Here is my overview of tonight’s event based on my hastily jotted notes. Justice Alito told some funny stories about his time at Yale, but more importantly, gave some comments about NFIB v. Sebelius, United States v. Jones, Hosannah-Tabor, Sacket v. EPA, Fox v. FCC, and Citizens United.
Tonight the Federalist Society held its 30th Anniversary Gala Dinner at the Marriott Wardman Park Hotel.
David McIntosh, the Vice Chairman and Founding Director of the Federalist Society served as master of ceremonies. Father Paul Scalia of the Diocese of Arlington, who is also Justice Scalia’s son, gave the invocation.
After the invocation, McIntosh recognized a number of elected officials in the room, including Senator Mitch McConnell (whom he inadvertently referred to as the Senate Majority Leader–wishful thinking!), Senator Mike Lee (Federalist Society member and former Justice Alito Clerk), Senator-Elect Ted Cruz (Federalist Society member and former Chief Justice Rehnquist clerk), Senator Jeff Sessions, Virginia Attorney General Ken Cuccinelli, and others.
Next, former-Attorney General Mukasey introduced the guest of honor, Justice Alito. For a bit of a flashback, the last time General Mukasey spoke at the Wardman during the Federalist Society dinner in 2008, he collapsed at the podium, but thankfully he was fine.
Mukasey noted that Alito was an ideal judge, in that he does not judge by creating theoretical constructs, or trying to please a crowd, but rather by applying a rule that governs a case, without rhetorical flourish (JB: excluding his dissents in Brown v. Plata, Snyder v. Phelps, and others, of course) and viewing the Constitution as the framers framed it.
The Justice began by noting that it was a special honor to speak on the 30th Anniversary of the Federalist Society. He described the four founders of the Society–Lee Liberman, Steven Calabresi, David McIntosh, and Peter Keisler–as real heroes, and recommended that a version of Mt. Rushmore should be built with their faces (JB: I’ll photoshop that up as soon as I get a minute). Justice Alito suggested that the Washington Nationals should replace the racing presidents with the racing federalists, or at least on Constitution Day. (Jb: Forget let Teddy win. Let Stevie win!).
Alito and Reich at Yale
Justice Alito regaled us with some hilarious stories of his time at Yale. First, he queried where Yale went wrong when the only two Yalies on the Court were he and Justice Thomas. Though, with a third Yale Alumna, Yale must be feeling better!
Alito recounted his experience as a 1L law student, where he was forced (against his will and better judgment) to take constitutional law with Charles Reich. Reich, most famous for writing “The New Property” in 1964 had achieved some acclaim in constitutional circles back then, but by 1972 had somewhat joined the “youth counterculture,” and felt that redemption could be achieved through the path of being a college hippie. Alito tried to transfer to another section, but was unsuccessful. (JB. My colleague David Wagner noted that Alito tried to transfer to Professor Bork’s section!).
In class, Reich would ask each student why he or she wanted to become an attorney, and then proceed to refute each student’s reasoning, in order to persuade them that there was no liveable lives to be lived in the law. This went on for several weeks. Reich would find books about the history of law firms, and regaled his students. One partner got so beat-red and angry while berating an associate he died from a stroke. Another partner, whose job was to take all the associates to their birthday lunches in the club on the ground floor of the firm’s building, committed suicide–by jumping down the elevator shaft.
Alito recounted that in one class a student brought a jug of wine with plastic cups. Reich took a few sips, and started to chat “who put the acid in the wine.” (JB: I’m positive the only thing Alito was interested in dropping was the course). That was the end of that class.
After the students returned from Thanksgiving break, a note was posted on the bulletin board from Professor Reich. The note read that he had found it necessary to go to San Francisco, and the rest of the class sessions were cancelled.
Alito recalled that was the end of his instruction in constitutional law. He was taught nothing. Alito joked that his opponents will seize this story as proof of why he doesn’t understand constitutional law (JB: that thought may have occurred to me during his story).
He quipped that it never occurred to him to audit another class.
But, there was a silver lining. Because he had no formal instruction, he had to teach himself.
Alito on the Constitution
Alito noted that one could pay $160 for Erwin Chemerinsky’s constitutional law case book. Or, for only $90 one can buy Tribe’s con law treatise. Or, for $40 one could buy the Con Law in a Nut Shell. But, he urged beginners to start with the text of the Constitution–it’s available for free online. Alito noted that the Government Printing Office sells a copy for $3, though he does not know if they will continue doing say–pause for laughter–then closes it up nicely by saying everything is going digital (there used to be a typo in the Declaration in the Government’s pocket Constitution, not sure if it’s still there).
The Constitution is not long, and not that hard to read. If you read the text, certain things jump out. It’s hard not to notice that Congress has limited powers. Alito reminded us that there is an Amendment that comes after the First Amendment, and another one that comes after the 9th. (JB: In fairness, more people forget about the 3rd Amendment than the 2nd Amendment, and the 9th Amendment than the 10th Amendment).
Forming Constitutions in Other Countries
Justice Alito noted that recently, Justice Ginsburg stirred some controversy by noting that countries developing new constitutions should look to more modern constitutions, rather than the United States Constitution as a model. Is this good advice? Justice Alito said, “it depends.”
Alito noted that someone suggested that he is developing a computer program to help countries write constitutions. Like LegalZoom! The framers will be led through questions. On a scale of 1-10, how much protection should there be for free speech, religion, due process . . . Of course, the document would be printed on and elegant parchment.
Alito countered that creating new constitutions is much more complicated. The constitution must reflect the nature of the society it serves. Our Constitution protects a framework for a society that attracts people from every corner of the globe. Under the Constitution, people enjoy freedom and opportunity. It is not a perfect, but it is an exceptionally good Constitution.
Compared with other modern constitutions, our Constitution has bold protections for individual rights. Other Constitutions has lots of escape clauses. No other Constitution protects free speech the way our Constitution does.
Our Constitution guarantees rights against the government–not rights to get things from the government. Under our Constitution, the citizenry is proudly independent, and values individual effort and achievement and the work of private institutions. Modern constitutions confer rights to get things from the government, and cultivates a citizenry that asks what government can do for them.
The United States Supreme Court elaborates on the meaning of the Constitution. Alito compared judges to the Pointilist artists, where a dab of paint here and there may be confusing, but when you take a step back it’s a work of art (JB: I really like that metaphor).
NFIB v. Sebelius
Next, Alito turned to the main event. Arguments from last term. First he talked about NFIB v. Sebelius.
Federalism can be used as one of the ways to protect liberty, promote prosperity, and make it easier for diverse populations to live together harmoniously. Alito noted that the Solicitor General’s argument in this case would have reduced federalism to a most meaningless distraction (or obstruction, not quite sure what my notes say). The Solicitor General “attempted to land a one-two punch that would have sent federalism to the mat.” The United States put forth an “unprecedented argument” (take a shot Randy!) that Congress had the power not only to regulate commerce, but to force people to engage in commerce. The Solicitor General’s other argument would have “gutted” any limits on the spending power .
Alito noted that fortunately both arguments lost–the first question by a vote of 5-4, and the second issue by a vote of 7-2.
(JB: So, in case anyone was wondering, Alito, one of the joint-dissenters, accepts John Robert’s reasoning as a 5th vote to find the mandate exceeded Congress’s enumerated powers. No hard feelings against the Chief!).
Arizona v. United States
The second case, Arizona v. United States, “dealt a blow to federalism.” Alito’s comments focused on the fact that it is wrong that a state law can be preempted by a change of a cabinet secretary’s enforcement policies and priorities–something that could be changed at a whim. (JB: I noted a similar point here concerning the fact that the current AG may oppose the law, but the next AG may support, and what does that mean for cooperative federalism and preemption).
Alito noted that no member of the Court endorsed the notion that this theory could preempt state laws. (JB: I wasn’t exactly sure how he counted to 5 here, or maybe I misheard him. Update: My colleague Ilya Shapiro reminded me that the vote was 8-0 on the issue of preemption based on executive discretion. See his WSJ Op-Ed. Mea culpa).
United States v. Jones
The third case Alito talked about was United States v. Jones, the GPS tracking case. Alito recounted that under the government’s theory, the police would be able to monitor a car by attaching a GPS onto it, without any cause. The SG argued that it was fine under the Fourth Amendment (JB: At a number of junctures, Alito kept referring to the SG’s positions, implying something of an arc of the administrations negative views towards individual liberty). Alito warned that under the government’s theory, agents could attach a GPS to the car of everyone in the room. If a car manufacturer could install a GPS, anyone could be tracked. The only limit on the governments ability to track movement was the “extent of the computing capacity.”
Alito noted that the Court unanimously rejected this position (JB: though the opinion was quite split beyond that).
Sacket v. EPA
Continuing a theme that the Solicitor General took a number of losing, statist positions in the previous term, Alito turns to Sacket v. EPA. In that case, the Solicitor General argued that the federal government could take away someone’s dream home, and there was no way to challenge it (JB: I gather most enforcements of the Clean Water Act have the effect of taking away someone’s home if it is near a “wetland”). Homeowners were simply at the “mercy of federal bureaucrats.”
Alito noted that the Sackets wanted to build a lake house in Idaho, but the EPA sent them a letter saying that the construction would violate the Clean Water Act. Alito digressed to note that the CWA is “notoriously unclear,” and it cannot be the case that any land that is wet for some portion of the year becomes a wet land. Alito commented that the EPA wanted to fine the Sackets $75,000 a day, and the government sought to deny them review in a federal court.
The Supreme Court rejected this position 9-0 (JB: sensing a pattern?).
Hosannah-Tabor v. EEOC
This nation was founded by immigrants from Europe who despised state-established churches where the monarch could control the pulpit. For Hosannah-Tabor, Alito recounted that the Solicitor General sought to give courts oversight over how the decisions of religious bodies over who can serve as a religious leader. This position was, again, unanimously rejected (JB: though it was quite split on the reasoning).
Citizens United v. FEC
Next, Alito turned to a case, maybe you’ve heard of it, called Citizens United v. FEC, which, in Alito’s words, considers whether the 1st Amendment protects speech that forms part of the democratic process.
Alito notes that this holding is “still a live issue,” as just this past June the Supreme Court reversed the Montana Supreme Court that “basically defied the holding” of Citizens United. Perhaps more pressingly, four Justices “stand ready to overrule Citizens United.” (JB: Ahem, Ginsburg, Breyer, Sotomayor, and Kagan who curiously voted in the Montana case not to summarily reverse, though there were 4 of them).
Alito took us back to the first time Citizens United was argued, where he asked the Deputy SG if the First Amendment permits the government to ban books about candidates for public office. The Deputy SG (Malcolm Stewart) said that that would be permissible. This answer was a “stunner,” as banning books did not “seem compatible with the First Amendment.” Though, Alito commented that this answer was compelled by the government’s position.
After the case was to be reargued, there was a new Solicitor General in town–Elena Kagan! In her very first argument of any kind to any court, then-General Kagan argued Citizens United v. FEC. Alito noted that the new Solicitor General took a different position, and argued that a ban on books would not survive. But her answer about a ban on pamphlets was less clear. Alito joked that its good to know that books are protected by the First Amendment, but pamphlets are not. Alito set out to discover where the line is between books and pamphlets, and turned to the international community for constitutional guidance. Apparently, UNESCO defines a pamphlet as a printed publication made available to the public of at least 5 but less 48 pages (JB: this seems to be directly from Wikipedia!).
It’s good to know that the First Amendment protections only applies to one who writes verbosely, and in a really big font (JB: my blog is safe!). Electronic media in the digital age? Too bad.
Next Alito noted that those who disagree with Citizens United have conducted a very successful public relations campaign (JB: Not true!).
Alito cited Adam Liptak from the New York Times who has written about this reaction, and that the liberal objection to Citizens United boils down to one sentence: The majority was wrong to grant First Amendment rights to corporations. (JB: Not true!).
Alito said this is not a valid argument (JB: Not true!). Alito also cited several funny bumper stickers: “Life does not being at incorporation.”
Alito continued that no one really thinks all corporations should be stripped of First Amendment rights. The New York Times, the Washington Post, NBC, CBS, ABC, Fox News, CNN, etc. are all owned by corporations. (JB: Liptak has defended corporate personhood in this context here).
Alito comments that New York Times v. Sullivan and the Pentagon Papers case would have come out differently if corporations had no rights. Likewise, Fox v. FCC, the next case Alito mentions, would have come out quite differently (no one even addressed this point).
Fox v. FCC
Perhaps the highlight of the night was Justice Alito recounting the facts from Fox v. FCC. During a broadcast, Nicole Ritchie offered “a bit of wisdom.” Have you ever tried to get cow *bleep* out of Prada purse. Not so *bleep* (JB: he may have said bleeping) simple. (JB: Massive applause!).
The parties in this case certainly took for granted that Fox had free speech rights.
Alito then turned to the issue of who is the press. Is the right to engage in speech that goes to the heart of democratic self-government limited to preferred corporations (journalists?). In the modern era, it is questionable if it is even workable to distinguish between the media and the rest of us.
When you put together all of the arguments made by the Solicitor General, the “beginning of a picture is seen.” The arguments begin to suggest a vision of society in which the federal government towers over people, and federalism offers no refuge. Government follows every move, and takes away control of religious institutions. This is not America, or the society our Constitution contemplates.
The Federalist Society has spent 30 years furthering the Constitution. More is to be done by those who share the Society’s esteem for the Constitution. We must speak about the Constitution in easy terms, and show how the Constitution is tied to the way of life that should be defended. This is the job for the next 30 years.
And that’s a wrap for the Justice. Massive applause.
Gene Meyer wrapped up and noted that over 200 law school chapters hosts over 1,600 events a year. Lawyers chapters in 75 cities host many events. There are over 55,000 people involved with the Federalist Society.
This was one of the better annual dinners in recent years.
(I apologize for typos. I wrote this up at 2:30 a.m. after a long day of travelling and federalizing at the convention. I’ll clean this up later).