Since President Obama’s nomination of Elena Kagan last week to succeed retiring Justice John Paul Stevens, there has been a lot of talk about whether she would be a persuasive force in moving Justice Anthony Kennedy to the left. I’ve felt that much of this discussion ignores the limits of a new, junior justice, and I think Monday’s decision in the juvenile sentencing case offers a reminder of Justice Kennedy’s own force.
As Supreme Court justices circulate draft opinions among themselves and respond to each other’s writing, no two justices engage in a tit-for-tat like Antonin Scalia and John Paul Stevens.
These defenders of conservatism and liberalism, respectively, disagree on big issues, of course, but they are also the two most likely to tussle down in the weeds — on the meaning of a statute, interpretation of precedent or nuances of a legal test. It is not unusual for Scalia to make some assertion that sets off Stevens, who then fires back in his opinion, which prompts Scalia to return the volley, which gets Stevens going again.
Justice Scalia has been voicing his disdain for legislative history for a quarter century now. Today we celebrate the latest case in point — and his birthday.
Scalia does not believe federal judges trying to interpret a statute should look to congressional committee reports, floor speeches and other artifacts of the legislative process. He says judges should look solely at the text of the law and related statutes to determine Congress’s intention.
“Have you ever heard a turkey gobble?” Justice Scalia asked me during a visit to his chambers. “It’s a very strange sound, like a wooden rattle. [You] hear that far away and then make sounds like a hen to induce [the turkey] to come closer and closer. Finally, he sticks his head over a log, and you have to take your shot, or else you’ve lost him. Turkeys are very wily creatures. They have superb eye-sight and they’re very cautious. You get one shot. If you miss, the whole day’s ruined.”
As legal commentators continue to debate last Thursday’s decision in Citizens United v. Federal Election Commission, I want to add a few observations related to Justices Scalia and Stevens. As Stevens read his poignant — sometimes halting — dissenting statement from the bench, he noted that the “seed that flowered” in the majority opinion had been planted by dissenters in the 1990 Austin v. Michigan Chamber of Commerce. In his written opinion Thursday, Stevens took specific aim at Scalia– an architect of the view that prevailed last week.
The week is about to end without a ruling from the Supreme Court in Citizens United v. Federal Election Commission, regarding governments’ authority to regulate corporate and labor union spending in elections. Both sides have been anxiously awaiting a decision in the case that was argued last September and could affect big-money expenditures in this fall’s mid-term elections and all future races.
So sure were many campaign experts that the ruling was coming this week that they deluged reporters with notices of planned teleconferences and statements of how significant the decision was likely to be.
The Supreme Court heard a dispute in November testing whether the Eighth Amendment’s ban on cruel and unusual punishment prevents states from sentencing someone under 18 to life-without-parole for a non-homicide crime. (Read my preview story about the two cases from Florida and a recounting of the Court’s oral arguments.) A week after the arguments, through a coincidence, I was paired at a table at the National Press Club Book Fair and Authors’ Night with a man named R. Dwayne Betts, who had a role in the cases. Betts was at the Book Fair because he has written a memoir called A Question of Freedom about surviving and coming-of-age in prison. When he was 16 he committed a carjacking in Virginia. In his memoir, he recounts his eight-year prison experience and how he escaped into books and began writing essays and poetry. He has been out nearly five years and is now a graduate student. In the Supreme Court cases of Graham v. Florida and Sullivan v. Florida, Betts joined an amicus curiae brief with such other former juvenile offenders as actor Charles Dutton and former Wyoming Sen. Alan Simpson. “A sentence of life in prison without the possibility of parole, like a death sentence, extinguishes all hope that a juvenile offender might one day contribute to his or her community …” they said in their brief, siding with the Florida defendants and against the option of life-without-parole for juveniles. As it happened, Justice Anthony Kennedy, who is often a crucial swing vote, asked during arguments why juveniles — and not adults — should have “a constitutional right to hope.” The lawyer for one of the Florida youths serving life said, “the juvenile is different than the adult …. (and) has an inherent capacity to change.” The lawyer said minors should be allowed review of a life sentence and a chance for parole as they mature. A majority of the justices appeared torn over how to resolve the case. A ruling is likely by next spring.
Justice Sonia Sotomayor, who joined the Court last August, issued her first written opinion today, in the case of Mohawk Industries v. Carpenter. (Read the decision, which also was the first of the Court’s current term.) The case, involving when discovery orders related to the attorney-client privilege may be appealed, had not been closely followed by reporters. But the decision caused a small stir in the press room today, simply because it was the new justice’s first and because it was not fully signed by all eight of her colleagues. Justice Clarence Thomas concurred in part and filed a separate statement disagreeing with some of Sotomayor’s reasoning.