"While I know Harriet would have made a fine justice, I didn't think enough about how the selection would be perceived by others," Mr. Bush writes. "I put my friend in an impossible situation. If I had to do it over again, I would not have thrown Harriet to the wolves of Washington."...
--After he tapped Roberts for chief justice when William Rehnquist died, he only considered women candidates to replace O'Connor. "I didn't like the idea of the Supreme Court having only one woman."
But Roberts was originally picked for the O'Connor position. The idea of appointing a woman, then, didn't matter all that much.
--There were "frustrating roadblocks" for most of the women candidates. When several senators said they were impressed by Miers, he concluded "she would make an outstanding justice." Miers was "shocked" when he asked if she was interested.
--No one in the White House ever suggested conservatives would revolt over her nomination. Bush suggests the opposition was elitist because Miers didn't go to an Ivy League school and "is not glib."
In addition to Miers, Bush says he considered Patricia Owen, but he thought Miers would be easier to confirm. After all the trouble with Miers, he switched to Alito, who, he writes, was "ill at ease" with Bush at first. Bush relaxed him by talking about baseball.
Bush says wanted to avoid appointing another Souter — Souter, who disappointed Bush's father, by "evolv[ing] into a different kind of judge."
--Roberts was not the unanimous choice. Vice President Cheney and Attorney General Alberto Gonzales backed Judge Mike Luttig. Miers supported Alito. Chief of Staff Andy Card and adviser Karl Rove favored Roberts. (Which means J. Harvie Wilkinson and Edith Brown Clement, the other two contenders early on, didn't have prominent backers.)
--Brett Kavanaugh, now a federal appeals court judge, told Bush Luttig, Alito and Roberts would all be solid justices. He suggested Bush ask a "tiebreaker question" of which man would be the most effective leader. To Bush, that was Roberts.
It seems that Roberts has a special appeal to Bush, who liked his "gentle soul" and "quick smile."
The issue is freedom of speech, and the speech in question is repulsive. (Phelps's church protests near military funerals, with signs like "Thank God for Dead Soldiers," to express the view that God is punishing the U.S. for its immorality.) The father of one soldier sued for intentional infliction of emotional distress — which is a tort — and won $5 million against the church.
[T]his case has about it the promise of rewriting a considerable body of First Amendment law.
For a Court that so recently had refused to create a new exception to the First Amendment’s protection (so as to permit the outlawing of animal cruelty videos and films), the task of crafting a “funeral rights” exception to free speech doctrine may be a forbidding one. But for a Court hearing this case in the midst of war weariness and an expanding fear of decaying morality, the prospect of drawing a First Amendment shield around the Westboro Baptists’ message may also be a daunting one.
Perhaps this is a case in which the quality of legal advocacy, during oral argument, could make a difference. If one side or the other’s lawyer were to falter, for lack of seasoning at that demanding podium, it might ease the Justices’ decisional choice — but, then again, maybe not.
The quality of legal advocacy... is that meant as a laugh line? How did it happen that the work of upholding First Amendment rights is in the hands of Margie Phelps? I don't know the story, but it's not that the usual free speech defenders have failed to support these profoundly unpopular and ugly speakers. There are amicus briefs from the ACLU and from law professors in support of the Phelps group.
It will be interesting to see how Margie Phelps carries out her lawyerly task. Back in 2004, Michael Newdow argued his own case in the "Under God"/Pledge of Allegiance case and his nontraditional, passionate style seemed to work rather well.
Dr. Newdow, a nonpracticing lawyer who makes his living as an emergency room doctor, may not win his case.... But no one who managed to get a seat in the courtroom is likely ever to forget his spell-binding performance.
That includes the justices, whom Dr. Newdow engaged in repartee that, while never disrespectful, bore a closer resemblance to dinner-table one-upmanship than to formal courtroom discourse. For example, when Dr. Newdow described ''under God'' as a divisive addition to the pledge, Chief Justice William H. Rehnquist asked him what the vote in Congress had been 50 years ago when the phrase was inserted. The vote was unanimous, Dr. Newdow said.
''Well, that doesn't sound divisive,'' the chief justice observed.
Dr. Newdow shot back, ''That's only because no atheist can get elected to public office.''
The courtroom audience broke into applause, an exceedingly rare event that left the chief justice temporarily nonplussed. He appeared to collect himself for a moment, and then sternly warned the audience that the courtroom would be cleared ''if there's any more clapping.''
I doubt if there will be any clapping for Margie Phelps. Or any dinner-table-style repartee. She's coming in from the other end of the God spectrum, and we shall see how that sounds.
The architects of the Rehnquist federalism revolution....
Go to the link for some detail on what Greenhouse likes to call the "federalism revolution."
.... were Chief Justice William H. Rehnquist and his fellow Arizonan, Justice Sandra Day O’Connor (Chief Justice Rehnquist was actually from Milwaukee, but he decided during his Army service in North Africa that he liked the air of the desert rather than the cold and damp of the Great Lakes.) They were Westerners to whom the notion of states’ rights came naturally.
But Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.
Chief Justice Roberts appears particularly in tune with the exercise of national power.
Here, Greenhouse notes 2 dissenting opinions —Massachusetts v. Environmental Protection Agency, where Roberts would have saved the EPA from the state's lawsuit to force it to deal with global warming, and Gonzales v. Oregon, where Roberts would have let the United States attorney general keep doctors from prescribing the suicide drugs that were authorized by Oregon law.
Finally, Greenhouse aptly observes that even some of the Justices who favor the states in federalism decisions lose their nerve when they are confronted with "issues that people really care about." Chief Justice Rehnquist balked when he got to the Family and Medical Leave Act (in Nevada Department of Human Resources v. Hibbs) — and that case was only about whether an employee of a state could get back pay when the act was violated, not the more momentous question of whether the act was constitutional or could bind the state.
So now we have a monumental new law. Can we really imagine the Supreme Court thwarting it?
John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.
But the Supreme Court got cold feet about standing up to the will of the democratic branches of government right after Franklin Roosevelt won a big landslide election in 1936. The health care reform law followed an election that wasn't about health care reform at all. The main thing people were thinking about when they voted for Obama in 2008 was the dramatic economic crisis. There were also the 2 wars and amorphous hopes for a post-racial America.
The 2008 election cannot be read as a mandate for health care reform, especially not for the aspect of it that is challenged in the current lawsuits: the individual mandate to buy health insurance. That could not possibly have been foremost in the voters' minds. First, during the campaign, Obama spoke emphatically against it. And second, even after a year of talk about the reform, people don't really understand what the individual mandate is going to be.
There isn't a big majority of Americans who are counting on being compelled to buy insurance. There isn't even a majority — even a thin majority — of Americans who favor the health care reform as a whole, and this is even before they need to confront something that is probably going to shock and distress a lot of people who haven't studied the text of the law and have simply trusted that the government is about to give them the good things they need.
Greenhouse tries to patch this hole in her argument:
Midweek polls showed the public already rallying around the new health care law. That trend is likely to accelerate as people realize that the law’s benefits belie the scare stories — just around that time that the state challenges are likely to reach the Supreme Court. It won’t require a summa cum laude in history from Harvard to be able to tell history’s wrong side from its right.
Writes Mickey Kaus, fretting about the end-of-life decisions the government may very well take over for us under ObamaCare.
Now, as you may know, the Supreme Court denied the existence of a federal constitutional right to physician-assisted suicide, but the opinion (by Chief Justice Rehnquist) shows deep concern for the interests of the individual who might suffer from untreated depression or who might be vulnerable to "abuse, neglect, and mistakes." The Court worried that family and medical personnel might subtly pressure someone to choose death to save money, and that, even uncoerced, some people might think it is the decent, honorable choice to spare their families the cost of medical care.
But all of that supports Kaus's point. It's one thing to deny the choice to die, quite another to deny the choice to live. The individual may not have a right to get killed, because the state's interest in protecting people from coercion and abuse is a good one. But Kaus is concerned about a government that wants you dead — perhaps not by actively offing you, but by maintaining full control over the medical treatments you need in order to fend off death.
I'd like to see the whole text of that speech. Why did Roberts say that it might not be a good thing? When I first saw the quote that I put in this post title, I thought: Well, that's typical of how each side characterizes what it is doing. We're the judges who are doing real legal analysis, and those others are result-oriented and pursuing their own personal preferences and acting like a legislature. But apparently, it wasn't one of these we're-good-you're-bad remarks. It sounds as though he probably said that everyone on the Court has switched to writing opinions with carefully elaborated legal arguments, and the difference is not between the liberals and conservatives (and centrists) on the Court, but between the Court now and the Court before the Rehnquist. I was just teaching Griswold v. Connecticut the other day and thinking: They would never write this opinion this way if it came up today. It looks so carelessly slapped together by today's standards, yet you can tell by the tone that they thought they were doing a fine job.
But what was good about the old style of opinion-writing? What are we missing? Without more of the text of the speech, I can only guess at what Roberts may have said, but I'm thinking that what we miss are the opportunities for insight into what made the Justices think about things the way they did. There's an immediacy to those old cases. The reader doesn't feel that a squad of bookish law clerks has replaced all human feeling and intuition with properly scholarly verbosity. All that verbiage distances us and makes the layperson think: It certainly looks like they know what they're doing. In fact, it may be utter nonsense, but good luck figuring that out.
It's tiresome, workmanlike, and uninspiring. In such an environment, who will care much about the role of the Constitution limiting whatever it is government decides to do to us?
If Rehnquist represents something Roberts is ambivalent about, does Roberts aspire to his own seismic shift?
