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An Enigmatic Court?

Examining the Roberts Court As It Begins Year Three

Friday, October 19, 2007, 2:00 - 6:30 pm

"I cannot forecast to you the action of [the Supreme Court]. It is a riddle, wrapped in a mystery, inside an enigma; but perhaps there is a key." --Paraphase of Winston Churchill (1939)

Click here to watch the webcast

The Constitutionalists:

Vikram Amar | Joan Biskupic | Doug Kmiec | Diarmuid O'Scannlain
Stephen Reinhardt | Jeffrey Rosen | Kenneth Starr | Kathleen Sullivan


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? Perhaps,as one wag would have it, it is enough simply to contemplate whether William Howard Taft will long remain the only former President to serve on the Court.

In the best Pepperdine tradition, this will be a vibrant symposium with competing perspectives on the jurisprudence of the Roberts Court at the start of Term 3.

We appreciate your joining with us for this occasion.

Summary Agenda

2:00-3:30 p.m.
This exciting Constitutional "Double-bill" will include an introductory close examination of the diverse work of Roberts Court over the past two terms, with special focus on the term ahead- a thread which will run throughout the whole event.

3:30-4:30 p.m.
After a short break, the event will continue with a rousing Mock Trial of Constitutional Interpretation. On trial will be an examination of the competing interpretative approaches in Supreme Court's decision on "racial tie-breakers" in Parents' Involved v. Seattle School District (2007), with a unique appearance by special "legal witnesses" The Honorable Diarmuid O'Scannlain, and The Honorable Stephen Reinhardt, both of the United States Court of Appeals for the Ninth Circuit.

Douglas W. Kmiec and Kenneth W. Starr will appear for the Parents Involved majority opinion written by Chief Justice Roberts, and Kathleen Sullivan and Jeffrey Rosen will represent the dissenting opinion by Justice Breyer.

4:30-6 p.m.
Further dialogue by esteemed symposium participants, guided by Kmiec will examine the question of "consensus" on the court; to what degree can the Chief lead the Court to consensus? What patterns have emerged thus far? To explore this idea some more, distinguished participants will present special profiles on the current Justices of the High Court, and their unique contributions to the life of the Court (i.e. Kennedy, the "man in the middle"; Scalia --the "originalist"; Thomas --the intellectual "provocateur"; Breyer --the "hypothetical-spinner"; and Stevens --the most extraordinary "senior citizen").

6:00-6:30 p.m.
The event will conclude with a lively time of predictions about Year Three. Panelists will engage in a living-room-style discussion, guided by audience questions (from those live at the event and those participating live via simulcast from the National Constitution Center in Philadelphia), and moderation by Douglas W. Kmiec. At issue: the Court?s current docket and a look at the road ahead for criminal practice, sentencing, voting rights, securities law liability for lawyers, accountants, and other matters at issue this term.

Symposium Panelists

Vikram Amar

Vikram Amar joined the University of California-Hastings law faculty in 1998 after teaching at the University of California at Davis School of Law since 1993. He has also taught as a Visiting Professor at the University of California at Berkeley School of Law each year since 1995. In 1997 he taught at the University of California at Los Angeles School of Law. He received a bachelor's degree in history from the University of California at Berkeley and his JD from Yale, where he served as an articles Editor for the Yale Law Journal. Upon graduating from law school in 1988, Professor Amar clerked for Judge William A. Norris of the United States Court of Appeals for the Ninth Circuit, and then for Justice Harry A. Blackmun of the United States Supreme Court. After that he spent a few years at Gibson, Dunn & Crutcher, devoting half of his time to federal white-collar criminal defense and the other half to complex civil litigation. Professor Amar writes, teaches and consults in the public law fields, especially constitutional law, civil procedure, and remedies.

Joan Biskupic

Joan Biskupic is the author of Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice (Ecco/ HarperCollins). She is currently working on a book about Justice Antonin Scalia to be published by Farrar, Straus & Giroux. Before joining USA Today in June 2000, Biskupic was the Supreme Court reporter for the Washington Post (1992-2000) and legal affairs writer for Congressional Quarterly (1989-1992). She is the author of several legal reference books, including Congressional Quarterly's two-volume encyclopedia on the Supreme Court (3rd ed., 1996, with coauthor Elder Witt). She is a regular panelist on PBS's Washington Week. Biskupic holds a law degree from Georgetown University, a master's degree in English from the University of Oklahoma, and a bachelor's degree in journalism from Marquette University.

Douglas W. Kmiec

Douglas Kmiec is Caruso Family Chair in Law and Professor of Constitutional Law, Pepperdine University. He served as head of the Office of Legal Counsel (U.S. assistant attorney general) for Presidents Ronald Reagan and George H. W. Bush, a position previously held by the late Chief Justice Rehnquist and Justice Scalia. The former dean and St. Thomas More Professor of the law school at the Catholic University of America, Professor Kmiec was a member of the law faculty at the University of Notre Dame for nearly two decades. At Notre Dame, he directed the Thomas White Center on Law and Government and founded the Notre Dame Journal of Law, Ethics, and Public Policy. Professor Kmiec has been a White House Fellow, a Distinguished Fulbright Scholar on the Constitution (in Asia), the inaugural Visiting Distinguished Scholar at the National Constitution Center (with Akhil Amar), and the recipient of numerous additional honors. His published work includes three books on the American Constitution, several legal treatises and related books, and hundreds of published articles and essays. He writes a syndicated column and is a frequent guest in the national media analyzing Constitutional, cultural, and political developments

Honorable Diarmuid O'Scannlain

Judge O'Scannlain was appointed United States Circuit Judge for the Ninth Circuit by President Reagan on September 26, 1986. He received a JD degree in 1963 from Harvard Law School and a B.A. in 1957 from St. John's University. He also earned the LLM (Judicial Process) degree at University of Virginia Law School in 1992. He was awarded the LL.D. (honoris causa) degree by the University of Notre Dame in 2002 and the LL.D. (honoris causa) degree by Lewis & Clark College in 2003. As a judge on the U.S. Court of Appeals for the Ninth Circuit, Judge O'Scannlain has participated in nearly 8,000 federal cases and has written hundreds of published opinions on a broad range of subjects including constitutional law, securities law, administrative law, and criminal law. He hears appeals in San Francisco (court headquarters), as well as in Los Angeles (Pasadena), Portland, Seattle, Anchorage and Honolulu. In addition to serving as a faculty member at numerous federal appellate practice seminars for judges and attorneys, including New York University Law School's Institute for Judicial Administration, Judge O'Scannlain is an adjunct professor at the Northwestern School of Law of Lewis & Clark College where he teaches seminars on the Supreme Court and Appellate Practice.

Honorable Stephen Reinhardt

Judge Stephen Reinhardt, a graduate of Yale Law School and Pomona College, was appointed to the United States Court of Appeals for the Ninth Circuit by President Carter in September of 1980. He has published numerous articles on various topics relating to the law. Prior to his appointment, Judge Reinhardt was a partner in the Los Angeles law firm of Fogel, Julber, Reinhardt, Rothschild & Feldman where he specialized in the practice of labor law. He served as President of the Los Angeles Police Commission, President of the Los Angeles Recreation and Parks Commission, Secretary of the 1984 Los Angeles Olympic Organizing Committee, and for a number of years as a member of the Board of Directors of the Los Angeles Amateur Athletic Foundation, which administers the 1984 Olympics surplus. Following graduation from Law School, where he earned his membership in the Order of the Coif, he served as a Lieutenant in the United States Air Force. He was also a law clerk to the Honorable Luther Youngdahl of the United States District Court for the District of Columbia. He started his legal career as an associate with the firm of O'Melveny and Meyers. Judge Reinhardt was recently the subject of a cover story in California Lawyer titled "The Last Liberal." He was also recently the subject of a cover story in Citizen, the magazine published by Reverend James Dobson?s Focus on the Family. On that cover he was described as "the most notorious liberal judge on the most radical court in America."

Jeffrey Rosen

Jeffrey Rosen is Professor of Law at George Washington University and the Legal Affairs Editor of the New Republic His new book is The Supreme Court: The Personalities and Rivalries that Defined America, the companion book to the PBS series on the Supreme Court. He is also the author of The Most Democratic Branch, The Naked Crowd, and The Unwanted Gaze. Rosen is a graduate of Harvard College, summa cum laude; Oxford University, where he was a Marshall Scholar; and Yale Law School. His essays and commentaries have appeared in the New York Times Magazine, the Atlantic Monthly, on National Public Radio, and in the New Yorker, where he has been a staff writer. The Chicago Tribune named him one of the 10 Best Magazine Journalists in America, and the L.A. Times called him "the nation's most widely read and influential legal commentator."

Kenneth W. Starr

Kenneth W. Starr is Duane and Kelly Roberts Dean and Professor of Law at Pepperdine University. He is the author of many law review articles and the popular book, First Among Equals: The Supreme Court in American Life. In practice, the dean specializes in antitrust, federal courts and federal jurisdiction, and Constitutional law. Prior to his deanship, he was a partner at Kirkland & Ellis, as well as Gibson, Dunn & Crutcher. In addition, he has served as counselor to U.S. Attorney General William French Smith, a judge for the U.S. Court of Appeals, D.C. Circuit, Solicitor General of the United States, and independent counsel on the Whitewater matter. As Solicitor General, he argued 25 cases before the Supreme Court involving a wide range of governmental regulatory and Constitutional issues of commercial importance. He clerked for Chief Justice Warren E. Burger and presently teaches Current Constitutional Issues.

Kathleen Sullivan

Kathleen M. Sullivan was previously Dean of Stanford Law School, where she is currently the Stanley Morrison Professor of Law and the founding Director of the Stanford Constitutional Law Center, which runs conferences and contributes pro bono briefs on a variety of constitutional issues. Before moving to Stanford in 1993, she was Professor of Law at Harvard Law School. One of the nation's leading constitutional scholars, she edits the classic casebook Constitutional Law once edited by the late Gerald Gunther, and has published a wide range of law review articles on freedom of speech, federalism, freedom of religion, separation of powers, equal protection and the role of the Supreme Court. She has also commented on constitutional issues in such forums as the New York Times, the Washington Post, the New York Review of Books, and the NewsHour with Jim Lehrer. Sullivan holds a B.A. from Cornell University, where she was a Telluride Scholar, an M.A. from Oxford University, which she attended as a Marshall Scholar, and a JD from Harvard Law School, where she won the Ames Moot Court competition.