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Alberto Gonzales, who has kept quite busy since re-entering legal academia as a Professor, and now Dean at the Belmont University College of Law, authored an interesting article in the William & Mary Bill of Rights Journal, titled “In Search of Justice: An Examination of the Appointments of John G. Roberts and Samuel A. Alito to the U.S. Supreme Court and Their Impact on American Jurisprudence.” Here is the abstract.

During 2005, President George W. Bush appointed Federal Circuit Court Judges John G. Roberts and Samuel A. Alito to the U.S. Supreme Court. These appointments were the culmination of years of examination of the work, character, and temperament of both men commencing during the 2000 presidential transition. Our evaluation included face-to-face interviews; an analysis of judicial opinions, speeches, and writings; and conversation with friends, colleagues, and court experts. Based on this work, a select group of Bush Administration officials developed a set of predictors that formed the basis of our recommendation to President Bush that he elevate Circuit Court Judges Roberts and Alito to the Supreme Court. This Article explains how Judges Roberts and Alito were evaluated, and our assessment of how they would perform on the Court. The Article then examines whether the Bush Administration correctly predicted how these two men would decide cases before the Court by reviewing some of their most significant opinions to date.

We begin with an explanation of the process used in developing our recommendation to the President followed by a thorough examination of the factors we weighed (such as political considerations and confirmation challenges). The Article includes a thorough, though certainly not exhaustive, review of the circuit court opinions of each man. This early body of work is then compared to their most recent work on the Supreme Court in certain key areas of the law. There is a remarkable, though not unexpected, consistency between Justices Roberts’s and Alito’s jurisprudence on the circuit courts and on the Supreme Court. Based on this comparison, the Article concludes that the Bush Administration successfully anticipated that Chief Justice Roberts and Justice Alito would decide cases using a consistent set of principles including judicial restraint, respect for precedent, and statutory interpretation based on plain language.

I’ll put the rest of this lengthy post below the fold.

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Clerking is (almost always) an awesome job. I treasure the two years I spent in the Western District of Pennsylvania, and on the Sixth Circuit. I had the honor of working for two amazing judges, who mentored me in ways I will probably never fully appreciate. I also had the joy of working with co-clerks who have become life-long friends.

Yet, the denouement of the clerkship–as experienced by myself, my co-clerks, and countless other clerks I know–shares a common commiseration: “I am finishing the best job of my legal career, only one year out of law school.” In other words, this job was so awesome, and it is all down-hill from there.

Often, the follow-up to the clerkship can feel like a letdown. The clerkship, where you (often) set your own hours, (somewhat) decide which fascinating issues you want to work with, and have a single boss who is (usually) a standup judge, will dwarf over any future employment. Also, the degree of power is one I always warn incoming clerks about. It is quite scary once you realize that your writings and decisions (sometimes without a judge’s detailed consideration) affects someone’s life, liberty, and property.

But what comes next? Often, outgoing clerks join a big law firm where they are expected to work ridiculous hours, toil away at mundane tasks, and be assigned to the least interesting topics imaginable. No longer are you influencing the direction of the law through the opinions you draft. Now, if you’re lucky, you may come up with some good questions for someone else’s deposition. I can’t count how many friends experienced this post-clerkship letdown.

In particular, a number of my friends who have clerked on the Supreme Court have felt this let-down, in a very, very strong way. One minute you are writing opinions for the highest court in the land, shaping the state of constitutional law for decades to come. The next minute, you are at a firm, barred from practicing before the Supreme Court, working on inferior cases in the inferior courts. I’ve heard that many SCOTUS clerks never quite come down from the high, and always long for the taste of that power. (This fits into the D.C. power-culture quite generally).

I recently offered this advice to a friend who was wrapping up a Circuit clerkship, so I pose it here, generally. The clerkship is only the start of your career. While your second job may not be as fun as your first (it probably won’t), try not to succumb to the letdown. If you maintain the mentality that your best job was your first job, that will become reality. While the odds of you becoming a judge are slim to none, there are countless ways to improve on your legal career and achieve a sense of happiness with your work. It will take time. A key aspect of that trajectory is to drop the charade that you’ll never have a better position. As the summer draws near, and the final sittings are heard, try to avoid the post-clerkship letdown.

I recently acquired from eBay a copy of the National Intelligencer – Washington Advertiser from January 30, 1805 owned by none other than Joseph Story. At the top of the newspaper is his signature, “J. Story.” The seller offered these commentaries on why Story, who at the time was in private practice in Boston, would sign and maintain the newspapers:

These newspapers were bound in book format 200 years ago for Joseph Story himself comprising the years 1804 & 1805. The binding was deteriorated so I had removed the editions and have been selling one newspaper a week for over two years now and my supply is dwindling. As for your second question, Story would have had each issue wrapped and mailed to him while in Boston. The “intelligencer’ was at the time known as the best way to keep tabs on the happenings of our Nation’s capitol next to being there personally (he did eventually relocate). He must have really valued the information gleaned from the ‘Intelligencer’ so much that he had two years worth of issues bound for future reference, each one signed by him in the same right-hand section of the masthead.

The Story Newspapers were left to me by my grandfather, an avid collector of history for over 50 years. The method of obtaining out-of-town newspapers up until the mid 19th century was by individual subscription. If a merchant purchased bundles of newspapers 200 years ago he would have suffered a great loss with the papers that did not sell. Not until the age of the steamboat and steam press did newspaper publishers offer to buy-back unsold issues as they still do to this day. I am also sure that Postmasters were not allowed to sell newspapers or conduct any unauthorized business in their official capacity.

Here it is:

I also found fascinating the various articles and notices in the paper.

For example, the sale of a 236 acre plantation.

Here is an ad for a runaway slave.

Some time in April last a bright Mulatto woman named Fanny, she is nearly 6 feet high and stout in proportion, thick lips, middling large eyes, very large breasts, bends forward when she stands or walks, quick in speech, and has very large feet, her apparel is not remembered, took with her a large bundle thereof, and it is probable often changes them. I have been informed she is in the service of a Mr. Thompson in Georgetown, whoever secures her in Washington city jail so that her mistress Mrs. Sarah Brooks gets her again or will deliver her to the subscriber in Upper Marlboro shall receive ten dollars and all reasonable expenses paid by Saml. J. Coolidge.

Here is an address given by President JEfferson

For my second question on my ConLaw exam, I flipped the obvious (and expected) same-sex marriage issue on its head. Rather than asking straight-up whether the Equal Protection Clause, or Due Process Clause, should invalidate a law banning same-sex marriage, I proposed a hypothetical law, The Protection of Marriage Act (POMA) that mandates that all 50 states recognize gay marriage. This is a tough Section 5 issue that requires students to address not only the rationality of a same-sex marriage ban, but also “congruence and proportionality” under the 14th Amendemnt. For good measure, I added a private cause of action that allows individuals to sue states that deny same-sex marriage, posing a solid Morrison 11th Amendment issue.

Plus, as a preview of things to come, a Priest who refused to perform a same-sex wedding is sued under the generally applicable POMA, which bans discrimination on the basis of sexual orientation. POMA waives RFRA as a defense.  As a defense, he raises a free-exercise claim under Smith. I think I know how this question comes out, but I suspect some may disagree. And, because the Court didn’t address Elane Photography, I added a compelled speech issue for an atheist baker who refuses to bake a cake for a same-sex wedding because it does not inspire him.  I close with a tough policy issue on whether opposition to same-sex marriage could only be grounded in moral animus. I forced students to take both sides of the issue, which turned out to be strikingly difficult. Some students could take one side, others could take the other. The top papers understood both sides. Here is the A+ answer.

Enjoy!

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Instructions: The year is 2014. You are a law clerk for Justice Anthony M. Kennedy. Three consolidated cases concerning the constitutionality of the Protection of Marriage Act (POMA) were recently argued before the Supreme Court. You have been assigned the task of writing a memorandum of no more than 1,000 words addressing five issues presented in these cases.

—

In the wake of United States v. Windsor (2013), which found that part of the federal Defense of Marriage Act was unconstitutional, Congress was concerned that a number of states continue to deny same-sex couples the right to marry. To address this problem, Congress enacts, and the President signs into law, the Protection of Marriage Act of 2013 (“POMA”).

POMA has three key sections.

Section 1: Pursuant to Congress’s powers under Section 5 of the 14th Amendment, and in order to ensure that no state shall “deny any person of life, liberty, or property without due process of law,” or “deny any person within its jurisdictions the equal protection of the laws,” all states shall guarantee to same-sex couples “marriage equality.” Marriage equality is defined as all states guaranteeing same-sex couples the ability to marry, and be treated under state law in the same manner in all respects, as opposite-sex couples.

Section 2: Same-sex couples that are denied the ability to marry can file suit in federal district court against the state in which they reside to challenge the state’s denial of “marriage equality” under POMA.

Section 3: Discrimination on the basis of marital status shall result in liability of $1,000 per discriminatory incident. Individuals shall have standing to bring claims under Section 3 in federal district court. The Religious Freedom Restoration Act (“RFRA”) shall not constitute a defense to this section.

After POMA is signed into law, three lawsuits are filed.

1. Aggie and Barge, two women who live in Houston, apply for a marriage license and are denied. Texas has a state constitutional amendment prohibiting same-sex marriage. The couple promptly filed suit against the state of Texas in federal district court, under the jurisdiction of Section 2 of POMA. The couple alleges that Texas’s refusal to allow them to marry violates Section 1 of POMA. Texas replies that Congress lacks the power under Section 5 of the 14th Amendments to enact Section 1 of POMA, as it abrogates its state sovereignty protected by the 10th Amendment, intrudes on Texas’s police power, and violates the principles of federalism. Further, Texas asserts that Congress lacks the power under Section 5 of the 14th Amendment to permit the couple to sue the state in federal court under Section 2 of POMA.

2. Carl and Domer, two men who live in Dallas, ask a Roman Catholic Priest to officiate at their wedding. The priest refuses. Carl and Domer file suit against the Priest under Section 3 of POMA. The Priest concedes that he has discriminated against the couple on the basis of marital status. However, he replies that being forced to perform a same-sex wedding imposes a burden on his religious beliefs, in violation of his rights protected by the Free Exercise Clause of the First Amendment. The priest does not raise any claim under the Free Speech Clause of the First Amendment, or the Religious Freedom Restoration Act.

3. Edna and Fapu, two women who live in Austin, ask Grandpa, a world-famous chef, to bake a cake for their wedding. Grandpa, an atheist who rejects all religion, declines to make them a cake for their wedding. He views his baking as a form of art, and refuses to be forced to design a cake for an event that does not inspire him to create beautiful torts (the tasty kind). Edna and Fapu file suit against Grandpa under Section 3 of POMA. Grandpa concedes that he discriminated against the couple on the basis of marital status. However, he replies that being forced to design a cake for their wedding would violate his rights protected by the Free Speech Clause of the First Amendment. Grandpa does not assert any claim under the Free Exercise Clause of the First Amendment, or the Religious Freedom Restoration Act.

All three of these suits are unsuccessful in the lower courts, and are consolidated on appeal to the United States Supreme Court

—

In a memorandum of no more than 1,000 words for Justice Kennedy, address the following five issues.

1. Does Congress have the authority under Section 5 of the 14th Amendment to enact Section 1 of POMA? Please also address whether Section 1 violates the 10th Amendment, Texas’s sovereignty under the principles of federalism, and Texas’s traditional police powers.

2. Does Congress have the authority under Section 5 of the 14th Amendment to enact Section 2 of POMA? Please also address whether Section 2 violates the 10th Amendment, Texas’s sovereign immunity under the 11th Amendment, and principles of federalism.

3. Would the application of Section 3, and the imposition of civil liability to the Priest violate his right of Free Exercise under the First Amendment?

4. Would the application of Section 3, and the imposition of civil liability to Grandpa violate his right of Free Speech under the First Amendment?

5. Justice Kennedy is laboring over a question raised, but not fully answered in United States v. Windsor. Must opposition to same-sex marriage only be grounded in animus or hatred towards gays and lesbians. Please address both sides of this issue in the context of the constitutionality of the Protection of Marriage Act.

To illustrate that en banc was not warranted, Posner notes that he did a Google search of “references to the panel decision.”