The Enigmatic Roberts Court -- October 19, 2007 Symposium at Pepperdine University, Malibu
Presented by the Pepperdine School of Law in conjunction with the National Constitution Center
The Roberts Court has proven enigmatic. The number of opinions is down and, depending upon your point of view, precedent either honored or hollowed out from the inside. Initially seeking and achieving some notable consensus anchored upon narrow ruling, the Court's work product at the end of two Roberts terms has that familiar 5-4 texture.
Statutory cases abound. The more controversial Constitutional decisions have invited clearly stated disagreement, without some of the gratuitous, biting sarcasm of the past. Decisions are a bit leaner presenting straightforward legal analysis in fewer words. Business in particular has more reason to cheer than jeer, with punitive damages subject to new procedural limits, claims hinged upon alleged wage disparities subject to a narrowly construed time bar, and antitrust complaints more readily dismissed if implausible.
Justice Kennedy is said to hold the balance, yet the intellectual and competing savvy of Chief Justice Roberts and senior Justice John Paul Stevens often determine how that balance is struck. Justice Thomas has contributed a memoir of memories that neither he nor now much of America can forget, all the while continuing his penchant for being the most silent Justice at argument and the most intellectually provocative one in writing. Justice Breyer's book on Active Liberty still requires some active unpacking. Justices Alito and Ginsburg carry out their work with admirable diligence, and with respect to each other, great dissent. And Justice Souter remains one of the most thoughtful analytical examiners from the bench and one of the least perceptible opinion writers.
Meanwhile, some speculate that we are either on the brink of a Scalian moment or facing an outbreak of surprisingly liberally-minded outcomes determined by the vicissitudes of case selection. Most concede at least we are in a holding pattern of sorts, waiting yet again for that one additional vote--liberal or conservative--from a new administration. Yet, if we are a "rule of law," is all this talk of liberal/conservative really warranted?
Part 1 -- Overview of the Roberts Court: 1 hr. 41 minutes.
(Cue at 11:55) Joan Biskupic, author and Supreme Court reporter for the USA Today evaluates the switch of Justice Sandra Day O'Connor for Justice Samuel Alito, giving particular focus to the developments in the area of employment discrimination and abortion.
(Cue at 26:00) Professor Jeffrey Rosen of the George Washington University Law School evaluates the separation of powers and the deference or lack of it given by the Court to executive decision-making in matters of both domestic and foreign affairs.
(Cue at 36:40) Professor Douglas Kmiec of Pepperdine Law School evaluates the court's decision narrowing the taxpayer exception for bringing an establishment clause challenges and then evaluates Roberts Court developments generally with respect to the religion clauses and the prospects for doctrinal change or clarification.
(Cue at 54:35) Professor Vikram Amar of the University of California at Hastings and Davis evaluates developments in the area of criminal law, most particularly as it pertains to the death penalty, federal sentencing and the application of the exclusionary rule.
(Cue at 1:13:08) Professor Kathleen Sullivan of the Stanford Law School evaluates developments in the area of free speech, most notably, as it relates to conditions on government spending, campaign finance limitations, and the treatment of speech and school and workplace.
(Cue at 1:30:25) Dean Kenneth Starr of the Pepperdine Law School provides an overview of the Roberts Court and business cases pertaining to punitive damages, the dormant commerce clause, antitrust doctrine and more.
Part 2 -- Roundtable on the work of the Roberts Court in its first two terms: 17 minutes
This roundtable discussion begins with a further appraisal of the Roberts Court in the First Amendment area. An extended discussion ensues over the extent to which the Roberts Court is signaling greater limitations on speech, premised upon monetary conditions, unique places such as workplaces or schools, or because of an assessment that the speech involved is of low value. Beyond the area of free speech, the Roberts Court's approach to business cases, particularly punitive damages and the acceptance or non-acceptance by the new members of substantive due process is examined.
Part 3 -- Supreme Court reasoning on trial: 1 hour 21 minutes.
This is a mock trial of the reasoning of the Supreme Court's decision in Parents Involved v. Seattle School District Number 1. The standard for review is original understanding, defined as including text, history, structure and compatible precedent. The "legal witnesses" are two members of the Ninth Circuit: the Honorable Diarmuid O'Scannlain and the Honorable Stephen Reinhardt. Sitting in judgment are Professor Vikram Amar of the University of California at Hastings, and soon at Davis, as well as Professors Bernard James, Robert Pushaw, and James McGoldrick of the Pepperdine Law School.
The direct and cross examinations yield an interesting and provocative (and sometimes amusing) inside look at judicial decision-making and the sources available to it. It is reasonably clear that original understanding without modern precedent is not wholly the basis of the Roberts plurality opinion, nor the basis of the Breyer dissenting opinion. The question left to resolve is by what method of interpretation the Constitution ought to be applied? The question is taken up in the final Roundtable.
(Cue at 1-40:00) Judge O'Scannlain is the witness called to defend Chief Justice Roberts' plurality opinion. Doing the direct examination of Judge O'Scannlain is Professor Kmiec of Pepperdine Law School. Cross examining Judge O'Scannlain is Jeffrey Rosen of the George Washington University Law School.
(Cue at 40:00-1:21:21) Judge Reinhardt is the witness called to defend Justice Breyer's dissenting opinion. Direct examination of Judge Reinhardt is done by Kathleen Sullivan of the Stanford Law School. The cross examination of Judge Reinhardt is done by Dean Ken Starr of the Pepperdine Law School.
Part 4 -- Roundtable on the Roberts effort at consensus, competing methods of constitutional interpretation, judicial personalities, and a quick
look at the current docket (Term 3 of the Roberts Court): 51 minutes
Professors Kmiec, Sullivan, Rosen, and Amar along with Dean Starr and author and journalist Joan Biskupic engage in a fast-paced examination of the Chief Justice Roberts efforts at building consensus on the Court, with the consensus being that consensus will be elusive. Professor Kmiec outlines a number of competing theories of constitutional interpretation and asks the panel to then address them in terms of judicial personalities. The panel finds evidence of multiple theories at play, but with none of them perfectly explanatory. That said, the insights into each judicial personality may explain more than the formal doctrine. The panel ends with some surprising selections of cases to watch and the current term.
To view the Symposium agenda and participant biographies, please Click Here.