No Panaceas

Friday, April 11, 2003
So do I have to change my lecture?: A recent Washington Post article has a couple of interesting tidbits. First, the state of California opted to drop their claim in Medical Board of California v. Hason thus causing the Supremes to drop the case. The article notes that this is a rare, maybe even unique, example of one side simply dropping the case rather than settling. But this is really just a variant of a common strategy, i.e., settling when you might lose or when the political circumstances make the case difficult to sustain.

Petitioners are strategic actors and they settle because they think ending the case now gives them a better expected outcome. For example in 2000 Florida settled a disability claim because of fears that the Court would use the case to dramatically weaken the ADA. This posed political problems for the state elected officials. (If you have Lexis-Nexis access check out the March 2, 2000 Washington Post article "2 Appeals Involving Disabilities Act Voided.") This case is a replay, only without the settlement.

It also illustrates a larger part of the political puzzle. Liberal interest groups are afraid of the Supreme Court on issues like ADA and abortion. Consequently they are willing to tolerate localized losses to avoid the Supremes potentially handing down a conservative judgement with wider implications. In this case the plaintiff wanted the case to go forward, so his interests are sacrificed by the larger calculus.

The second tidbit regards making oral arguments more public. As I've said earlier, liberalization of the Supremes policy must await a new Chief Justice. This article confirms that Rehnquist's actions in the Michigan cases (as well as Bush v.Gore) do not indicate his willingness to make the Court available for radio or television broadcast. The article presents an interesting quote from Justice Kennedy:

"Speaking at the court's annual budget hearing before a House Appropriations subcommittee Wednesday, Justice Anthony M. Kennedy said, "I don't think it is going to be common practice." He explained that the court doesn't want the banter among justices and lawyers to overshadow the formal reasoning laid out in written opinions, thus creating an undesirable image of the justices' work."

This is a compelling point but I think a non-convincing one, nonetheless. There are times when we focus too much on what goes on in the orals. Take Justice Thomas, for example. Much is made of the fact that he infrequently actively participates in the arguments. I think what is implied by these comments is that Thomas is either not interested in the cases before the Court or that he is, to put it gently, out of his league. His performances at arguments are an absurd basis for such implications. But were the Court on television I fear the perception would only increase. In contrast Scalia seems to view orals as an opportunity for sport, even if the jousting has little to do with the case at hand.

But, really, would this affect our interpretation of written opinions? Transcripts and recordings of arguments have long been available. I've never seen a serious claim that what went on in orals affects how a written opinion is later interpreted.

From the House Suspensions Calendar:

2) H.R. 273 - Nutria Eradication and Control Act of 2003 (Sponsored by Rep. Gilchrest / Resources Committee)

These guys are just all over the place in swampy areas like Anahuac NWR in Texas. I guess people just aren't eating enough Nutria Chili. Maybe Louisiana should get Shrek to endorse Swamp Rat Stew or something.

More on Virginia v. Black: This is one of those cases where the media really got it wrong at first. Note the CNN story I cited earlier. In reality it's a somewhat complicated decision with shifting coalitions and multiple opinions, so I suppose the confusion is understandible. But in reading the opinions -- which I've finally managed to do; it's a big grading week for me -- I think the overall impact of the decision is uncertain. The Court upholds cross-burning laws in principle but not necessarily in practice. The cross-burning must be coupled with a clear intent to intimidate someone specific. But banning all cross-burning regardless of context is unconstitutional. This highlights the distinction between the two cases, where one was a directed act of intimidation, while the target of the other burning, in so much as there was a target, was more diffuse. It'll be interesting to see how this plays out for campus hate codes. Linda Greenhouse has a pretty good synopsis of the different coalitions and their opinions.

Monday, April 07, 2003
Now this is a coalition: How many times do you think this voting pattern has occurred? O'Connor, Stevens, Breyer, Rehnquist, and Scalia in the majority against Thomas, Ginsburg, Kennedy, and Souter in the minority. That happened today in Virginia v. Black, the cross-burning case. I've not had time to read O'Connor's opinion yet, but the Court held the law constitutional because cross-burning constitutes clear threatening speech.

I'm curious to read the decision. One of these cases involved two Jethros who failed to light a cross on a neighbor's yard. They were too drunk and/or stupid to actually accomplish the task. In the other case a Klan rally was held in a relatively remote area and it at least implies the question, "If a cross burns in the forest and no one sees it..." See Dahlia Lithwick's piece on the oral arguments.