Private: Transcript of ACS Supreme Court Review

Recently over 600 people packed the main ballroom at the National Press Club as The American Constitution Society's Washington, D.C. Lawyer Chapter hosted its annual Supreme Court Review, a discussion of the 2004-05 Supreme Court term by leading academics and practitioners, including former U.S. Solicitors General Drew Days, Professor of Law, Yale Law School and Morrison & Forster, and Seth Waxman, Wilmer Cutler Hale & Dorr; Preeta Bansal, Skadden Arps and former New York Solicitor General; Randy Barnett, Professor of Law, Boston University; Avis Buchanan, Director, Defender Service for the District of Columbia; Richard Lazarus, Professor of Law and Director, Supreme Court Institute, Georgetown University Law Center; Nina Pillard, Professor of Law, Georgetown University Law Center; Paul Smith, Jenner & Block; and Kathleen Sullivan, Professor of Law, Stanford Law School and Quinn Emanuel Urquhart Oliver & Hedges.
A transcript of the program is now available. Among the many highlights:
Kathleen Sullivan on the First Amendment:

Many people had thought that the First Amendment was becoming the new Lochner, a basis for challenging economic regulations in the name of freedom of speech. That claim has been advanced in certain of the advertising cases in which advertising is regulated. It was at issue in McCain-Feingold, the FEC v. McConnell decision. It's at issue in these compelled speech cases involving wealthy business interests. And the claim was the First Amendment, if it's allowed to be used for commercial speech protection or for the right to contribute to campaign finance, if the First Amendment is used for wealthy causes, it's not really serving as a charter of freedom of speech, so much as a charter of economic liberty, a kind of stealth Lochner via the back door, a way of getting strict scrutiny against economic regulations.

And that was really the tension in this Johanns v. Livestock Marketing case. Is the First Amendment being used as a wedge to go after economic regulation? And the Court says, we're not going to find a First Amendment violation here. This is effectively government speech. You have no right to withhold your tax money from government messages that you don't agree with. You have no right to, and the beef growers have no right to withhold their money from an advertising program that properly understood is really government speech.
Well, that doctrine has some dangerous implications, I think, if we expand the notion that everything supported through government, regulatory exemptions, or subsidies is government speech. We're in trouble and that might say something about the Solomon Amendment case that's teed up for next term. But I do think that just noting the muting of the Rehnquist revolution point that Nina made earlier, we have not seen the First Amendment delivered as a charter of economic liberty or free speech for rich people because Nike v. Kasky fizzles, McCain-Feingold is upheld against First Amendment challenge, and FEC v. McConnell, these cases with stone fruit plus beef, notwithstanding mushroom, suggest that you're not going to be able to use the First Amendment as a way to overturn a lot of agricultural marketing schemes. So the First Amendment as Lochner has not quite congealed any more than the liberty to resist public use has congealed in Kelo. So that's on the First Amendment.

Drew Days on civil rights:

I think overall it was a fairly good term for civil rights. There was certainly an expansion of the ability to bring certain civil rights actions under the Americans with Disabilities Act, Title IX, and the Americans with Disabilities Act. I think what's kind of interesting is that these are the children of the 1964 Civil Rights Act, and yet 40 years after the 1964 Civil Rights Act was passed, the Court is still struggling with some very basic issues that have to do with the implementation and enforcement of these other provisions.
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So I think one can say, with respect to many of these cases, what the Court has done is set out some broad standards, pushed back interpretations of the Act that would have curtailed quite dramatically further enforcement of those provisions, but it has left open - and I think in a problematic way, exactly how these new standards are going to be applied.
I wanted to say just one further word about the town of Castle Rock. That was of course a loss, but once again this is a standard claim that comes to the Court from time to time about either procedural due process or substantive due process, and I think it's fair to say that the Court is simply not interested in those arguments. It is not interested in allowing further access to the Courts on a variety of claims that they think are pushing the envelope with respect to constitutional law. It does, I think, merit pointing out that in the dissent - Justice Stevens' dissent - he pointed out something that has certainly been on the minds of members of Congress and elsewhere, that this was not just a question of a protective order; this was a protective order having to do with spousal abuse. It was an attempt by Colorado to go beyond what we normally think of the responsibility of law enforcement officials to do their jobs, to protect people from crime. And the majority was not moved by that argument. If we look at the Violence Against Women Act and a number of other things that have been going on, I think although this was a fairly predictable outcome, nevertheless, its notable because of the enormity of the crime committed by the ex-husband and the callous way in which the police department responded to this mother's cries for assistance that may have, had they been answered, saved the lives of three children.

Seth Waxman on the death penalty:

Well, I think they were both wonderful decisions. It's interesting because Miller-El has more enduring significance than Roper, although Roper has certainly got almost all the headlines this term. Miller-El was a very easy case to litigate this term and Roper was a very difficult case, but this was Miller-El's second trip to the Supreme Court. This was the Supreme Court's second decision in Miller-El. And the first time it was up it was a very, very difficult case. I mean, I think Miller-El is significant because the standard for determining or proving bias in the exercise of preemptory strikes has been set at least since the Supreme Court decided Batson v. Kentucky many years ago. The problem was, as Thurgood Marshall pointed out in his separate opinion is so long as you allow prosecutors to give any particular reason that they want and it's not manifestly implausible in individual cases, this guarantee of equal protection in the jury selection context is going to be a hollow guarantee.

And the problem was that Justice Marshall's predictions seemed to be borne out. That is, prosecutors and - you know, courts were giving extremely high deference to prosecutors, and in the civil context, private parties reasons for exercising what otherwise might appear to have been either race-based or sex-based preemptory strikes. And in Miller-El which originally came up when we had it two terms ago, the cert-worthy question really was whether the Fifth Circuit was misapplying the federal statutory standard governing when a certificate of appealability would or wouldn't be issued in habeas cases. And yet it seemed pretty clear to us that just telling - just getting the Supreme Court to tell the Fifth Circuit that it applied the wrong COA standard wasn't going to do anything for Mr. Miller-El because the problem - the Fifth Circuit had said, we'll look at the merits of this case. This claim of jury bias is frivolous; therefore we're not going to issue a certificate of appealability, and the challenge for us two terms ago was to get the Supreme Court to actually roll up its sleeves and apply Batson. There really was no federal question presented.
The argument that we were making then was the guarantee of equal protection in the Batson context is like the Fourth Amendment and the First Amendment in the sense that the tests are easy to state but the Supreme Court occasionally needs to model the application of these tests for lower courts and state courts. And I know you don't usually do this, I know this isn't what you think you do, but you guys really need to roll up your sleeves and look at these 100 or 200 jurors during this long 20-year jury selection process and explain to the state courts and to the lower federal courts that this is just a bridge too far, this is just totally implausible.

Preeta Bansal on the Grokster case:

Well, I think the Court in Grokster did kind of get it right in that they crafted a careful balance where they gave something to everyone. And it's interesting because I think Breyer's concurrence articulated in fact what the whole court did in practice. He basically said that we have to recognize the limit of judges and the law to regulate technology. And in many ways, that's what the Court did. They maintained the status quo in some ways, in the sense that the copyright holders - the entertainment companies and the creative content people - they won the immediate battle. They were able to slow down the development of or the marketing of this new technology in the peer-to-peer sharing. But at the same time, they kind of let loose all of the various forces by giving something to everyone and letting this situation work itself out, I think, in the future through market forces and business model things.

Basically, what the Court, I think, in essence, did was they said that the answer to the problem of peer-to-peer file sharing is not to stop technological innovation, and it's also not to take away the copyright owners' rights. It's really the answer is one of more innovation. They put the challenge for the various industries to develop more technology, especially filtering technology, digital fingerprinting to help enforcement of infringement on the web. They also kind of put it to both sides to come up with new business models, paid service like iTunes, so that there's legal ways of getting file-sharing and not through infringing methods. And they also put the challenge to the industry to come up with new legal models to do massive enforcement of direct infringers on the web.
So, you know, when I say that the Court gave something to everyone, I think what they did was they decided the case on one of three possible grounds, which is the inducement ground, and in some ways, the least problematic and the least controversial of the three grounds. They said that if you actively encourage infringement, then you can be liable as a secondary infringer. But they did not decide, and they expressly left open the big question in the case, the Sony issue, the issue of whether or not technology that - what it means to be capable of substantial non-infringing uses or substantial lawful uses. The movie picture studios at MGM's side had argued that if a technology is principally used for infringement, then the owners of that technology and the distributors of that should be held liable for contributory infringement. The Court declined to definitively address what is a substantial, non-infringing use. They declined to say that it has to be the primary use or whatever.

Randy Barnett on Raich:

So your question is what is up with the new federalism, and I think the answer to that - first of all, it's pretty unclear, but the issue - at the very minimum we have to say that it's lost all momentum. I suppose if I had to use a metaphor, a Norwegian Cruise Line metaphor, we have a ship out in the middle of the water and people have been projecting a certain forward momentum, and I'd say that ship has pretty much stopped. What hasn't happened yet is the laborious task of turning it around and going in the other direction. So that hasn't happened and so we're really not sure what's going on.
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So the Raich case is a Commerce Clause case, and there really have been only two major Commerce Clause opinions - the Lopez case and the Morrison case. I think all of you who are here who are law students or were recently law students have all studied those cases because they were very newsworthy. Lopez represented the first case in 60 years to find that Congress had exceeded its powers under the Commerce Clause in passing the Gun-Free School Zone Act. After that case, most academics thought that it really was going to be a one-shot deal because the case made - (chuckles) - that really was no pun intended. (Laughter.) And the reason why is because the Court made a big deal in Lopez about the absence of congressional findings, and so what most academics thought was that the Rehnquist court would not have the courage of its convictions, and as soon as there were voluminous congressional findings then they would come out the other way, which was tested in the 2000 case. Lopez is 1995; then comes the year 2000 and the United States v. Morrison case, which concerned a provision of the Violence Against Women Act that created a civil cause of action for gender-motivated violence. And that statute was passed after months of hearings, reams of testimony, and so people were pretty confident that the Court would back down. They didn't. In a five-to-four decision they found that that case also exceeded the Congress's powers, so that was the second time.

Avis Buchanan on the death penalty:

In Miller El v. Dretke, you had a situation where race played a - the Court found that race played a key role in jury selection and an improper role, and it vacated the death sentence in light of that. The Court went through a very painstaking analysis of the voir dire process in this case, and it applied some anti-discrimination-law principles in arriving at its conclusion. It essentially looked at all of the questioning of the jurors, looked at the jury questionnaires, looked at the transcripts of the voir dire process, isolated black versus non-black jurors looked at the prosecutor's questioning. It was the prosecutor's exercise of preemptory challenges that was at issue in Miller-El, and the Court found that there was disparate questioning in light of similar answers to the questions that the jurors had given in that process, and it was very concerned and vacated the conviction. It even decided what - it made judgments about what it thought were good jurors for the prosecution, which I found interesting since parties doing jury selection don't always know what a good juror is, even when you're getting lots of answers from your panel.

But I think it was the intersection of death and race that really influenced the outcome in that decision, that we don't want our death sentences infected by racial concerns, and as you probably are aware, there's lots of research about the disparate sentencing based on race across the county, that black defendants tend to be subjected to the death penalty more often than whites, and when the victim is white, the penalties are harsher, and I think the Court is very much aware of that and that that allows them to take on these kinds of cases - take on these kinds of issues.
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So there's a sense with Governor Ryan commuting death sentences, recognizing that mistakes are made, people coming forward, eyewitness - we're doing eyewitness research to show the fallibility of eyewitness testimony, people who are absolutely certain - certain that this is the person who did this to them are shown to be mistaken, and drastically mistaken with huge consequences for people. And I think that those people on the Court are already sensitive and aware of that and concerned about it. Some of those things are maybe influencing others in the Court and it's making a difference, although death penalty activism over the years, I think, is having an influence on how courts see the exercise of these mistakes in death penalty cases.

Richard Lazarus on the takings cases, Lingle and Kelo:

The first case is Lingle. This is an opinion by Justice O'Connor, unanimous opinion, just a wonderful case. This is the case where the Court unanimously eats Crow. That is exactly what Justice Scalia said at oral argument they were going to have to do.
They took a takings test, which was announced by the Court unanimously in June of 1980 in an opinion written by Justice Powell, an April argument, which is undoubtedly why it was written the way it was, where the Court announced a per se takings test. That is, if a regulation does not substantially advance a legitimate governmental goal, it is a per se taking. The problem was it didn't make any sense to say that a means-ends analysis, a takings test - that really is due process. That is a substantive due process test, not a takings test.
In this most recent case, in Lingle, the Courts took a close look at it. They repeated this over and over and over again since 1980. They have actually used it in the Nollan case and they threw it out, nine to zero. There is a wonderful first line in the opinion by Justice O'Connor, very candid, very refreshing when she says - this is the first line of the opinion: "On occasion, a would-be doctrinal rule or test finds its way into our case law through simple repetition of a phrase, however fortuitously coined." And then they say, you know, looking at it, there is nothing to it.
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The big case of the term of course in this area was the Kelo decision. This is where the Court ruled five to four in an opinion by Justice Stevens that state and local governments could use their power and their domain to promote economic development. It doesn't have to be property which is being used in some way that would constitute a common-law nuisance. It doesn't have to be a so-called blighted area. It doesn't have to be so you can condemn it so the public in fact can physically use the property somehow, like a highway.
It is enough that it is promoting economic development. Economic development can satisfy the Takings Clause requirement that eminent domain be used for quote, "public use," unquote. In this case, Kennedy supplied the fifth vote for Justice Stevens' opinion. He wrote a separate concurring opinion but, again, showing Stevens' talent, he joined Stevens' opinion; he didn't just write separately.
In a separate opinion, though, he does sort of a shot-over-the-bow of state and local government, sort of a warning shot. He says, okay, it's okay here to have eminent domain use, and even though it might be private-to-private property for economic development in this case. But it is okay here because we had a comprehensive land-use plan. We had a real comprehensive land-use plan. It is also okay because when they did it, they weren't sort of benefiting and enriching some identifiable private person that we could worry that there was really some individual and private sectors sort of using the local government to sort of enrich themselves. I thought it was a very responsible and quite appropriate concurrence in the case.

Paul Smith on Justice Kennedy:

Well, I think it was interesting that Justice Kennedy made a point of adding a whole separate section at the end of the Roper decision invoking foreign law. He had a perfect opportunity just to rely on the evolving consensus in this country, and there was a relatively well-accepted view that the Eighth Amendment does kind of evolve and you can look at what the states are doing. And there was, he thought an emerging consensus in this country against execution of people who commit the crime under the age of 18. But to add that separate section in this context I think is an example of Justice Kennedy's process that we've been seeing for the last few years of really declaring independence from the sort of governing conservative orthodoxy of originalism, because that is sort of like waving a red flag at the bull - Justice Scalia's way of approaching the Constitution, to say not only are we going to have an evolution in our own generation's instincts about - the human condition will be taken into account, but we're going to start looking at what the French are doing as well. (Laughter.)

And he had been pilloried in the press and in the conservative academy - academic journals and things - because of reliance on these kinds of authorities, particularly in Lawrence v. Texas, and for him to come back and do that, especially in the term when he shows up in case after case as sort of the fifth vote, aligned with the more liberal members of the Court, I think is a very interesting phenomenon, to the point now where the New York Times featured him as the justice that they don't want to have nominated on Monday. That's what I see Roper as really further cementing of Justice Kennedy's kind of new confidence of - he is going to have a much less originalist kind of jurisprudence, not just in the Eighth Amendment but in a lot of areas.