick


Posted Thursday, June 23, 2011, at 11:20

AM ET

Dear Paul and Walter:

And so we set off this morning on what

will be—unbelievably—the 10th-annual

Supreme Court Breakfast Table. Walter, I

was just nostalgically looking back at the

very first entry you wrote for Slateon

June 19, 2002, seemingly carved directly

into the grits at Sutton's Drug Store in

Chapel Hill, N.C. We've had so many

fantastic writers and lawyers join us at t

he counter in the years since, and I am

so very grateful to have you back.

Needless to say, when you joined us last

year, Paul, breakfast became even more

delightful. Thanks for coming back. There

is so much to talk about as we close the

current term, and also a good deal of

non-Supreme Court legal news that has

happened in recent weeks that we might

also mull.

It's looking like a low-carb finish to a

quiet term, with Monday's Wal-Mart

decision and the Fred Phelps funeral

protest case attracting the majority of

the media attention this year.

Retirements and confirmations are

unlikely and everyone appears to be more

interested in judicial extracurriculars

than judicial opinions. The case everyone

seems to be awaiting most eagerly now is

the California violent video games case. I

confess I am not sure why, beyond the

comedic value in imagining Justice

Stephen Breyer playing Postal 2(for

research purposes, of course!), plus the

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A Low-Carb Term

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prolonged delay in releasing the opinion.

(It was one of the first cases heard this

term.) I wonder if either of you has any

thoughts on what makes a case a

"blockbuster" for media purposes and

whether we get it wrong when we make

determinations about which cases best

represent the term and the court.

Also, as we await the decisions that will

come down this morning at 10 o'clock, I'd

like to ask your thoughts on the War

Powers Act bombshell that detonated

over the weekend. What do you make of

the news that President Obama simply

rejected the legal views of his senior

lawyers from the Pentagon and Justice

Department—including Attorney General

Eric Holder—when he determined that he

could continue the airstrikes in Libya

without congressional authorization? I

am interested in your thoughts both on

the merits and also on the institutional

questions all this has raised between the

White House and the Justice Department.

I confess I find the process here

stunning. Walter, you were quoted in the

New York Times piece and I wonder if

you would amplify what you said. Paul,

like Walter you know more about these

institutional questions than almost

anyone. While we await your thoughts on

the question, here's former Breakfast

Tabler Jack Goldsmith weighing in, and

here is Bruce Ackerman.

That's a lot to chew over before your first

cups of coffee. But I look forward to your

thoughts on these and all other matters

jurisprudential, legal and over easy.

My best,

Dahlia

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From: Walter Dellinger

To: Dahlia Lithwick and Paul Clement

Posted Thursday, June 23, 2011, at 3:18

PM ET

Dear Dahlia and Paul,

Dahlia is right that the issues pending

before the court at this end-of-term time

seem less weighty than in prior years,

and may in fact be overshadowed by

constitutional and statutory questions

pending before the other branches of

government. The debate over whether the

current military operations in Libya are

now in violation of the War Powers

Resolution seems more significant than

some of the matters about which the

justices are opining.

The war-powers debate serves as a

reminder that some important legal

interpretations are made outside the

courts. A president's decision that the

military operations are lawful is final.

Although some members of Congress

have filed suit arguing that the

operations violate both the Declaration of

War Clause of the Constitution and the

War Powers Act, that suit is sure to be

dismissed for lack of standing.

So, the executive branch has the final

word. That fact is no reason for those

officials to treat such questions lightly.

On the contrary, the finality of some

executive legal decisions makes it all the

more imperative that the executive

proceed with the greatest possible care in

answering those legal questions. That is

why there is so much concern about the

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Meanwhile, at the White House …

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way in which the Obama administration

determined that the Libyan operations

comply with the War Powers Resolution.

I don't know the details of how those

legal decisions were made. But I am

distressed that the White House press

secretary keeps saying it was a fine

process because the White House counsel

had informal opinions from lawyers from

all the relevant departments and the

president signed off on the final

decision.

That would be a fundamentally flawed

process. A president should get his

primary direction on major questions of

domestic law from the Department of

Justice, not from the White House counsel

or from any of the operational

departments of the government. And

within the Department of Justice, the

dispositive role should be played by the

Office of Legal Counsel.

It may not be immediately obvious why it

matters so much which lawyers decide.

But it matters greatly. The Justice

Department is a far superior place to

make legal decisions. I served for a few

months (in 1993) in the White House

counsel's office and for a few years (1993

to 1996) as head of the Office of Legal

Counsel in the Department of Justice. In

my experience, the difference in

institutional setting makes a significant

difference. It is much easier to get legal

questions right at OLC.

Everyone in the White House is a political

appointee. The lawyers serving there

swim in a pool that is dominated by

policy and politics. There is no shame in

that: Politics is the way we govern

ourselves in a democracy. But it is not

now and never has been a proper place

for making legal decisions binding on the

executive branch.

I can attest that OLC in administrations

of both political parties has many times

said "no" to requests urgently pressed

upon the office by officials from the

White House or other agencies. The

institutional constraints on OLC are

highly conducive to sound legal

judgment. The OLC lawyers do their work

in a setting that is full of career

attorneys who are (or should be)

consulted on every major legal decision.

And OLC is guided by both institutional

precedent and a long tradition of careful

process. None of these critical elements

exist in any White House counsel's office,

in any administration.

There are outstanding lawyers in the

White House, at the State Department,

and in the Pentagon. Their views are

properly sought out and given great

weight by OLC. But in the end it is the

Justice Department that should decide

questions of domestic law. The Justice

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Department does not tell the State

Department how to conduct diplomacy or

the Defense Department how to conduct

military operations. And those

departments and the White House

counsel's office, all of which have

operational responsibilities other than

getting the law right, should not be

telling the Justice Department and OLC

how to decide legal questions.

Trevor Morrison, who has worked in the

White House counsel's office, makes this

point well in his article, "Constitutional

Alarmism" (PDF):

Unlike OLC, the Counsel's Office does not

have a decades-long practice (inherited

from an even longer tradition among

Attorneys General) of providing formal

legal advice based on its best view of the

law. Nor has it generated a body of

authoritative precedents to inform and

constrain its work. It operates within, not

outside, the politically charged

atmosphere of the White House.

For this reason, he notes, "The[se] very

institutional factors [making] the

Counsel's Office more likely to say yes to

the President also make its advice

dramatically less valuable when trying to

defend an action to a skeptical third

party—whether Congress, the press, or

perhaps ultimately a court."

As with any issue raised anywhere in the

executive branch, the president is

constitutionally empowered to make the

final decision. But before making a

decision contrary to legal advice

provided by OLC that the proposed

executive conduct would be unlawful, the

president should at a minimum meet face

to face with the head of OLC and the

attorney general, address their concerns

and conclusions, and remain convinced

that their legal conclusion is wrong.

With one horrific exception—the

indefensible failure of OLC to provide

proper legal advice on torture and

electronic surveillance in the

administration of George W. Bush—the

disinterested legal decision-making

process of OLC has long constituted a

vital check on executive power. That

check simply won't exist if critical legal

decisions are made by having a White

House counsel informally consult with

lawyers from a variety of agencies and

presenting all those views to the

president. Instead of publicly defending

the "informal" process by which the

Libyan war-powers decision was made,

the White House needs to assure us that

such a process was an aberration that

will never be repeated.

I have always thought that the opinions

of OLC in administrations of both

political parties (with the torture

exception noted above) held up quite well

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in comparison with the opinions that

emerge from the Supreme Court. I'll be

interested in how well the justices' endof-

term opinions survive your critical

assessment.

Walter

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From: Dahlia Lithwick

To: Walter Dellinger and Paul Clement

Posted Thursday, June 23, 2011, at 4:24

PM ET

Dear Paul and Walter:

One of the reasons we are so fascinated

by the court's so-called "confrontation

clause" cases—they concern the right of

the accused, as described in the Sixth

Amendment, "to be confronted with the

witnesses against him"—is that they

scatter the usual groupings into a new

pattern. Instead of breaking down along

any recognizable political lines, the court

clusters into what Walter helpfully

described several years back as the

court's legalists versus its pragmatists.

Back then, we were discussing Blakely v.

Washington, a sentencing case, and the

court's legalists were Justices Antonin

Scalia, Ruth Bader Ginsburg, John Paul

Stevens, David Souter, and Clarence

Thomas. In their view, the Constitution

means what it says, period. The

pragmatists—less worried with the

constitutional purity of the holding than

with the disastrous implications for the

justice system—were Justices Sandra Day

O'Connor, Stephen Breyer, Chief Justice

William Rehnquist, and Justice Anthony

Kennedy. When Melendez Diaz v.

Massachusettswas decided in 2009, the

legalist camp stayed the same as the new

Chief Justice John Roberts and Justice S

amuel Alito stood with their

predecessors, Rehnquist and O'Connor.

The issue in Melendez Diazwas whether

the confrontation clause gave criminal

defendants the right to cross examine, in

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Confrontations Over a Clause

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person, the lab technicians and other

forensic analysts who testified against

them, even when that "testimony" largely

consisted of somewhat mechanical

reports on blood and drug evidence. The

court said yes. Roberts and Alito sided

with the pragmatists in dissent.

We are now starting to see that Justices

Elena Kagan and Sonia Sotomayor will

follow in the footsteps of their legalist

predecessors as well. Today, in a new

confrontation case, Bullcoming v. New

Mexico, the court determines that

confrontation clause requires not just

that a defendant be permitted to cross

examine the lab technician who prepared

a blood report but that the lab analyst

who testifies at a criminal trial must be

the same person who performed the tests.

The case involved a drunk driver in New

Mexico who objected when the lab

technician who testified against him at

trial neither conducted the tests on his

blood nor witnessed it. Writing for

herself, Scalia, Thomas, Kagan, and

Sotomayor, Ginsburg finds that New M

exico Supreme Court was wrong to

conclude that the surrogate testimony of

another lab technician satisfies the

confrontation clause. The state high

court had ruled the testimony

permissible, because the analyst "simply

transcribed the result generated by the

gas chromatograph machine" and

presented "no interpretation" or

"independent judgment" in his

testimony. Thus the machine itself was

Bullcoming's "true accuser," and the

testifying analyst, a "mere scrivener."

Ginsburg wasn't buying it.

These confrontation clause cases not

only make for strange bedfellows. They

also lead the bedfellows to speak to each

other in the harshest possible terms.

Earlier this term, in Michigan v. Bryant,

another case involving the right to

confront one's accuser, six justices

determined that a dying man's

identification and description of the man

who shot him was not "testimonial" for

confrontation clause purposes because

they had a "primary purpose … to enable

police assistance to meet an ongoing

emergency." Scalia, writing in dissent on

behalf of himself and Ginsburg, pretty

much accused Sotomayor and the

majority of mangling the truth to suit

their legal conclusions. Wrote Scalia,

furiously: "Today's tale—a story of five

officers conducting successive

examinations of a dying man with the

primary purpose, not of obtaining and

preserving his testimony regarding his

killer, but of protecting him, them, and

others from a murderer somewhere on the

loose—is so transparently false that

professing to believe it demeans this

institution."

Kennedy, writing in dissent in

Bullcoming today, accuses the majority of

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fashioning a "rule not amenable to

sensible applications" and of using

"wooden formalism in order to bar

reliable testimony offered by the

prosecution." He then details the

practical burdens the court's

confrontation clause jurisprudence has

imposed upon the states. It's interesting

to see how readily the pragmatists will

constrain the confrontation clause as

written when they deem the costs too

high. I wonder whether and how you

both think this formalist/pragmatist

split will continue to creep into other

areas of criminal law.

Walter, I am so glad to hear your

thoughts on the deeply distressing

process that has played out in the

current war powers debate and am glad

you agree that the White House has

misstepped. And, Paul, are you thinking

about the White House or the court

today, or are you just madly playing

violent video games while you still can?

Looking forward.

Dahlia

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From: Paul Clement

Posted Friday, June 24, 2011, at 7:22 AM

ET

Thank you both for inviting me back. I

was really looking forward to an end-ofterm

discussion without the distractions

of the World Cup and a confirmation

hearing. The only thing that seems to be

missing is an end-of-term blockbuster or

two, as we are used to seeing this time of

year. Instead of anticipating war-onterror

decisions balancing liberty and

security, or landmark Second Amendment

cases, we are waiting for violent video

games. An important decision, to be

sure—especially for 16-year-old

gamers—but not exactly Citizens UnitedII

.

There is a silver lining to all this, which

is that it gives us a chance to talk about

some of the cases that are much more

typical of the court's day-to-day work.

Dahlia wrote a great piece a few years

ago arguing that the court was making a

real mistake by releasing the same-day

audio of only a handful of very highprofile

cases. By giving the public a

window only into the most divisive and

controversial cases, the court risked

having people fail to appreciate that in a

significant number of cases, the justices

are often in violent agreement all across

the bench. The cases at the end of any

term, including this one, tend not to be

unanimous (those cases were decided

weeks or months ago), but this year's

crop is fairly representative of the court's

docket.

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Sometimes the End-of-Term Drama Obscures the Truth

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Criminal cases make up a big part of that

docket. And despite a widespread public

perception that those cases feature the

law-and-order conservatives arrayed

against the let-'em-loose liberals, the

reality is—as Dahlia just pointed out—

much more nuanced. Indeed, most of the

path-breaking pro-defendant precedents

of late have come from the legalist (as

opposed to pragmatist) majority you've

both identified, which includes Justices

Antonin Scalia and Clarence Thomas

leading the charge for the rights of

criminal defendants.

One important area where this split has

produced a major revolution in criminal

law is in sentencing. The unusual

pragmatist majority found a quirky New

Jersey statute unconstitutional in an

end-of-term sleeper a few years back

called Apprendi v. New Jersey. No one

paid too much attention at first, and yet

within a few years the entire federal

sentencing regime was declared

unconstitutional. I do not think that

today's confrontation clause decision in

Bullcoming will be quite that

consequential, but Dahlia is right to

focus on what it tells us about the

newest Justices' approach to this issue

and the law more generally. This is

hardly the only context in which the

legalist/pragmatist divide is important.

And whatever else is true of either side's

vetting process, I rather doubt anyone

has identified the Confrontation Clause

as a litmus test for potential Supreme

Court nominees. For that reason, it is

remarkable that all four of the newest

Justices cast the same votes as we would

have expected from the Justices they

replaced. On the other hand, if you read

this decision side-by-side with the

Michigan v. Bryant case, it seems as if the

newest justices—at least, Justice

Sotomayor (Justice Kagan was recused in

Bryant)—may not have quite the same

dedication to the purely legalist view of

the confrontation clause as Justices

Stevens and Souter. It is too early for

labels, but could we have some fainthearted

legalists on the court? If so, it is

bad news for criminal defendants,

because all of the sentencing cases and

some of the confrontation cases have

been 5-4. Losing just one justice to the

charms of pragmatism could make all the

difference.

Let me change gears and mention just

one other case that would have gotten

lost amid the blockbusters in most

terms—this is the data-mining case,

Sorrell v. IMS Health. By a 6-3 vote, the

court struck down a Vermont statute that

restricted the ability of pharmacists to

sell information about which doctors are

prescribing which drugs to

pharmaceutical companies for the latter

to use for marketing. The information at

issue is generated as an inevitable

byproduct of pharmacists complying

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with the laws governing the filling of

prescriptions. A single datum is pretty

uninteresting, but, as is so often this case

with information in our Internet age, if

you aggregate all the data, you have

something with considerable commercial

value.

The fatal problem with the Vermont

statute in the majority's eyes was that it

distinguished among speakers when it

came to the use of the aggregated data. If

you want to use it for health research,

there are no restrictions. If you want to

use it for marketing brand-name

pharmaceuticals, it is a different matter.

That kind of discrimination among

speakers is generally a First Amendment

taboo, at least if you are in the realm of a

pure First Amendment case. The

dissenters focused on the facts that the

case involved data that only existed as a

byproduct of government regulation and

that the statute reached only commercial

speech.

I find three aspects of this case

interesting. The first is the lineup. Justice

Sotomayor joined with the more

conservative justices to form a six-justice

majority. That makes this one of the

relatively few cases in Justice Kagan's

first term in which she parted company

with Justice Sotomayor. The chief justice,

John Roberts, and Justice Samuel Alito

clearly have distinct views of the First

Amendment. When the chief justice

issues a major First Amendment case,

chances are Justice Alito will issue a

separate opinion advancing a distinct

view. Sometimes Justice Alito's view is

less protective of free speech, as was the

case in this term's funeral-protest case,

but other times he has the more

protective view, as in the "bong hits 4

Jesus" case. It is way too early to tell, but

it would be interesting to see significant

differences emerge from the two

nominees of President Obama when it

comes to the First Amendment.

Second, this case confirms my sense that

when it comes to First Amendment cases,

the key for the party carrying the First

Amendment banner is to convince the

court that the case is a real or pure First

Amendment case. If you can do that, it

does not matter how vile the message on

your banner or how many small animals

you crush; your argument will prevail. On

the other hand, if the government

convinces the court that because the case

involves government speech or public

employers or school discipline it is not a

pure First Amendment case, then the

government is likely to carry the day.

Finally, this case is fascinating because it

raised without resolving the unique

impact that aggregating vast amounts of

information has on traditional notions of

"privacy." I put "privacy" in quotes

because I am not sure our traditional

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conception of privacy really captures

what is going on when technology allows

the aggregation or mass distribution of

actions that are not strictly private in the

traditional sense. If I shop in a brickand-

mortar store or sign a petition on

the sidewalk or have a prescription filled

at the drug store, those seem like public

actions. But allow someone to aggregate

all those actions or post them on the

Web, and the dynamic changes. The

Court touched on these issues in the

petition case last term and in today's

opinion, but I am guessing it will have to

dig deeper into these issues in the years

to come. Maybe I just have my rosecolored

glasses on, but some of today's

cases are more interesting and perhaps

more important than at first blush. Do

you agree?

Best,

Paul

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From: Walter Dellinger

To: Paul Clement and Dahlia Lithwick

Posted Friday, June 24, 2011, at 4:29 PM

ET

Dahlia and Paul—

I'm not feeling particularly

Confrontational, so I won't criticize

anything either of you has said about

Bullcoming. I agree that the case may

have taught us something about Justice

Sonia Sotomayor. When her nomination

was pending before the Senate, a

common observation was that having her

replace Justice David Souter might move

the court a bit to the right on criminal

justice issues. The thinking was that her

prior experience as a prosecutor and trial

court judge would make her more

sympathetic to the practical necessities

of law enforcement than was the case

with her more bookish predecessor. Well,

so far that doesn't seem to be the case.

In Bullcoming, Sotomayor spurned the

"pragmatic" justices who argued that it

wasn't practical or realistic in thousands

of cases to have the particular technician

who peered at the blood smear and ran

the numbers actually show up in court.

Instead she cast her lot with the

"legalist" justices (Scalia, Thomas,

Ginsburg, and now Kagan) who argued

that the Confrontation Clause means

what it says when it says "the accused

shall enjoy the right … to be confronted

with the witnesses against him." It

doesn't say, "… or with the witness'

supervisor or co-worker."

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What Do Criminal Defendants Really "Enjoy"?

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Sotomayor was, as Paul noted, "on the

other side" earlier this term in Michigan

v. Bryant, where she wrote the decision

defending a prosecutor's use of a dead

man's tale against a defendant who

obviously couldn't confront him, at least

not in this lifetime. I was surprised that

she didn't follow Bryant by

accommodating the burden on law

enforcement in Bullcoming. I guess we

will have to wait until next term to see if

she is really more pragmatic than Souter

was.

A curious side question about

constitutional word choice: Does it seem

odd to you that the Sixth Amendment

says that a criminal accused shall "enjoy"

the right to confront witnesses? I can

understand being grateful for the

opportunity to cross-examine. But I'm

not sure I'd really "enjoy" anything about

being a criminal defendant. They must

have been hard-pressed for things to

"enjoy" in 1791. Otherwise, what was

Madison thinking?

I want to address soon one recurring

theme of this term: the number of

opinions that are really about the role of

courts. Maybe I'll try to write something

about that over the weekend before we

get caught up in next week's cases.

Walter

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From: Dahlia Lithwick

Posted Monday, June 27, 2011, at 10:03

AM ET

This morning is most likely the last of

the term, and as we wait for the final

four decisions to come down, I find

myself wondering what Justice Sam Alito

will do in his dissent—and I assume it

will be a dissent—in the California

violent video games case. As you will

recall, when the state of California tried

to ban the sale of violent video games to

children under 18, the question for the

court became whether such games

represent protected free speech. It was

immediately clear at oral argument that

Justice Alito—the lone dissenter in last

year's U.S. v. Stevens, affording

constitutional protection to depictions of

graphic animal cruelty—wouldn't protect

these games either. Moreover, as he made

clear at oral argument in the case, he has

no reason to believe that the Framers

would have envisioned protecting them.

As he explained it, "We have here a new

medium that cannot possibly have been

envisioned at the time when the First

Amendment was ratified. It is totally

different from [print]. ... One of these

video games is promoted, "What's black

and white and red all over? Perhaps the

answer could include disposing of your

enemies in a meat grinder."

This of course led to one of the most

arresting moments of the whole term, in

which Alito scoffed at Justice Antonin

Scalia's originalist argument that while

the Framers would not have included

obscenity in their understanding of

protected free speech, they most certainly

didn't envision a prohibition on violent

speech when they ratified the First

Amendment. Alito's critique of this line

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Supreme Court Year in Review

What's the Originalist Stance on the V-Chip Again?

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of reasoning at oral argument was this: "I

think what Justice Scalia wants to know

is what James Madison thought about

video games. Did he enjoy them?" To

which Scalia, brusquely replied, ""No, I

want to know what James Madison

thought about violence."

Your post Friday, Walter, on whether the

Framers really believed a criminal

defendant might "enjoy" cross-examining

the witnesses against him, reminded me

that I spent some time after that colloquy

trying to figure out exactly what James

Madison really would have thought of

Mortal Kombat, Postal 2, Thrill Kill, and

even Grand Theft Auto (or, at Stanford

Professor Pam Karlan's suggestion, Grand

Theft Horse and Buggy). Nothing to be

found on any of these games, Angry

Birds, or even the idea of the idea of

these games in the Federalist Papers,

which may serve to explain why the

opinions in this case have taken so long

to produce. There is a wonderful old

rabbinic story about Moses paying a visit

to a very famous academy at which the

Torah was being taught, centuries after

his death. The upshot is that Moses

couldn't figure out what was going on in

the lesson, even though it was he who

had been given the Torah in the first

place. That's always the story that comes

to mind when I imagine James Madison

eavesdropping on an earnest

conversation about whether working

mothers can adequately supervise the

video gaming habits of their young

children in the absence—as Justice

Kennedy noted at oral argument—of the

television V-chip. Who knows what the

Framers would have thought of any of

this?

The legal news this weekend included

New York's decision to legalize gay

marriage, Chief Justice John Robert's

objections to putting cameras into the

courtroom; disputed reports of fisticuffs

at the Wisconsin Supreme Court, and

reports of increasingly draconian state

abortion regulations. Whatever the

Framers would have done with any of

these questions is almost absurd to try to

imagine. Well, maybe not the fisticuffs.

Looking forward to your thoughts on

today's decisions.

Yours,

Dahlia

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From: Walter Dellinger

Posted Monday, June 27, 2011, at 10:51

AM ET

Dear Dahlia and Paul:

As we head in to the final week of the

term, it is striking how the debate over

constitutional and other legal issues

continues to be centered at places other

than the Supreme Court. On Tuesday

morning, the Senate Foreign Relations

Committee will hear State Department

Legal Advisor Harold H. Koh defend the

proposition that the U.S. military

operations in Libya are something other

than "hostilities" triggering the War

Powers Resolution. (Steven Colbert's faux

defense of the administration's position

is that the actions are not "hostilities"

but merely "laser-guided constructive

criticism" or a "heavily-armed semester

abroad.") I predict that Koh will make a

better case for the administration's

position than critics expect.

The issues of gay marriage and religious

liberty are also being debated outside the

courts. This past weekend began with the

New York Senate making that state the

most populous to extend the right to

marry to same-sex couples. Much of the

final debate concerned amendments

designed to protect the freedom of

religions that object to gay marriage.

That discussion seemed to go off the

logic track at certain points.

Archbishop Timothy Dolan, criticizing

the new law as an "attempt to redefine

the sacred institution of marriage," said

that "Marriage has always been, is now,

and always will be the union of one man

and one woman. Government does not

have the authority to change this most

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Supreme Court Year in Review

Will the New York Legislature's Decision on Gay Marriage Affect the Supreme Court?

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basic of truths." The archbishop is surely

right that government "does not have the

authority to change" "the sacred

institution" of marriage. But that is not

what the New York Legislature did. The

Catholic sacrament of marriage properly

remains exclusively for the Catholic

Church to define for itself and leaves

that church entirely free to limit its

marriages to opposite-sex couples.

This distinction between the Catholic

Church's (unchanged) sacrament and the

(newly revised) civil law is highlighted by

the archbishop's truncated definition of

the Catholic sacrament of marriage as

"the union of one man and one woman."

That definition is incomplete. The

Catholic sacrament of marriage is

actually "the union of one man and one

woman, neither of whom has previously

been married to a person who is still

alive." When New York long ago decided

to allow divorced people to obtained civil

marriage licenses, that did not change

the fact that they were and still are

ineligible for the sacrament of marriage

within the Catholic Church. The Bishop's

misleading suggestion is thus not about

protecting the church's complete

autonomy over its own sacrament of

marriage (which rightly remains

unimpaired) but is instead an effort to

extend one religion's definition of its

own sacrament to those who are outside

that religious community. That is not a

constitutional value.

Does the New York Legislature's action

change the calculus on how the Supreme

Court may ultimately rule on whether

same-sex couples in more conservative

states have a constitutional right to

marry? I would think it might. One of the

greatest influences on any culture is the

"normative power of the actual" (a phrase

I once heard from the late Yale Law

Professor Charles L. Black, Jr.). The more

common gay marriage becomes, the more

hollow the defenses offered by states

responding to constitutional challenges

by gay couples wanting to marry will

sound. I suggested in our 2009

discussion that Justice David Souter's

last opinion on the court contained a

thinly veiled warning against bringing

this issue too quickly to the Supreme

Court. The right time may be coming

sooner than he could have realized.

I look forward to hearing what you all

think about this morning's cases.

Walter

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From: Paul Clement

Posted Monday, June 27, 2011, at 1:49 PM

ET

Dahlia and Walter,

Of today's opinions, I am guessing most

of the attention will be focused on the

video games opinion and the fact that

despite Justice Clarence Thomas' view in

dissent, James Madison was apparently

untroubled by teenagers gunning down

zombies. A particularly violent version of

Call of Duty set in the Revolutionary War

context now seems inevitable. I will have

more to say later on that and the lineup

of justices—Stephen Breyer and Thomas

flanking Samuel Alito. But for now I

wanted to share a few thoughts about

today's other First Amendment ruling,

the court's latest word on campaign

finance.

To no one's great surprise, the court

invalidated Arizona's public financing

system by a 5-4 vote, with Chief Justice

John Roberts writing for the majority.

Some oral arguments are difficult to call,

with the justices holding their cards

close to the vest. In others, like this one,

the outcome seems pretty clear based on

past votes and statements at oral

argument. The recent precedent that

loomed largest here was a case I argued

as solicitor general, Davis v. FEC,

involving the so-called "millionaire's

amendment." If ever there were a

campaign finance law that even the

court's campaign-finance skeptics

should have loved, it was the

millionaire's amendment. It actually

raised the contribution limits for

candidates facing a self-financed

opponent spending lavishly on his or her

own campaign. You would think a court

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Is the Court Energized by Its Critics?

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skeptical of campaign-finance

restrictions would applaud the lifting of

the limits. Not so. Instead, the court

focused on the perspective of the selffinanced

candidate and viewed the

relaxation of the opponent's contribution

limits as a penalty on the self-financed

candidate's spending above the

triggering amount. Because the majority

views such spending as speech, the law

was viewed as a penalty on speech and

struck down.

As long as the court viewed Arizona's

public-financing scheme from the same

perspective—that of the nonparticipating

candidate—the defenders of Arizona's

law never had much of a chance. If

raising an opponent's contribution limits

was too much of a penalty, surely giving

the opponent additional public financing

would be even worse. A candidate given a

choice between giving an opponent the

possibility of raising additional funds

through increased contribution limits or

the guarantee of additional funds

without any additional fundraising

efforts would obviously prefer the former.

The challenge in defending the law was

to get the court to shift its perspective

and consider the ex-ante perspective of

candidates deciding initially whether to

participate in a public financing system

(since there is no obvious analog in the

millionaire's context).

The majority was not inclined to change

its perspective. The same five justices

who struck down the millionaire's

amendment, not to mention forming the

majority in Citizens United, stuck

together and invalidated Arizona's public

financing scheme.

Today's decision reaffirms the nowundeniable

reality that there are five very

solid votes to examine any campaign

finance law—with the possible exception

of disclosure laws—with great

skepticism. There are many areas of the

law where Justice Anthony Kennedy is

viewed as a swing justice. This is not one

of them. As the video-game decision also

confirms, when Kennedy views a case as

a pure First Amendment case, he is as

strong a proponent of the First

Amendment as you will find. And he

clearly views the campaign finance cases

as pure First Amendment cases about the

government regulating core political

speech.

Because the majority opinion did not

come as a great surprise, the real story

may be the dissent, written by Justice

Elena Kagan. While the newest justice

argued ably in defense of campaign

finance laws in Citizens United, this was

her first chance to cast a vote in a

campaign-finance case, and she not only

cast a vote but wrote the dissent. And

this is not a mere technical dissent

taking issue with the majority's

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reasoning at the margins. The dissent

covers 32 pages, traces the origins of p

ublic financing to Theodore Roosevelt,

and reflects a very different

understanding of the First Amendment's

role in campaign finance relative to the

majority. Where the court sees a grave

First Amendment problem, the dissent

sees a suit that "may merit less attention

than any challenge to a speech subsidy

ever seen in this Court." The majority

views a nonparticipating candidate's

complaint that his or her additional

spending triggers new public money for

opponents as meritorious, for example.

The dissent labels this complaint

"chutzpah."

It seems then, that 5-4 divisions over

campaign finance laws are here to stay.

The two newest justices—Kagan and

Sonia Sotomayor—are passionate

defenders of such laws. The majority, on

the other hand, seems undeterred by

criticism directed at Citizens United. The

court's majority opinion closes by noting

that the wisdom of campaign-finance

reforms is not its business, but

determining whether those laws comply

with the First Amendment "is very much

our business." Roberts brushed aside the

dissent's concern about the will of the

Arizona voters by embracing the First

Amendment as a great countermajoritarian

guarantee. In enforcing such

a provision, he seems to expect criticism

from the majority.

In sum, the majority seems undeterred,

maybe even energized, by criticism of its

First Amendment holdings in the

campaign-finance realm. The dissenters

seem equally resolute. Whatever shifting

alliances we may see on video games or

restrictions on data mining, the 5-4 split

on campaign finance seems here to stay.

Do either of you have a different take, or

are you out celebrating your

constitutional right to sell violent video

games to minors?

Paul

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From: Walter Dellinger

Posted Monday, June 27, 2011, at 2:31 PM

ET

While you all are dissecting today's

opinions, I've been looking at the "orders

list." The court announced today that

next term it would hear and decide

United States v. Jones, a case asking

whether the warrantless tracking of

vehicles by GPS devices violates the

Fourth Amendment. (I should note that

I'm working on the case with my former

student Stephen Leckar of Shainis &

Peltzman, who is counsel of record for

Antoine Jones.)

Federal law enforcement officials

installed a "global positioning system"

device to track every movement Jones, his

wife, and his son made in their vehicle

for 24 hours of every day for four weeks.

The Court of Appeals for the District of

Columbia determined that this intensive

monitoring of Jones' movements for an

extended period of time invaded his

reasonable expectation of privacy and

thus constituted a search under the

Fourth Amendment. Because the

government had no valid warrant (and

made no showing that the search was

reasonable without a warrant) the Court

of Appeals reversed Jones' conviction on

drug charges.

In its petition asking the Supreme Court

to review the case, the solicitor general

stated that federal law enforcement

agencies "frequently use" GPS tracking

devices to follow "leads and tips before

suspicions have ripened into probable

cause." A requirement that a warrant be

obtained from a magistrate before

tracking an individual, the government

argued, "will seriously impede criminal

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The Court Agrees to Hear a Case About Warrantless GPS Tracking on Cars

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investigations" in "many scenarios."

The solicitor general's petition focused

on the holding of the court below that

the tracking violated the Fourth

Amendment. While we opposed any

review of the decision below, we also

suggested to the court that if it granted

the government's petition, it should also

address an additional question: whether

the installation of the GPS device on

Jones' car was itself a violation of the

Fourth Amendment. As Judge Kavanaugh

said in a concurring opinion in the Court o

f Appeals, this "property-based Fourth

Amendment argument" raises "an

important and close question." The

Supreme Court granted this second

question as well, so next term it will be

deciding the conceptually separate

questions of: 1) whether a warrant is

required for the actual secret installation

of a GPS device on a person's automobile;

and 2) whether a warrant is required for

the extended GPS tracking of a person's

movements in a vehicle.

The grant of review in this case sets the

stage for an extraordinary encounter

between the constitutional right against

unreasonable searches adopted at the

end of the 18th century and the amazing

technology of the 21st century. The

"Navigational Satellite Timing and

Ranging Global Positioning System" was

developed in 1978 by the Department of

Defense for military use. In 2000, the

government decided to make accurate

transmissions available for civilian use.

And this led, inexorably, to the

widespread use of GPS devices in

investigations. As my co-counsel Steve

Leckar noted in a statement today, "there

is nothing inherently wrong with

deploying these devices to assist law

enforcement. On the other hand, no one

can dispute that they are extraordinarily

intrusive." The issue is not whether GPS

devices can be used by law enforcement,

but whether there should generally be the

age-old check of an independent

magistrate deciding whether the search is

justified before such a space-age

intrusion takes place.

I'm tracking your progress now. How are

you coming on analyzing this morning's

opinions?

Walter

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From: Dahlia Lithwick

To: Paul Clement and Walter Dellinger

Posted Monday, June 27, 2011, at 3:04 PM

ET

Dear Walter and Paul:

Well, I was wrong about the originalist

dissenter this morning, and also wrong

about the nature of the originalist

dissent. It wasn't Samuel Alito voting to

uphold the California ban on the sale of

violent video games to minors—it was

Clarence Thomas. (Justice Stephen Breyer

dissented separately, but not on

originalist grounds.) And the problem

wasn't that Thomas Jefferson didn't have

an Xbox. Instead, responding to Justice

Antonin Scalia's majority opinion finding

that such games represent speech

protected by the First Amendment,

Thomas dissented on originalist, First

Amendment parenting grounds.

As Thomas explains at great length

today, "The practices and beliefs of the

founding generation establish that 'the

freedom of speech,' as originally

understood, does not include a right to

speak to minors (or a right of minors to

access speech) without going through the

minors' parents or guardians." In other

words, Thomas would uphold the

California ban because the Framers never

intended to protect "speech to minor

children bypassing their parents."

And then, like a nostalgic colonial

version of Michael Chabon, Thomas

launches into what is surely one of the

oddest, most discursive examinations of

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Clarence Thomas on Parenting: Blessings of a Skinned Bottom

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the Joys of Puritanical Parenting. He

scoots across the centuries, from the late

1600s in "the New England Colonies,

[where] fathers ruled families with

absolute authority," to late 18th-century

Monticello, where Thomas Jefferson told

his daughters how to dress. "The

Puritans rejected many customs, such as

godparenthood, that they considered

inconsistent with the patriarchal

structure," Thomas notes. He observes

that colonial parents were warned not to

"let their children read 'vain Books,

profane Ballads, and filthy Songs' or

'fond and amorous Romances, …

fabulous Histories of Giants, the bombast

Achievements of Knight Errantry, and the

like.' " He notes, further, that in colonial

Massachusetts, "a 'son' of 16 years or

more committed a capital offense if he

disobeyed 'the voice of his Father, or the

voice of his Mother.' " With a nod to

Locke and Rousseau and changing views

of parenting, Thomas observes that John

Adams, Noah Webster, Gouvernor Morris,

Sir William Blackstone, and others were

adamant that the pliability of the

youthful mind required vigilance in the

upbringing of one's children, and that

this imperative was impressed upon the

Founders. He notes, I suppose with

approval, Thomas Jefferson's bossy and

controlling letters to his daughters. He

describes early school textbooks

containing "vignettes illustrating the

consequences of disobedience," including

one called "Pictures of the Vicious

ultimately overcome by misery and

shame," and a treatise from 1848 warning

that the "number of children who die

from the effects of disobedience to their

parents is very large." (I am going to go

out on a limb here and guess that—title

notwithstanding—Thomas' Snowsuit is

not on the justice's list of childhood

classics.) Indeed were it not for the

obscenity bit, Thomas might even be

willing to blurb the wildly popular new

children's book, Go the F*** to Sleep.

Thomas details briefly the rights of the

colonial child (short version: Daddy

Owns You) and then concludes that "[i]n

light of this history, the Framers could

not possibly have understood 'the

freedom of speech' to include an

unqualified right to speak to minors." In

his view, such speech has "been

historically unprotected [and has] not yet

been specifically identified or discussed

as such in our case law." Unlike Scalia,

who isn't inclined to create new

classifications of unprotected speech,

Thomas wants to reach back through the

centuries and restore an old one: the

right to have nobody else speak to your

child. In Thomas' view, since the

California law doesn't preclude a parent

or guardian from buying their child a

violent video game, the law serves only to

ensure that sellers cannot bypass a

parent by selling to the child without

parental consent.

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Scalia dismisses most of Thomas'

argument in a terse footnote in his

majority opinion. Thomas' stated new

rule, he writes, amounts to denying "that

persons under 18 have any constitutional

right to speak or be spoken to without

their parents' consent." Scalia adds that

Thomas "cites no case, state or federal

supporting this view, and to our

knowledge there is none." Scalia agrees

with Thomas that parents have had

broad authority to control their children,

but "it does not follow that the state has

the power to prevent children from

hearing or saying anything without their

parents' prior consent." If Thomas' views

were to prevail, writes Scalia, children

could not be solicited to attend rallies or

church services unless their parents

agreed. The speech aspects of this case

are interesting, yes, but not half as

interesting as the debate over the rights

of children versus parents versus the

state.

Paul, you noted in your excellent post on

the Arizona public-financing case that

"the majority seems undeterred, maybe

even energized, by criticism of its First

Amendment holdings in the campaignfinance

realm." I think that's right. So

too, I think that Thomas is often

energized by his culture-war critics, and

this kind of visceral longing for the days

of spare-the-rod is a good example of it.

I am not sure what this walk down

scary-memory lane adds to his dissent or

to the doctrine. It reads a bit like

"Blessings of a Skinned Bottom"—just to

elicit the wrath of the New York Times'

parenting set.

I have more to say in response to your

post on Elena Kagan's dissent in the

Arizona case, but I as I haven't yet

mastered reading and typing at the same

time, it will have to wait.

Dahlia

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From: Walter Dellinger

Posted Monday, June 27, 2011, at 5:28 PM

ET

I can't remember two dissenting opinions

reaching the same result that are more

different that the video games dissents

of Justices Stephen Breyer and Clarence

Thomas. Justice Breyer appeals to the

views of the current academic experts on

the psychological harm resulting from

playing video games. Justices Thomas

appeals to the views of the experts of the

17th and 18th centuries who believed, as

Dahlia notes, in strong parental control.

There is almost no overlap in the

reasoning of these two opinions, each of

which nevertheless argues for reversal of

the decision below.

I think that there is a lot to be said for

Justice Thomas' notion in the violent

video games case that the freedom of

speech "as originally understood" did not

include "a right to speak to minors (or a

right of minors to access speech) without

going through the minors' parents or

guardians." At least, it seems to me that

he focuses on the right question: The

issue is not whether minors can have

access to this violence, but whether

merchants can sell to them without the a

dvance permission of their parents. It's

important to understand, as Justice Alito

recounts in his concurrence, just how

horrible some of these games are:

Children are allowed to guide figures

through games whose purposes range

from the rape of Native American women

to killing as many African-Americans, or

Latinos, or Jews as possible; to putting a

bullet into President John F. Kennedy's

head; to re-enacting the Columbine

killings; to pretending to maim and kill

suffering people who are begging for

mercy. My God.

The truly horrible nature of the video

games in question makes me wonder

whether states could establish some age

at which merchants could be forbidden

to sell this stuff directly to children. Is a

state really precluded from saying that a

merchant cannot sell a video game that

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If Violent Video Games Are OK, Are Contraception Videos, Too?

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involves visual enactment of violent rape

to children under 8 without their

parents' consent? Under 6? If that is the

First Amendment answer, could states

respond by setting some age below which

merchants could not sell any product

(yes, it would have to include even a

Mother's Day present) to a very young

minor without permission of the child's

parents? Such a law would not single out

speech activities and thus arguably

would be neutral and thus permissible

under the First Amendment.

Not a single Justice joins Justice Thomas'

parental control opinion. The majority,

speaking through Justice Antonin Scalia,

in fact strongly rejects Thomas' argument

that "the state has no power to prevent

children from hearing or saying anything

without their parents' prior consent."

Justice Scalia's majority opinion notes

that Thomas' concept of parental control

would free states to enact laws making it

a crime to admit minors to a political

rally without the prior written consent of

a parent, even if the rally supported laws

against corporal punishment of children.

Other horrors the majority imagines

could include laws against giving a

person under 18 a religious tract without

prior parental consent.

I agree that the First Amendment should

preclude such laws. But it is interesting

to note that Justice Scalia's majority

opinion does not mention other laws that

would actually be more likely to be e

nacted by some jurisdictions—namely,

laws that limit the access of minors to

information about contraception and

abortion. But no matter that they go

unmentioned. The majority opinion is so

unequivocal about the First Amendment

right of minors to gain access to

information without parental

involvement that this decision surely

provides firm support for the right of

minors to information about their

reproductive options. If I'm right, that is

an important (and in my view, positive)

development.

Best,

Walter

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From: Dahlia Lithwick

Posted Monday, June 27, 2011, at 6:17 PM

ET

Dear Paul and Walter,

I wanted to follow up briefly on Paul's

posting about McComish, the Arizona

public financing case, and Walter's post

on GPS surveillance. Because I can't help

but notice that once again this term ends

with a big ideology-defying rupture on

the court over questions of technology

and the Constitution. I am fascinated by

the ways in which new technology is

always being used, evaluated, and also

shunned by the court as needed.

Start with a footnote: In Chief Justice

John Roberts' discussion over whether

the Arizona "clean elections" law at issue

in McComish was an effort to "level the

playing field" or "combat corruption," he

deploys technology in a way that's worth

contemplating. Noting that the court has

"repeatedly rejected the argument that

the government has a compelling state

interest in "leveling the playing field"

that permit undue burdens on political

speech," the chief justice then busts the

state of Arizona for tweaking its website

after oral argument. As Richard Hasen

was quick to notice, Roberts points out in

a footnote: "Prior to oral argument in this

case, the Citizens Clean Elections

Commission's Web site stated that 'The

Citizens Clean Elections Act was passed

by the people of Arizona in 1998 to level

the playing field when it comes to

running for office.' The Web site now

says that 'The Citizens Clean Elections

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When Supreme Court Justices Go Online

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Act was passed by the people of Arizona

in 1998 to restore citizen participation

and confidence in our political system.'"

I'm not sure if that's the first time a

Supreme Court justice has called out a

party for altering their website after oral

argument, but it sure goes to show how

much fun a jurist can have with a sharpeyed

clerk and a reliable Internet

connection.

Then there's Justice Samuel Alito,

concurring in the violent video games

case this morning, who reveals himself to

be incredibly savvy about the rapidly

evolving technology of violent games. He

writes: "Today's most advanced video

games create realistic alternative worlds

in which millions of players immerse

themselves for hours on end. These

games feature visual imagery and sounds

that are strikingly realistic, and in the

near future video-game graphics may be

virtually indistinguishable from actual

video footage. Many of the games already

on the market can produce high

definition images, and it is predicted

that it will not be long before video-game

images will be seen in three dimensions.

It is also forecast that video games will

soon provide sensory feedback." Alito

notes that the day is coming in which

"virtual reality shoot-'em-ups" will allow

children to "'actually feel the splatting

blood from the blown-off head'" of a

victim." And he concludes that because

new technologies present new

possibilities for different kinds of harm

to minors, he believes that "The Court

acts prematurely in dismissing this

possibility out of hand." Here is Alito

fully immersing himself in new

technologies and also warning the court

that it's too early to understand where

those technologies are headed.

Justice Antonin Scalia pokes fun at

Alito's extra-credit dabbling, writing that

he "has done considerable independent

research to identify video games in which

"the violence is astounding," but he sees

no point to any of it. In Scalia's view, the

technology is irrelevant, and the same

arguments being leveled at video games

were once leveled at comic books. Just

because technology is morphing doesn't

mean the First Amendment ought to.

Which brings us to Justice Stephen

Breyer's dissent in the same case, citing

many, many studies showing that

"virtual violence in video game playing

results in those neural patterns that are

considered characteristic for aggressive

cognition and behavior." But—again

proving that new technology is also his

friend—Breyer also offers the first

citation in Supreme Court history,

according to the keen eyes of Josh

Blackman, to a YouTube video.

Between Doe v. Reed, the Phelps case, and

today's opinions, it's clear to me that

Breyer, Alito, and Thomas have become

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the court's strongest proponents of the

idea that new technology is so radically

different (mostly in bad ways) that First

Amendment rules need to be revisited.

It's completely fascinating to watch them

deploy new technologies to prove that

very point. Breyer is often the first to

admit that courts don't always

understand new things (although Roberts

said the same this past weekend), but it's

hard not to look at the ways these

justices both talk about and use evolving

technologies as proof that—as Homer

Simpson once said of alcohol—it is both

the cause of, and solution to, all of our

problems.

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From: Paul Clement

Posted Tuesday, June 28, 2011, at 10:16

AM ET

Both of your posts about new technology

and the courts raise some very

interesting issues. On the one hand, I say

hooray for new technology, for without

these new technologies, I wonder what

the Supreme Court would have to decide.

As we have all remarked, this last term

was not exactly chock full of blockbuster

opinions. Without violent video games,

yesterday would have been the sleepiest

last day of a term in recent memory. And

although there are some fascinating

issues looming on the horizon, the GPS

case certainly adds some interest to the

cases waiting for the justices in the fall.

At least superficially, the GPS case

reminds me of the Kyllo v. United States

case from a decade ago. That case

involved the question of whether the

government's use of new technology

unknown to the framers—in this case a

thermal imaging device—violated the

Fourth Amendment. In Kyllo, the court in

a 5-4 decision written by Justice Scalia

for an unusual coalition of five justices,

found the new technology violated the

old Fourth Amendment. In that context,

at least, Justice Scalia writing for the

court felt that the Constitution had to

keep up with the times.

I am not suggesting that Kyllo prefigures

either Justice Scalia's or the court's

approach to the GPS case, but it is an

interesting counterpoint to Justice

Scalia's majority opinion today in the

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Supreme Court Year in Review

Will New Technology Push the Court Toward a More Libertarian Balance?

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video game case. In the context of the

First Amendment, Justice Scalia

contended that the important protections

of the First Amendment transcended

changes in technology. The threat from

violent video games is no different in

kind from the threat from violent comic

books or violent stories in Dante written

in the days before comic book technology

was perfected.

At one level these decisions are in

complete accord: The underlying Fourth

Amendment value of freedom from

unreasonable searches of the home

transcends changes in technology and so

does the First Amendment value of

freedom from the government's effort to

limit what we view. But on the other

hand, the two decisions have very

different reactions based on whether the

new technology empowers the

government or individuals. The dissents

and concurrences in the video game are

full of concerns over the effect of this

new technology on children, and there is

a broad willingness to credit the

government's effort to blunt that effect.

The majority does not trust the

government to play that same role. In the

Fourth Amendment context, some

justices may be very suspicious of this

new technology in the government's

hands.

More broadly, the net effect of the court's

disparate reaction to new technology

may be to swing the constitutional

balance in a slightly more libertarian

direction. If the Fourth Amendment keeps

pace with new technology to ensure that

our reasonable expectations of privacy

are not diminished, while the First

Amendment allows us to use new

technologies to view all sorts of materials

in our homes without any corresponding

enhanced government ability to regulate,

then there is less of a role for government

regulation. Much of this may just be the

basic bargain struck by the framers in the

First and Fourth Amendments. But I do

think that technology's tendency to allow

us to bring transactions that used to take

place in the public square inside the

home also affects this dynamic and gives

the government less opportunity to

enforce communitarian values.

One final thought on Justice Thomas'

dissent in the video games case. His

dissent reminded me of nothing so much

as his separate opinion in the Bong Hits

4 Jesus case. In that solo opinion, he

argued for a return to the days when

First Amendment rights did indeed stop

at the schoolhouse gate and students

had no First Amendment right because

the schools acted in loco parentis and

parents had all the rights; students none.

That same notion resurfaces in his video

games dissent from yesterday, except this

time, the students have no rights on

either side of the schoolhouse gates.

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Dahlia is correct that Justice Thomas

does not seem to care whether any of his

colleagues share his view, but do either

of you think he will convince any of his

colleagues about this? It strikes me that

First Amendment rights are here to stay

both inside and outside schools.

Yours,

Paul

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From: Dahlia Lithwick

Posted Tuesday, June 28, 2011, at 1:17 PM

ET

Dear Walter and Paul:

Walter, I really appreciated your post on

whether the court's redoubled

commitment to a child's right to obtain

information—even over the objection of

her parents—might have implications for

information regarding reproductive

rights. Paul, you are right to say that

Justice Clarence Thomas stands alone, in

Bong Hits and again in Brown, when he

stands for the proposition that children

simply have no First Amendment rights,

at school or at home.

Still: I am trying to imagine five justices

agreeing to apply Justice Antonin Scalia's

analysis in yesterday's video-game case

to a safe-sex video—and I just can't get

there. We all agree that Scalia finds a

First Amendment right to bypass parents

when it comes to activity he can liken to

reading. Or political activity. Or church

attendance. I strongly suspect that for

the majority of this court, obtaining

information about reproductive freedom

is analogous to neither sneaking a peek

at Odysseus, nor slipping into a church.

This goes to Paul's nice point about how

unwanted information now infiltrates

the home in ways the Framers could

never have anticipated. No matter how

many colonial tracts about the perils of

witchcraft you may read to your children,

the days in which parents are the only,

or even the primary, gateway to their

information are gone. Also, we haven't

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Supreme Court Year in Review

Scalia and Kagan: The Court's Two Would-Be Bloggers

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really touched on Justice Stephen Breyer's

dissent beyond Walter's observation that

he is clearly writing for the social

scientists. He is right to point out that

the ways America's laws make no sense

when it comes to filtering sexual and

violent content for kids. But then I am

very, very Canadian in that regard.

There are so many other things we

haven't touched on and may not get to.

Paul, I agree that the startling part of the

Arizona case is clearly Elena Kagan's

dissent. I don't know what impact it will

have in the long term but can we agree

that she has Scalia's gift for writing like

a blogger—short crisp declarative

sentences that were supposed to have

been sandblasted away from three years

of law school? "This suit, in fact, may

merit less attention than any challenge

to a speech subsidy ever seen in this

Court. In the usual First Amendment

subsidy case, a person complains that

the government declined to finance his

speech, while bankrolling someone else's;

we must then decide whether the

government differentiated between these

speakers on a prohibited basis—because

it preferred one speaker's ideas to

another's. But the candidates bringing

this challenge do not make that claim—

because they were never denied a

subsidy."

I admit I am already a sucker for her

writing style, just as I have always been a

sucker for Scalia's. That said, it helps

that I agree with her on the merits. I see

no speech being suppressed in the

Arizona scheme. If the court had

somehow in their wisdom determined

that hair—as opposed to money—equals

speech, this would still just be a case

about guys who don't want to get

haircuts. Paul is right to say nobody is

going to change their minds on this issue

any time soon.

Before we sign off, I might ask whether

you think next term will be the term of

the century, with immigration reform,

and gay marriage, and individual

mandates all detonating at once? If so,

we should be doubly grateful for the

relatively quiet term that's just ended.

Either way I am hugely grateful that you

both agreed to spend the past few days

with us.

Yours,

Dahlia

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From: Paul Clement

To: Dahlia Lithwick and Walter Dellinger

Posted Tuesday, June 28, 2011, at 3:21 PM

ET

Dahlia and Walter,

Before we close out this year's Breakfast

Table discussion, I wanted to respond to

Walter's post about all the legal issues

being discussed outside the Supreme

Court—whether it is testimony about the

War Powers Act on the Hill or legal

changes at the state level—and Dahlia's

question about next term.

As to Walter's point that a Supreme

Court term that lacked any signature

cases stands in stark contrast with all

the intense legal discussions going on

outside the courts, I would only add that

somewhere, as he prepares for his

summer vacation, the chief justice is

smiling. The term just completed was

Chief Justice John Robert's sixth on the

court. Given how long the chief is likely

to serve, on most issues it is too early to

say anything terribly definitive about the

Roberts Court. From the perspective of

history, we are still looking at the early

returns. But the one trend that emerges

reasonably clearly is that, outside the

First Amendment context, the Roberts

Court prefers narrow, as-applied

challenges to broad, facial attacks on

statutes or policies. With some notable

exceptions, like Massachusetts v. EPA, the

Roberts Court has also limited standing

doctrines and raised pleading standards

so as to limit judicial controversies to

concrete, well-defined disputes. In other

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Supreme Court Year in Review

Why John Roberts Is Probably Smiling Right Now

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words, the fact that some of the pressing

legal disputes of the day are being

debated outside the courts is no accident.

That said, to answer Dahlia's question,

next term may look very different in this

regard, as a number of high-profile

issues seemed headed to the court. Walter

may have more to say on which issues

are likely to arrive when, but at a more

general level, I think two things are likely

to be true. First, one or more of the big

issues will arrive next term, such that a

year from now people may be lamenting

the court's decisions but not that it was

a relatively sleepy term. Second, I would

bet against all the cases arriving at once.

It certainly could happen, but litigation

has its own rhythms, and cases can take

unexpected turns. Take the Proposition 8

challenge, for example. When that case

was filed in federal court, few would

have foreseen a trip to the California

Supreme Court on a standing question.

And to tie these two threads together, the

more courts insist on turning square

corners and ensuring that only concrete

disputes are litigated, the more likely it is

for cases to get off the fast track to

Supreme Court resolution. But one way or

another—in one term or another—some

big cases are headed to the court and

destined to enliven the breakfast table.

Paul

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From: Walter Dellinger

To: Paul Clement and Dahlia Lithwick

Posted Tuesday, June 28, 2011, at 5:32 PM

ET

Dear Paul and Dahlia—

It is certainly possible that the Supreme

Court term that begins next October will

have an extraordinary number of highprofile

cases. Nominees for next term's

major cases could include the challenge

to the health care law; the Proposition 8

gay marriage case from California; the

constitutionality of the Defense of

Marriage Act; the most important of the

Arizona immigration control laws; and

the warrantless GPS monitoring case,

which the National Association of

Criminal Defense Lawyer has already

predicted will be the "the most important

privacy case since Katz v. United States,"

which was issued in 1967.

But as Paul notes, you never know. Many

a case that has been "headed for the

Supreme Court" has wound up headed to

the nearest exit. Of that list, the least

likely case to make it to the Supreme

Court is the appeal from Judge Vaughn

Walker's decision that gay couples in

California have a constitutional right to

marry. As I noted in Slate last year, that

case should never make it to the Supreme

Court because no affected party with

standing has chosen to appeal. And I

would not be shocked if the Supreme

Court took one or more of the challenges

to the health care law's "individual

mandate" but dismissed those cases on

the basis of one or more arguably serious

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Supreme Court Year in Review

Oh, the Cases We'll See

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jurisdictional flaws. The court would

eventually hear a challenge to the health

care law, but it would not be until some

taxpayer sought a refund in 2015 of the

2.5 percent penalty for not having

minimum health insurance coverage in

place when that requirement goes into

effect in 2014.

Of course, on standing I've always

thought it important that the court

decide constitutional issues only when

there is a real case involving real parties

with a real, legal stake in the outcome.

That is why I thought the court should

have used the opportunity it had this

term in Arizona Christian School Tuition

Organization v. Winnto overrule Flast v.

Cohen, a 1968 case that allowed a

taxpayer who had not a single penny of

tax liability at stake to challenge a

government expenditure supporting

religion. I have always thought Flast

wrongly decided, but I could understand

why those liberals who favored giving

courts more power to decide more cases

liked it back in the '60s. But I can't figure

out why those liberals find it desirable to

cling to Flast in an era of increasingly

conservative courts. As our look ahead to

next term suggests, there are good, solid

standing rules that could protect the

decision favoring gay marriage in

California, and put off a decision on the

health care law. But whichever way

strong standing rules cut, they are wise,

as I have said before, because they stand

for the proposition that courts get to

decide constitutional issues not because

they are special or better than anybody

else, but only because they have a job to

do—resolving actual cases—and applying

the law is necessary to that job. Respect

for good standing rules should create a

bit more humility about the courts'

proper role.

Well, judicial review lives on, so there will

likely be another Breakfast Table next

year. But until we see what cases the

court actually takes, we can't really know

how newsworthy next year's end-of-term

decisions will to be. Our editor, Michael

Newman, says it would be nice if the

Supreme Court would keep Slate's needs

in mind when shaping its docket.

Good point. Paul, I assume that you

would be the right person to convey that

thought to the chief justice, right?

Until next year,

Walter

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