"Why should we continue to care about Guantánamo?"

A student asked Linda Greenhouse on the last day of the law school course she taught on the sole topic of Guantánamo. She doesn't mention that the law school is Yale, which is the most difficult law school to gain admission to and therefore the one with the most elite set of students. Odd to think that someone who got into Yale and elected to take a course dealing solely with Guantánamo — it can't possibly be a required course — endured the experience to the last day and still asked why should I care?

I wasn't there, so I don't know the tone of the question. Greenhouse gives the context the student presented — "the Guantánamo population has shrunk even as urgent human rights crises that place many more people at risk have erupted in other parts of the world" —  and characterizes the question as "deliberately provocative and not entirely rhetorical." Greenhouse informs us that the class was provoked to "lively" "conversation" that "quickly" produced "consensus."

Of course, the intense activity of devoting a law school semester to one legal problem needs to make sense in the end. Simple human defensiveness could explain the quick trip to consensus. Why did we take this course instead of Information Privacy Law or Law and Regulation of Banks and Other Financial Intermediaries or whatever else might have captured our hearts on Yale Law School's rich menu of course offerings?

Here's how Greenhouse, in her NYT column, phrases the consensus:

We care because the Guantánamo saga isn’t only about the 162 men still held there, or the hundreds who have come and gone. It’s about the health of our own institutions, our own commitments. We look in the mirror of Guantánamo and see ourselves.

From "isn’t only about the 162 men" I gather that the students got weary of caring about those 162 men. If they are the 162 who are left, they are there for a reason. Bush put them there, but Obama has kept them there. Must we really go over and over the question of whether it all was done precisely right? And then you see it: the place of refuge from this nagging doubt about whether these 162 men deserved all this elite law study.

And that place is: ME! This is about ME! This is US! This is WHO. WE. ARE. Ah, relief. So I haven't been staring for months into the dismal stories of 162 shady-but-perhaps-procedurally-abused characters. I've been staring into a mirror at myself. Ah! The relief! It was about me!

That was where the elite students quickly found relief from provocation. I suspect that practically any particular legal problem can support the claim that it's really about the legitimacy and principle of the entire legal system, so the quick consensus position — to me, seen from a distance — feels more like evidence of the students' desire to free themselves from the anxiety of having paid a semester's worth of attention to something they believed they would care about, because they liked the idea of being the sort of people who do care when others do not care, but then they saw that they did not really care at least not quite that much.

And then the relief comes, and it has sufficient resonance with the original choice of what to study: I am studying myself caring about the people I wanted to believe I cared about. I've been looking into the mirror to see if I care, and I must now see that I care, or it doesn't make sense to have chosen to stare for months into a mirror to see if I care. I do care. I care about me caring.

Why is Linda Greenhouse singling out Justice Scalia in this op-ed about the question of religious exemptions to the Affordable Care Act?

The Supreme Court granted cert. in the Hobby Lobby case, in which a business seeks to avoid the requirement to provide coverage for abortifacient-type birth control on the ground that it burdens its free exercise of religion and is not justified by a compelling government interest. This claim is based on the Religious Freedom Restoration Act, a statute that was designed to give religious believers rights that the Supreme Court had recently determined were not guaranteed by the Free Exercise Clause of the Constitution. The case that restricted the scope of the Free Exercise Clause was Employment Division v. Smith, and the majority opinion was written by Antonin Scalia.

That is, of all the Supreme Court Justices who have resisted constitutional arguments for giving special exemptions for religion, the first name on your list should be Antonin Scalia!

But Linda Greenhouse's piece ends:

If the court grants the exemption the companies seek, its decision will most likely come packaged as an exercise in statutory interpretation. Only the old culture warrior, Antonin Scalia, can be counted on to acknowledge the deeper issues in play. But those issues will be there nonetheless, and that’s what makes these cases so compelling.

Packaged as an exercise in statutory interpretation? It is an exercise in statutory interpretation.

Without the Religious Freedom Restoration Act, there would be vanishingly little hope for an exemption. Employment Division v. Smith would almost surely determine that the federal government's law binds everyone in the same way. And you'd be able to thank Justice Scalia for his crisp, hard-core rule that lets legislators do things like that and keeps the judiciary in restraint.

Greenhouse knows all that. She refers and links to Smith, though she doesn't mention that Scalia wrote it. She knows the legal claim is based on the Religious Freedom Restoration Act. It's as if there's some secret NYT rulebook that says: When writing about the Supreme Court, always attack Scalia.

The Greenhouse idea is to say this case is really about sex, because opposition to birth control and abortion is really about sex, and then Scalia is supposedly a "culture warrior" on sex issues. But even if you could accept that opposition to abortion and birth control is really about sex, what does Scalia care about sex? He's not a culture warrior! To say so is to distort the opinions of his that accuse other members of the Court of taking sides in the culture war. When he makes that accusation, he's promoting judicial restraint and deference to democratic decisionmaking. Sometimes that restraint manifests itself in cases where legislatures have done things like criminalize sodomy or restrict abortion, so he'd stand back and let social conservatives win. But that would not be because he's a "culture warrior." He's a committed pacifist, looking on, letting the victors in the legislative battle keep their spoils.

But the Hobby Lobby case isn't about narrowly interpreting the Constitution to let legislative majorities have their way. It's a conflict between 2 statutes, and it was absolutely not Antonin Scalia who encouraged giving religious exemptions. It was Congress, which was reacting to Scalia's rejection of constitutional exemptions. The RFRA bill was sponsored in the House by Congressman Chuck Schumer and in the Senate by Teddy Kennedy. (Each had a GOP co-sponsor). The Democrats controlled Congress, but the Republicans all voted for it too (with the sole exception of Jesse Helms).

From the NYT article in 1993 when President Bill Clinton signed RFRA into law:

President Clinton hailed the new law at the signing ceremony, saying that it held government "to a very high level of proof before it interferes with someone's free exercise of religion."...

President Clinton voiced wonder today at this alliance of forces that are often at odds across religious or ideological lines. "The power of God is such that even in the legislative process miracles can happen," he said. 

This is about statutes and the politicos who produce them, not the judges who stand back and let them trip all over themselves pandering to everyone. If the Congress that passed the Affordable Care Act had wanted to exempt it from the Religious Freedom Restoration Act, it could have done so explicitly. It did not. Why should the Court cut back Congress's absurdly broad RFRA to help it out with what it failed to bother to do with the ACA?

Congress deserves another kick in the ass like the one the unanimous Supreme Court gave it in O Centro Espirita Beneficiente Unio do Vegetal (letting a religious group use the psychedelic drug hoasca despite the ever-so-important federal statute, the Controlled Substances Act).

Why is the NYT publishing yet another article on the fact that Justice Ginsburg is not resigning from the Supreme Court?

I was a bit surprised to see this article, with a big picture, at the top center of the NYT on-line front page today. It's utter non-news. So what's the point? She did an interview with Adam Liptak, but just last June, we'd heard the same thing, in the pages of the NYT, from Linda Greenhouse.

Let's look at Liptak's article as opposed to the front-page teaser, which says: "Amid calls from some liberals that she step down in time for President Obama to name her successor, Justice Ruth Bader Ginsburg said she was fully engaged in her work." Think about why that is the teaser. But Liptak is writing because he got an interview:

Unless they have a book to sell, Supreme Court justices rarely give interviews. Justice Ginsburg has given several this summer, perhaps in reaction to calls from some liberals that she step down in time for President Obama to name her successor.

So maybe Ginsburg is talking because of political pressure about Obama's appointment opportunities, but I find that hard to believe. She's obviously not talking about that, so it's an editorial insertion, and it's therefore what the NYT editors think will pique the interest of readers. To me, a reader, it seemed really dumb, flaunting the nonnewsiness of the article. Here's another Obama-related insertion:

Were Mr. Obama to name Justice Ginsburg’s successor, it would presumably be a one-for-one liberal swap that would not alter the court’s ideological balance. But if a Republican president is elected in 2016 and gets to name her successor, the court would be fundamentally reshaped.

In case you didn't know!

So. Onto the substance of the interview:

“I am now the most senior justice when we divide 5-4 with the usual suspects,” she said.

The last two terms... were...  “heady, exhausting, challenging.”

“[I]f it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”

What if it's measured in terms of acceptance of the duty to enforce the Constitution? That's a trick question. Answer: It's the same thing! (And that makes this post another occasion for my favorite tag: Paraphrase.)

The article goes on to talk about the Lilly Ledbetter Fair Pay Act of 2009, which was a congressional response to Ledbetter v. Goodyear Tire and Rubber Company, in which Ginsburg dissented. She notes that there were 2 Title VII case this past term, but that Congress is unlikely to reverse them by statute, because, she says, "this Congress doesn’t seem to be able to move on anything," and: "In so many instances, the court and Congress have been having conversations with each other, particularly recently in the civil rights area.... So it isn’t good when you have a Congress that can’t react."

Do you see Liptak's sleight of hand there? He went from her characterization of the Court as activist because of its "readiness to overturn legislation," to the idea of legislation overturning a court decision, but Congress can't overturn a decision that "overturns" legislation, and Ledbetter wasn't a case that overturned legislation! Ledbetter was an interpretation of a statute, so Congress was free to amend it and did. To interpret a statute isn't to overturn it. It's to read it, and Congress can change the text if it doesn't like that reading. It's not "activist" to decline to give an expansive interpretation to a statute, which is what Ginsburg wanted in her Ledbetter dissent.

When a statute is overturned because it's inconsistent with the Constitution, you can call that "activist" or you can call that meeting a judicial duty, but you can't go to Congress to get that decision overturned. [NOTE: Congress can initiate a constitutional amendment, and there are sometimes ways to rewrite a statute to solve a constitutional problem. I don't think Ginsburg was referring to that.]

Ginsburg does display some resistance to activism with respect to constitutional rights:

She said that as a general matter the court would be wise to move incrementally and methodically. It had moved too fast, she said, in Roe v. Wade, the 1973 decision that established a constitutional right to abortion. The court could have struck down only the extremely restrictive Texas law before it.

“I think it’s inescapable that the court gave the anti-abortion forces a single target to aim at,” she said. “The unelected judges decided this question for the country, and never mind that the issue was in flux in the state legislatures.”

The question of same-sex marriage is also in flux around the nation. In June, the court declined to say whether there was a constitutional right to same-sex marriage, allowing the issue to percolate further. But Justice Ginsburg rejected the analogy to the lesson she had taken from the aftermath of the Roe decision.

“I wouldn’t make a connection,” she said.

Hmm. Why not?! I'm guessing it's because Roe v. Wade is already decided. Nothing she can do will change that. The same-sex marriage issue is not yet completely resolved, and she will, in most likelihood, participate. That's a reason to simply refuse to talk about it, but I suspect, in addition to that, she will embrace the right with even more breadth and confidence than the Court in Roe v. Wade accepted abortion. This notion of allowing the difficult matter to be worked out in the political process... she won't make a connection.

***

In my Constitutional Law II exam last spring, written before the Supreme Court's decision in Windsor, I began a question this way (boldface added):

Here’s a section from one of the briefs in United States v. Windsor, the case in which the Supreme Court is considering whether a section of the Defense of Marriage Act is unconstitutional.

The benefits of our federalist system resonate with especial clarity regarding the same-sex marriage debate…

Preemptively short-circuiting the democratic process by announcing only one permissible policy choice by any government under the Constitution destroys these benefits and should not occur unless the Constitution clearly mandates the legitimacy of only one outcome. The Nation's experience in the wake of Roe v. Wade bears this out. See Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, (remarking that Roe has "sparked public opposition and academic criticism, in part . . . because the Court ventured too far in the change it ordered and presented an incomplete justification for its action). J. Harvie Wilkinson, III, Of Guns, Abortions, and the Unraveling Rule of Law, (observing that Roe "shut down this process of legislative accommodation, polarizing the debate and making future compromise more difficult," leading "[m]any scholars" to comment on the "Roe backlash" and the intense partisan divide that has resulted).

Outrage in the wake of Roe occurred despite increasing public support for abortion and a "marked trend in state legislatures 'toward liberalization of abortion statutes."' Ruth Bader Ginsburg, Speaking in a Judicial Voice (quoting Roe v. Wade); see also Thoughts on Autonomy ("The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting."). But the Court's "[h]eavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict." Thoughts on Autonomy, supra, at 385-86. Unlike the Court's previous decisions concerning gender classifications, Roe provoked backlash because it "invited no dialogue with legislators" and "seemed entirely to remove the ball from the legislators' court." Judicial Voice, supra, at 1205.

Not only did Roe produce conflict, it was also an ineffective engine of social change. The Court's abrupt adjustment of national policy "may have prevented state legislatures from working out long-lasting solutions based upon broad public consensus." Cass R. Sunstein, Three Civil Rights Fallacies. Professor Sunstein observed that Roe's effectiveness "has been limited, largely because of its judicial source."

Of course, Justice Ginsburg didn't agree with the side that wrote that. She showed — to use her definition of activism, above — a readiness to overturn legislation.

"Classic Linda Greenhouse awfulness."

Opines Stephen Bainbridge:

First, there's the implicit claim that she is able to divine the inner workings of [Chief Justice] Roberts' decision making processes. She knows what's in his "head" and "heart," as if she were some psychic shrink....

Speculating about what's really going on behind the argle-bargle in the written opinions is something we must do to avoid falling for propaganda. I use the term "argle-bargle" to remind you of what Justice Scalia wrote in his dissenting opinion in the DOMA case, Windsor:

[T]he real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by "'bare . . . desire to harm'" couples in same-sex marriages.

And that's just what Scalia feels is acceptable within the rigors of judicial opinion-writing. We must feel impelled to pull apart the judicial verbiage that we sometimes call the "decision" to try to see The Decision, which is to say, the mental processes that actually took place in the minds of the judges.

Of course, we can't really know. None of us, not even Linda Greenhouse, can divine the inner workings of anyone else's head. (Thank God! What a world this would be if we could!) But there is no more valuable inner working of your own head than to contemplate the inner workings of the heads of others. What fools we are if we take other people's words at face value! But — and here Professor Bainbridge is right — we are wrong if we present our speculation as the truth. If we posture as certain, those who don't like what we say can smack us down. You can't know that!

But I speculate that Linda Greenhouse — in the secret inner workings of the head that only she can access — knows her "The Real John Roberts Emerges" overstates what she knows about the inner workings of the mind of John Roberts. I presume that she has her reasons for writing like that. I presume, I don't know, but I could — if the inner workings of my mind cranked in this direction — write a blog post titled "The Real Linda Greenhouse Emerges." Or "The Real Stephen Bainbridge Emerges."

See if you can read my mind and tell why I don't think such cogitations need to be spelled out.

Justice Ruth Bader Ginsburg — "Is she about to retire, everyone asks, to permit President Obama to name her replacement?"

Linda Greenhouse writes with what sounds like authority: "The answer is no, she’s healthy and loves her job."

Why is Fisher taking so long?

Linda Greenhouse says:

One reason might be that Justice Anthony M. Kennedy, who almost certainly received the opinion assignment in the Texas case, isn’t going far enough in that case to satisfy the other conservative justices. Under this theory, those justices responded to what they saw as a frustratingly narrow Kennedy opinion by jumping aboard the Michigan case as the next potential vehicle for shutting down affirmative action....

Fisher is the case argued last October, about the University of Texas affirmative action program, but the court granted cert. just last March in a case about Michigan's ban on all affirmative action in public university admissions. (That case is called Schuette.)

Gallup poll: 64% of Americans agree that "The decision to have an abortion should be made solely by a woman and her physician."

In the summer of 1972, half a year before the Supreme Court decided Roe v. Wade.

A majority of all identified groups, including Catholics, agreed with that statement. There was almost no difference between men and women. The group expressing the strongest agreement – 68 percent – was made up of Republicans. George Gallup’s syndicated column discussing the poll results, “Abortion Seen Up to Woman, Doctor,” ... was... in Justice Blackmun’s files.

And Justice Blackmun, the Nixon appointee who wrote the Roe v. Wade opinion, had that column in his files. Also in his files:

[A]n account by Dr. Jane E. Hodgson, a Mayo Clinic-trained obstetrician/gynecologist, of her arrest in St. Paul in 1970 for performing a first-trimester abortion for a patient who had contracted German measles in the fourth week of pregnancy. (In those days before immunization eradicated the threat posed to pregnant women by German measles, the disease commonly caused serious birth defects.) Justice Harry A. Blackmun, formerly the Mayo Clinic’s lawyer, knew Dr. Hodgson’s story; I had found her account, published in the clinic’s alumni magazine, in the justice’s files at the Library of Congress.

That's from a long column by Linda Greenhouse, referencing historical materials collected here. The column also talks about the post-Roe political strategy of the Republican Party, which we were just discussing a couple days ago here. The idea is that Republicans were for it before they were against it.

(Feel free to relate this post to the previous post about Second Amendment rights, which Democrats don't believe in.)

Linda Greenhouse and Reva Siegel "say one of the things that really politicized the abortion issue was the efforts of those working to re-elect President Richard Nixon in 1972."

"His aides, including future Republican presidential candidate Patrick Buchanan, wanted to lure Northern Catholic voters, who had traditionally voted Democratic, over to the Republican Party."

Nixon "was strongly advised by his strategists ... to make a play for a Northern urban Catholic Democratic vote," says Greenhouse. "A kind of Northern strategy that mirrored the Southern strategy."

In fact, up until then, top Republicans tended to be more in favor of abortion rights than Democrats, including, for much of his first term, Nixon himself....

So, taking his aides' advice, Nixon switched sides on abortion, even reversing an earlier relaxation of an abortion ban in military facilities.

"But what 'borking' really amounted to was holding the nominee’s vigorously expressed views up to the light for public inspection."

Says Linda Greenhouse:

In five days of testimony, then-Judge Bork – a former professor of mine whom I liked and respected – had every opportunity to make his case. His ideas were fully aired and considered. By a vote of 58 to 42, the senators, having heard from their constituents, concluded that his constricted constitutional vision, locked into the supposed “original intention” of the framers, was not what the country needed or wanted....

... Robert Bork couldn’t accept the legitimacy of his defeat.... Judge Bork was hardly unique in his sense of entitlement, but it ran so deep that it prevented him from understanding the obvious dynamic of what happened. Because he had been nominated to fill the “swing seat” vacated by Justice Lewis F. Powell Jr., a moderate conservative whose retirement left nearly every issue of constitutional moment hanging in the balance, his nomination became a public referendum on whether the court should move decisively to the right or stay basically the same. The status quo won out.

The issue of standing in the Supreme Court's same-sex marriage cases.

Linda Greenhouse explains the 2 standing problems in a way that is accessible to the general reader.

The Windsor case is especially striking, because the plaintiff's stake in the case is knock-you-over-the-head clear and tangible:

Ms. Windsor owes more than $300,000 in federal estate tax on the property left to her by the woman to whom she was legally married in the eyes of New York State. Had she been married to a man, she would have inherited the property tax-free. With DOMA barring the federal government from recognizing same-sex marriage, and the Obama administration taking the position that it will enforce the law until the Supreme Court or Congress tell it otherwise, there certainly seems to be a controversy between the parties sufficient to meet the test of Article III jurisdiction.

But the Obama administration declines to defend the constitutionality of DOMA, and Windsor won in the lower courts, making things nonadversarial, and the federal courts can only resolve actual controversies between the parties. But it's not as if DOMA has gone away. It still affects people, and Congress isn't about to repeal it.

Democrats in Congress wanted no part of defending DOMA, even though the statute had passed both houses in 1996 by big bipartisan majorities and was signed into law by President Bill Clinton. So a five-member House leadership body called the Bipartisan Legal Advisory Group decided, over the objections of its two Democratic members, to take over the executive branch’s abandoned defense of DOMA....

The question in the case is whether this Bipartisan Legal Advisory Group can take over defending the law and thereby preserve the adversarial quality of the case. Obviously, it will be litigated with intensity and excellence. The Group has Paul Clement as its lawyer. But that's not the point in standing doctrine.