The Supreme Court case of Snyder v. Phelps, brought by a bereaved father against anti-gay demonstrators who protested the funeral of his Marine Corps son, was heard the first week of the term, on October 6, and we still don’t have a decision. So a recurring question as I visited law schools this February recess was: What’s holding up Snyder v. Phelps?
In the first chapter of Stanley Fish’s new book, “How to Write a Sentence: And How to Read One,” he extols a sentence from Scalia’s dissent in Lee v. Weisman, the 1992 case in which the majority said prayer at a Providence, R.I., middle school graduation violated the required separation of church and state. Fish notes that the Court majority referred to the “psychological coercion” of students in attendance, and he continues, “This was too much for Justice Scalia, who, after citing a fellow jurist’s complaint that establishment clause jurisprudence was becoming so byzantine that it was in danger of becoming a form of interior decorating, got off this zinger: ‘Interior decorating is a rock-hard science compared to psychology practiced by amateurs.’”
Antonin Scalia, past and present, had a starring role at today’s Supreme Court arguments in Federal Communications Commission v. AT&T. And I couldn’t help but be reminded of Scalia’s past views on the Freedom of Information Act, views definitely off-stage.
As I explain in this article, the FCC was appealing a lower court decision that would allow corporations to claim a “personal privacy” exemption under the FOIA law intended to make government more transparent. That exemption traditionally has been given only to individuals for potentially embarrassing situations.
All week, since California Lawyer reported (and Huffington Post widely circulated) Justice Scalia’s remarks in an interview that the Constitution’s Fourteenth Amendment doesn’t protect women from discrimination, I’ve been getting calls from reporters and other Court watchers asking: Is this new? Are you shocked? The answers are no and no. This is vintage — archaic — Scalia. And it’s important to note that this is one area of the law in which Scalia has been unpersuasive and alone.
For decades and with votes by other conservative justices, the Supreme Court has said the Fourteenth Amendment’s guarantee of equal protection covers women. This is not a close call.
When President Obama chose Sonia Sotomayor in 2009 to succeed retiring Justice David Souter, some Court observers thought there was one area of the law in which she might actually be more conservative than Souter: defendants’ rights. Sotomayor is a former prosecutor who, as a lower court judge, voted regularly against prisoners’ challenges to their cases. But in her first term on the Supreme Court, she showed no signs of joining conservatives against defendants and in fact was notable among liberals in support of criminal rights, for example, in her dissenting opinion in Berghuis v. Thompkins.
As criticism of capital punishment is up in some quarters and use of the death penalty continues to decline nationally, Justice Scalia remains a vigorous voice for carrying out state executions.
This week he dissented from a high-court order favoring an Alabama murderer whose death sentence had been set aside by lower federal courts. The justices by 6-to-3 rejected a petition from Alabama officials protesting a new sentencing hearing for James Charles Lawhorn, who with his brother had killed their aunt’s boyfriend in 1988, in exchange for $100 from the aunt.
Very few people have been able to convince Justice Scalia to buy a novel argument or take a new turn. Jim Lynn was one of them. I was reminded of that today when I saw the obituary for James T. Lynn in the Washington Post. During the Nixon administration, Lynn had been undersecretary in the Commerce Department and secretary of the Department of Housing and Urban Development. When President Ford took office, Lynn became director of the Office of Management and Budget. The Post described Lynn as having a “voracious appetite for work” and “scalpel-sharp intellect.”
When he dissented, Supreme Court Justice David Souter, who served 1990-2009, tended to do it quietly. He rarely read a dissenting opinion from the bench, as fellow liberal Stephen Breyer increasingly does. He never engaged in hyperbole, as conservative Antonin Scalia has (e.g., Scalia said the 2009 Boumediene decision “will almost certainly cause more Americans to be killed”). Yet several of Souter’s dissents endure, notably his 2007 protest in Bowles v. Russell, which will be back before the justices this week.
When I drive directly from my northwest Washington, D.C., home to the Supreme Court, without stopping at the office, I take North Capitol Street south toward the Hill. And when I’m just about a half mile from my turn off of North Capitol, I hit the spot where I first heard on the radio that fateful Saturday, December 9, that the Court had halted the Florida recounts in the presidential election of 2000.
As the New York Times Book Review noted in a Sunday column, American Original is now out in paperback, and I’m moving on. I’m sure Justice Scalia will continue to give me plenty of material when the new term begins on the first Monday in October. Justice Sandra Day O’Connor, my first subject, has proved newsworthy even in retirement.
But I’m mostly turning now to my next project, centered on Justice Sonia Sotomayor. This effort will not be through the lens of standard judicial biography, however, as the first two books were. Sotomayor is in only her second year on the Court, of course, and my earlier subjects had each served more than 20 years when I began my research.