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Introduction: Personality and Process
RODNEY A. SMOLLA
This book, by Paul Barrett, Richard Carelli, Marcia Coyle, Lyle Denniston, Aaron Epstein, Kay Kindred, Tony Mauro, David Savage, and Stephen Wermiel, profiles a year, 1992–93, in the life of the Supreme Court of the United States. Included among these contributors are many of the most significant "Court watchers" in the nation, journalists who have made observing and reporting on the Court their lives' avocation. Chances are, indeed, that the reports of writers who cover the Court for the nation's major news organizations are the source of much of the information most Americans have on the decisions of the Court over the years. Outside a relatively small group of lawyers, judges, students, and academics, few Americans ever have the opportunity to observe a Supreme Court argument, or take the time actually to read the text of a Supreme Court opinion. Journalists are the eyes and ears of the American people on the actions of the Supreme Court, and in that sense, are the eyes and ears of the people on the Constitution itself.
The Stories of Real People
This book is intended to give readers a sense of the richness of Supreme Court litigation. The cases heard by the Court are, first and foremost, cases, disputes involving real people with real stories. The accidents and twists of circumstance that propelled their lives into the rarefied arena of the Supreme Court are often compelling drama.
Walter Biggins just wanted "a damn raise." Thomas and Robert Hazen, who employed Biggins in their family-owned business in Holyoke, Massachusetts, did not think Biggins deserved as big a raise as he wanted, and as negotiations embittered, relations deteriorated. Biggins was fired. He sued. His suit reached the Supreme Court.
Jayne Bray, a homemaker from Bowie, Maryland, just wanted to register her moral outrage at abortion. She participated in an abortion clinic blockade as part of the civil disobedience efforts of Operation Rescue, one of the nation's most vocal and aggressive anti-abortion groups. The National Organization for Women simply wanted peace for abortion clinics, for doctors who provide abortions, and for women who attend such clinics to exercise their recognized constitutional right of privacy to obtain abortions. It sponsored a lawsuit against Operation Rescue and Jayne Bray, claiming that their aggressive protest tactics violated the civil rights of women attending abortion clinics. The suit reached the Supreme Court.
Tim Dickerson was twenty-three, and had never been in trouble with the law. But one day, two seasoned police officers, Vernon Rose and Bruce Johnson, spotted Dickerson walking down the street in Minneapolis, and thought he looked suspicious. The officers stopped Dickerson and subjected him to a pat-down. Officer Rose says he felt what seemed to be "a lump of crack cocaine in cellophane" in the front pocket of Dickerson's nylon jacket. It turned out to be one-fifth of a gram of cocaine. Dickerson claimed that the officers had no right to stop him and search him and that his conviction for cocaine possession should be overturned. He brought his case to the Supreme Court.
James Zobrest, a teenager who had been deaf since infancy, wanted to attend Salpointe Catholic High School in Tucson. He and his parents wanted the public school district to pay the costs of a sign language interpreter, just as the school district would pay if James had gone to the public high school. They sued the school district; the case found its way to the Supreme Court.
Leonel Herrera claimed he was an innocent man. Herrera was convicted by the state of Texas of killing a cop, he claimed that the state got the wrong man and that he deserved a new trial to attempt to prove that. But Herrera was sentenced to death by the state of Texas, and all his normal avenues of appeal and redress had run out. He wanted the federal courts to intervene and filed a federal writ of habeas corpus, claiming that it would violate the United States Constitution to execute an innocent man. With his life hanging in the balance, hours before the scheduled execution, his case was brought to the Supreme Court.
In St. Paul, Minnesota, Russ and Laura Jones were finding it difficult to make peace with their neighbors. Russ and Laura, African Americans, had moved with five children into a predominately white working-class neighborhood on Earl Street in St. Paul, and had been besieged with race hate: slashed tires, a smashed station wagon window, and racist slurs directed at the kids. One night a group of teenage skinheads, including Robert A. Victora, set fire to a makeshift cross in the Jones's backyard. The City of St. Paul prosecuted the teenagers under a city "hate crimes" ordinance, a law that made it a crime to burn a cross or display a Nazi swastika to cause anger, alarm, or resentment in others on the basis of their race, color, creed, religion, or gender. Victora claimed that the law violated his rights of freedom of speech under the First Amendment, in a case that reached the Supreme Court.
Jake Ayers was a former sharecropper in Mississippi. What he and his wife, Lillie Ayers, wanted was a chance for a quality college education in Mississippi for their nine children. In 1975 Ayers filed suit against the state of Mississippi, claiming that it had systematically underfunded the historically black state colleges and universities and that decades after the Supreme Court's historic desegregation decision in Brown v. Board of Education the state of Mississippi still ran a discriminatory higher education system. Ayers died in 1986, but his suit lived on after him and reached the Supreme Court.
Christine Franklin was a high-school student at North Gwinnett High School, a suburban high school north of Atlanta, in Gwinnett County, Georgia. Andrew Hill was the high-school football coach, athletic director, and economics teacher. Franklin claimed that Hill sexually harassed her and had sexual intercourse with her on several occasions, and when her complaints failed to draw what she believed was a meaningful and appropriate response from the high school's officials, she sued the school district for damages arising from her claim of sexual harassment in a case that was eventually ruled on by the Supreme Court.
These chapters tell interesting stories, but they do far more than that, for these are not just any stories, or any set of cases. These are, rather, disputes that take on a larger meaning, that are enveloped by the great social issues of the day, disputes that reach to the heart of the meaning of the Constitution and the fabric of American law: abortion, separation of church and state, freedom of speech, the right of privacy, crime, violence, police misconduct, race discrimination, sex discrimination, age discrimination, the death penalty. These are the issues that Americans think, talk, fight, vote, and sue about. These are the issues on which elections turn, on which senators grill nominees to the Supreme Court, and on which Supreme Court Justices in turn grill the lawyers who argue before them.
The personalities and jurisprudential leanings of the nine Justices who served on the Court during its 1992–93 term are always brightly in evidence in the chapters that follow. That is partly because those who watch the Court regularly come to see it not as mystical and mythical, an oracular institution pronouncing the sacred truths of the republic from on marble high, but rather as a collection of nine quite distinct individuals, men and women who often squabble and snarl and struggle as they wrestle each other for the votes necessary to resolve many of the deepest conflicts of our national identity.
The decisions of the Court are generally announced in written opinions, in which the decision and supporting rationales are explained. As the terms are used throughout this book, a "majority opinion" is an opinion in which at least five of the nine Justices on the Court join. An individual Justice will write this majority opinion, and is referred to as writing "for the Court." Justices who agree with the outcome of the majority opinion, but who reach that result through some other line of reasoning, or who wish to append certain individual remarks regarding the case, may file separate "concurring opinions." Justices who disagree with the outcome reached by the majority file "dissenting opinions," explaining why they would reach some other result. Sometimes no single rationale will command a five-Justice majority; then the result of the case is determined by piecing together enough concurring opinions to come up with at least five Justices who agree on the appropriate outcome, even if they cannot reach consensus on the reasoning. In such a case the concurring opinion commanding the most votes (at least two votes but less than five) is called a "plurality opinion."
The decisions of the Court are often decided by one vote, and predicting the "direction" of the Court, whether more liberal or more conservative, more activist or more restrained, is a capricious science. The individual Justices are in many ways a cross-section of the political landscape of the nation.
Farthest to the right is Justice Antonin Scalia, the most colorful and intellectually interesting Justice on the contemporary Supreme Court, and one of the most colorful in the Court's history. His strongly held conservative views on substantive issues, his fiery temperament, his distinctive approach to interpreting the Constitution, and his brilliant writing ability combine to make him one of the most formidable persons ever to sit on the Court. His views are worth detailed examination by any serious student of the Constitution and the role of the Court, for he has staked out a conservative jurisprudence of unique purity; if one understands Scalia's thought, and the thought of those who passionately despise Scalia's thought, one pretty much understands the full tonal range of modern constitutional debate.
Justice Scalia's substantive views of constitutional law are "conservative," as that term is usually used in popular discourse, and by most measures he is indeed the most conservative member of the modern Court. He believes in strict separation of powers among the various branches of the federal government; he favors increasing protection for private property under the Takings Clause; he does not believe that affirmative action should be permitted as a remedy for race discrimination; he favors overruling Roe v. Wade and holds that the Constitution does not protect abortion; he does not believe that other "unenumerated rights," such as a right to die with dignity, should be read into the Constitution; he believes that the death penalty is constitutional; he would relax the line of separation between church and state under the Free Exercise Clause and Establishment Clause of the First Amendment; and he would permit the government to limit the free speech rights of persons who receive government benefits by placing conditions restricting the exercise of those rights on the receipt of those benefits.
Yet to say that Justice Antonin Scalia is a conservative is to say that an eagle is just a bird. For Scalia is not just a conservative, he is a magnificent conservative, often soaring alone above friends and foes with a power and style that are his alone. He is, in short, not just any conservative. There is, for example, a libertarian streak to his conservatism that at times places him in alliance with liberals. In the First Amendment area, for example, Scalia has adopted a virtually absolute rule against discrimination against speech on the basis of its viewpoint. This caused Scalia to join with liberal Justices like William Brennan and Thurgood Marshall in voting to strike down laws against flag desecration. It also lead Scalia to write a far-reaching opinion for the Court in R.A.V. v. City of St. Paul, striking down laws targeted at racist "hate speech," a decision profiled in the chapter written by David Savage.
Scalia's distinctive mark, however, is not so much captured by cataloguing his substantive views as it is by examining his judicial personality itself—his zest for intellectual combat, his unique views on constitutional interpretation, and his incisive writing style.
Scalia has a gregarious, exuberant personality. He is loquacious in oral argument, loving to put difficult hypotheticals and stinging questions to advocates. At times his style in oral argument appears more that of the law professor strutting his stuff before a class than the conventional image of the staid and sober jurist.
In his approach to interpreting the Constitution, and indeed in his approach to the task of judging itself, Scalia has adopted three positions that work together to set him apart from most of his colleagues on the Court. These three views of Justice Scalia can for convenience be labeled (1) a skepticism of the value of stare decisis, (2) a preference for textualism over the use of legislative history, and (3) a belief in the primacy of clear-cut rules over amorphous standards.
First, Justice Scalia does not place a high value on the notion of stare decisis (adherence to precedent from prior cases). The traditional view of stare decisis is that once an important issue has been settled by the Court, it should remain settled, unless there are strong reasons for reconsidering the issue and changing the law. The conventional wisdom is that this value of adherence to precedent is laudable because it promotes stability in the law and respect for the Court as an institution. A constitutional system in which the rules are constantly being changed by the Court, the theory goes, is disruptive, weakens the fabric of the law, and creates the appearance that constitutional law is largely a political game, in which the rules change whenever the personnel of the Court changes.
Justice Scalia has largely eschewed these traditional views about stare decisis. He believes that as a Supreme Court Justice, it is more important that issues be decided correctly than that the Court honor such abstract notions as "stability" and "respect" in order to preserve a legal rule that no longer commands a majority of the Court. While Scalia is often criticized fiercely for his views, often chastised (particularly by liberal critics) as a shrill and strident conservative, his views on stare decisis mark one sense in which it should be said that Scalia is the most open-minded of all the Justices on the Court. As a Justice who does not believe strongly in honoring precedent, nothing is ever finally decided, and lawyers have the freedom to invite Justice Scalia to take a fresh look at virtually anything. For Justice Scalia, if it has not been decided right, it hasn't been decided.
Justice Scalia's second striking approach to constitutional interpretation is his strong preference for using the language of the text itself in interpreting a provision of the Constitution or a statute, rather than the "legislative history" of that provision. Once again, this approach sets Scalia apart from most of his colleagues and from traditional practice.
In the American legal system it is common for lawyers and judges to invoke "legislative history" to explain the meaning of a law. The traditional justification for this is that the "law" is not the literal words written down on paper, but rather the "intent" or "meaning" of the persons who enacted those words. Because language is inherently ambiguous, and because those who write laws can never cover every conceivable detail or potential application, judges must have the flexibility to "interpret" the language in light of the actual intent of those who wrote it. For a Supreme Court Justice, interpreting the meaning of a statute is often critical, for two quite different reasons. When there is no constitutional issue at stake and the Court is merely interpreting a federal law in order to decide a case brought under that law, it is obviously important to interpret the meaning of the law, so that the case can be decided. If an employee sues an employer for discrimination under a particular federal civil rights law, for example, it is important to know whether that civil rights law "covers" that type of alleged discrimination. Traditionally, the Supreme Court has been willing to examine the legislative history of the law, including such things as reports prepared by congressional committees leading up to the passage of the bill, or remarks by members of Congress during floor debates, to shed light on what the law means.
Statutory interpretation is also critical to the task of a Supreme Court Justice in a second circumstance—when the law at issue is challenged as unconstitutional. In many areas of modern constitutional law, the constitutionality of the law may in fact turn on the legislature's reasons for enacting it. When a legislature acts with intent to discriminate against religion, for example, it is well established under current doctrines that the law violates the Free Exercise Clause of the First Amendment. Most Justices on the Supreme Court are willing to examine the legislative history of a law to determine the legislature's intent in passing it, so that the law may be struck down if that intent proves to be invidious or discriminatory.
Excerpted from A Year in the Life of the Supreme Court by Paul Barrett, Richard Carelli, Marcia Coyle Lyle Denniston, Aaron Epstein, Kay Kindred, Tony Mauro, David Savage, Stephen Wermiel, Rodney A. Smolla. Copyright © 1995 Duke University Press. Excerpted by permission of Duke University Press.
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