The Next Supreme Court Justice
There has been much speculation whether President Obama will have the opportunity to nominate another Supreme Court Justice before he vacates 1600. The spotlight has been on Justice Ginsberg’s seat, given her age and health, and perhaps desire to step down while Obama can choose her successor, or some combination of the two.
Of course I had to ask Professor Tribe for his short list of Obama’s possible nominees should the need arise. To be honest, I wasn’t really expecting him to give me his list. I probably had a better chance of getting Colonel Sanders to give me his original recipe of eleven herbs and spices. But that wasn’t a reason not to ask. As expected, Professor Tribe informed that “that’s a short list that I would share only with the President himself.” So while I wasn’t surprised that Tribe didn’t view Coverage Opinions as a confidante, I was surprised that he sees the short list as a moot point, telling me: “I see no prospect of President Obama filling a vacancy in the time left in his presidential term, so the question is much too hypothetical.”
Justice Barack Obama?
President Obama will be only 55 years old when he leaves office. Even if he spends a few years after that earning money on the lecture circuit, he’ll still be young enough to be a Supreme Court pick. His youth may cause him to want to be more than just an ex-President and the things that come with that. [President Taft’s gap between the White House and Supreme Court was eight years.]
There are a lot of other reasons why Obama could someday end up a Supreme Court Justice. [This is not a political discussion. Coverage Opinions never gets into politics. It is simply objective observation.] There are very few real jobs that an ex-President can have, given their celebrity and the security issues. Supreme Court Justices are generally insulated from the public and the job already comes with a built-in security function. Obama has taught constitutional law. He is reported to be less than fond of political schmoozing. That is not a job requirement. And serving on the Supreme Court – thus in all three branches of the federal government – would have a huge impact on his legacy.
I asked Professor Tribe if he “can envision Obama someday wearing a robe at One First Street?” He replied: “That’s not hard to envision. He would make a first-rate Justice on every dimension that matters.”
[Incidentally, Obama, while a student at Harvard Law School, served as a research assistant to Professor Tribe for two and a half years. Tribe can point to a 1989 Harvard Law Review article where he thanked student Barack Obama for his assistance.]
This Term’s Most Important Case Concerning Individual Rights
Every Supreme Court term seems to have a blockbuster case involving individual rights. I asked Professor Tribe what this term’s is? “[It] will almost certainly be whichever case or set of cases on marriage equality the Court decides to consider. We won’t know which case or cases that will be until late September or early October at the earliest. The Court will have up to half a dozen such cases to choose among.”
Tribe The Handicapper
Surely Professor Tribe, given his extraordinary knowledge of the substantive legal issues, combined with insight into the Justices’ heads, at least as much as possible, and voting patterns, is a pretty good handicapper of the outcome of cases. He is.
I posed this hypothetical to him. If he read the briefs in every Supreme Court case this term, and attended every oral argument, in what percentage of cases did he believe that he would predict the winning side?
“Predicting how good my predictions would be is a challenge squared [gee, that’s a good point], but I can tell you that in the past my prediction percentage in cases where I’ve read the briefs has averaged around 90%. In some of the most closely contested cases, the average has probably been a bit lower, say 85%. Among those in which I’ve attended oral argument, my average has been well over 90%.”
That’s really impressive. If only he could do that on Sundays in the Fall.
Boehner vs. Obama On Use Of Executive Orders
The constitutional issues that get the most attention involve individual rights. But there is one not so sexy issue that is poised to command the public’s attention: Rep. John Boehner’s soon-to-be-filed suit against President Obama, concerning Obama’s allegedly improper use of Executive Orders. I asked Professor Tribe whether any such suit can survive a standing or other jurisdiction-based challenge if raised before the current Supreme Court? If so, and the case reached the merits, what did he see as the outcome before this Supreme Court (recognizing, of course, that the details of the suit are not yet known)?
Tribe – the guy with the impressive handicapping numbers, see id. -- doesn’t see the suit ending well for the Speaker: “I do not believe that the Boehner suit can survive a standing challenge. If it were to survive such a challenge, it would very likely falter on the basis of a political-question challenge. Based on what Rep. Boehner has said about the substance of his complaint (with respect to the delay in implementing parts of the ACA), I think the outcome before the current Court, if it were (implausibly) to reach the merits, would almost certainly be adverse to Boehner.”
Getting Into Tribe’s Head
In general, a constitutional scholar does a lot of analyzing of what others write, say and think. It has much to do with getting into the heads of nine strangers. I wanted to try to get into Tribe’s head. Sure he’s written thousands of pages on the subject of constitutional law, and obviously much can be learned about the man from reading it, but I needed to take an easier route – learn as much about his thinking from a single question. So I posed this to him:
Suppose someone was completely unfamiliar with the United States Constitution. You explained to the person that one of its purposes is to afford and protect individuals’ rights against the hands of the government. But to really make this point you need to give them an example. I asked Professor Tribe to tell me what Supreme Court case or two would best demonstrate this to someone so unfamiliar with the Constitution. [I suspect that if you asked this question to twenty life-long constitutional scholars you’d get nearly as many different answers.]
Professor Tribe gave me two names: Brown v. Board of Education, 347 U.S. 483 (1954) and Riley v. California, 134 S. Ct. 2473 (2014). Brown needs no explanation. In Riley v. California the Supreme Court unanimously answered the question “what police must do before searching a cell phone seized incident to an arrest. [S]imple – get a warrant.”
Writing for the Court, Chief Justice Roberts had this to say: “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life[.]’ [citation omitted.] The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Id. at 2494-95.
Roberts’s opinion is filled with powerful words about privacy, such as these: “We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.” Id. at 2493.
Cameras In The Supreme Court
I’m pretty sure that if I stood on the corner of 17th and Market Streets outside my office, and showed passers-by photos of Chief Justice John Roberts and Judge Judy, more people would know who Judge Judy is. While cameras in the Supreme Court would not pose a threat to the NFL’s television ratings, surely they would be a step toward better educating the public about the Court and the nine folks who have a lot to say about how we all live. [Oral recordings of arguments are available; but video would be a whole different world.]
Several of the Justices disagree with me. As Tribe points out in Uncertain Justice, Justice Sotomayor has warned that “very few [viewers] understand what the process is, which is to play devil’s advocate[.]” Justice Scalia has said that “it will misinform the public…to have our proceedings televised.” [All of that sounds like arguments in support of cameras in the court room. But I’m just a simple insurance lawyer.]
Professor Tribe supports cameras in the Supreme Court. But does he see that day coming? “My best guess is that TV cameras will someday cover Supreme Court arguments, but that it won’t happen any time soon.”
How He Chooses His Cases
Professor Tribe told me – no surprise here – that he gets many offers to become involved in cases after the Supreme Court grants cert. Also not surprising was how his own personal cert. process works: “I … decide only from among those in which I agree with the position I’m being asked to defend; those in which I’m asked to argue something I don’t believe is legally defensible, I always turn down. Among those that aren’t eliminated by that criterion, I decide on the basis of how interesting and important I find the legal issues.”
Professor Tribe And Insurance
Since Coverage Opinions is, at its core, an insurance newsletter, I was obliged to work in an insurance coverage question. As far as I can tell from Tribe’s resume of Supreme Court cases, only one involved insurance. That’s actually saying a lot, since it is virtually impossible for a coverage case, which is just a contract case under state law, to reach the Supreme Court. So the fact that Tribe has even one on his list was bank error in my favor, collect $200.
Tribe’s insurance case is State Farm v. Campbell, 538 U.S. 408 (2003). To be sure, Campbell is not a traditional coverage case. While it started out as one, insurance will play no part in its legacy. Campbell involved an insurer’s bad faith failure to settle an automobile liability claim. State Farm’s insured, Campbell, was an at-fault driver who caused an accident that killed one person and permanently disabled another. Despite such liability and damages fact, State Farm refused to settle for the policy’s $50,000 limit. So the case went to trial. Campbell was found 100% negligent and a verdict was returned for $185,000. State Farm eventually paid it in its entirety.
A bad faith case ensued against State Farm. To make a very long story short, the bad faith case proceeded through the Utah state courts and arrived at the U.S. Supreme Court’s steps with this question to be answered: Can the $145 million punitive damages award against State Farm, in the bad faith case, stand in the face of a $1 million compensatory damages award?
[UNLV Law’s Jeff Stempel, the co-author of my coverage book, wrote an entire book, yes, an entire book, about State Farm v. Campbell. Jeff is no doubt wincing at that factual recitation.]
Tribe represented the Campbells before the Supreme Court. He was not successful (although there were three dissenting opinions, including an absolutely scathing one from Justice Ginsberg). The court held that “[t]he punitive award of $145 million . . . was neither reasonable nor proportionate to the wrong committed, and it was an irrational and arbitrary deprivation of the property of the defendant.” Id. at 429. The case is best known for this conclusion: “Single-digit multiplier are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution, than awards with ratios in range of 500 to 1 [citation omitted] or, in this case, of 145 to 1.” Id. at 425.
I asked Professor Tribe if, in hindsight, there is anything that he would have done differently in the case. In one way yes; in one way no: “Had I known that the Court would reach out to use the State Farm case to set new limits on punitive damages, I suppose I would have been much more pessimistic about my prospects than I was before cert. had been granted, which was itself a strong sign that this would be an uphill fight. But there’s no tactical or strategic decision I would have made differently.”
Uncertain Justice: The Roberts Court and the Constitution
I had very high expectations of Uncertain Justice before I cracked the spine. The reviews on Amazon were effusive. Out of the 40, 26 were five stars and seven were four stars. They included such comments as “couldn’t put it down,” “page turner,” “addictive and informative,” “amazing read,” “jargon free,” “Laurence Tribe is a brilliant constitutional scholar, but this book is targeted at the intelligent lay reader. It is *not* dumbed down, but it is not a law text-book; it is a brilliant and incisive analysis of the Roberts court,” and “This book has taught me so much about the supreme court[.],” and on and on. [And all of these were only from the first page of reviews.]
Uncertain Justice is in fact as good as these reviews. The book is very well organized, divided into chapters that address many of the high profile issues before the Supreme Court: health care, campaign finance, freedom of speech, gun rights, privacy and others. I never relish having to describe a 400 page book in just a few words. It produces a sense of guilt that I have not given the authors due credit for all of their fine work. I’ll try to do it using the book’s stated objective.
The publisher describes Uncertain Justice like this: “This essential book arrives at a make-or-break moment for the nation and the Court. Political gridlock, cultural change, and technological progress mean that the Court’s decisions on key topics— including free speech, privacy, voting rights, and presidential power—could be uniquely durable. Acutely aware of their opportunity, the justices are rewriting critical aspects of constitutional law and redrawing the ground rules of American government. Tribe—one of the country’s leading constitutional lawyers—and Matz dig deeply into the Court’s recent rulings, stepping beyond tired debates over judicial “activism” to draw out hidden meanings and silent battles. The undercurrents they reveal suggest a strikingly different vision for the future of our country, one that is sure to be hotly debated.”
The book unquestionably achieves this objective. Take just one example. In Morse v. Frederick (2007), the Supreme Court addressed whether a high school student had the right to display a fourteen-foot banner, reading “BONG HITS 4 JESUS,” while the Olympic Torch Relay passed outside his high school in Alaska. He had been suspended for doing so. Chief Justice Roberts held that he did not. In reaching his decision, Roberts didn’t even see the case as one even implicating the First Amendment. Rather, the student lost because school officials may “restrict student speech at a school event, when the speech is reasonably viewed as promoting illegal drug use.” Roberts concluded that there was no need to sound “the First Amendment bugle.” Despite the Chief’s take on it, several other Justices saw the decision as having everything to do with the First Amendment bugle. Tribe and Matz discuss several of the opinions that addressed the case under a First Amendment rubric. Then, turning to the bigger picture, the authors explain that Morse belongs in the category of other decisions that have created “new silos of largely unprotected free speech.”
The authors illustrate, in case after case (not to mention selecting ones with interesting and compelling facts), the rationales used to achieve their results, the fractures that sometimes exist between the Justices (even when they agree with the ultimate outcome), unexpected voting groups and sometimes efforts to resolve more than just the particular case before them.
While Uncertain Justice is filled with dozens these illustrations, what it’s really about can be summed up in one paragraph. The authors note that, when Justice Kagan joined the Court, she acquired a frozen yogurt machine – earning her much goodwill. When Justice Alito came on board, Justice Breyer arranged for the Phillie Phanatic to be a special guest at a celebratory dinner. [Alito is, himself, a Phillies fanatic.] But despite all this, the authors say it all on page 220: “Still, the Roberts Court isn’t all flowers and hugs. The justices may be friendly, but they are also fierce and competitive participants in a struggle to define the Constitution. Each was carefully chosen by a president who sought a gladiator to champion particular ideals, whether through sheer force of intellect or the subtler arts of persuasion. Collegiality and compromise enjoy an important role on the Court, but it is ultimately a limited one. A shifting matrix of alliances, betrayals, and bitter defeats quickly teaches new arrivals that no vote can ever be taken for granted. Although ours is not an age of scorpions [the court has been called nine scorpions in a bottle], the Court is still rife with intrigue and power struggles.”
Yes, the Supreme Court is an institution. But it’s not really. An institution conjures up something in the singular. Something that speaks with one voice. The Supreme Court is anything but. It is the actions of nine individuals. And all of them share what Bruce Springsteen has said is a universal personality trait: “Everybody wants to be the man at the top.” Tracks, Columbia Records (1998) (“Here comes a lawyer, here comes a cop. Here comes a rich, here comes a car-hop. Goin’ on forever, ain’t ever gonna stop. Everybody wants to be the man at the top.”). Uncertain Justice demonstrates how these nine judges, er, humans, each set out to achieve this objective.
I took a couple of constitutional law classes in law school, read the BarBri chapter on it and regularly read the media coverage of the big Supreme Court decisions. While that’s not much, I knew something about the Supreme Court and constitutional law before reading Uncertain Justice. But 400 pages later I now know more about the subject than I ever have, and that includes right after taking those two classes.
A Constitutional Right To A Hibiscus Bush
When interviewing people I often try to ask them an off-the-wall question. I usually do it at the end – in case it annoys them. My opportunity to do this with Professor Tribe was handed to me on a silver platter.
I gave him this set-up. In Philadelphia Indemnity Insurance Company v. Seiden, No. 07-81127, 2008 WL 7930384 (S.D. Fla. July 29, 2008), residents of a condo in Delray Beach, Florida were sent a Violation Notice by their condo association. The Notice was related in some way to the residents’ resistance to the condo association’s efforts to replace their pink hibiscus bush with a black olive tree. The residents demanded that Philadelphia Indemnity Insurance Company, the insurer for the condo association, provide them with ‘immediate legal representation,’ by a ‘pre-eminent constitutional law attorney,’ and they specifically named Laurence Tribe as being agreeable to them to serve as their counsel. The insurance company declined to provide representation.
I asked Professor Tribe if he was aware that his services were requested for this important, and apparently constitutional, dispute? And I asked him whether he would have argued that there is a constitutional right to having a pink hibiscus bush?
Being a stand-up comic, and since it’s the reason why I ask an off-the-wall question in the first place, I was hoping Professor Tribe would yuk it up a little in his reply. But he played it straight as an arrow: “No, I am not aware of any such thing. And I see no point in speculating what I would or wouldn’t have argued if I had reason to analyze the case, something I haven’t had occasion to do.”
I said I wanted to get into Tribe’s head. Now I had. I learned that, when it comes to the Constitution and the nation’s most preeminent scholar on the subject, there is just no room for kiddin’ around.
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