There is a glaring error on p. 18 of the transcript in Kansas v. Nebraska. Rather than writing “Justice Scalia,” the Court Reporter wrote “Mr. Scalia.” And that mistake has been there for a full week! Earlier on the page, the Justice is accurately referred to as “Justice Scalia.”
H/T Jacob Berlove who notes that Chief Justice Rehnquist may not have been as forgiving for such an error.
Towards the end of his interview with the President, Jeff Toobin asks whether he would like to repeat the role of President Taft and become Justice Obama.
As Marine One thundered overhead, about to land on the White House lawn and take Obama to a series of political fund-raisers, I asked him if, like William Howard Taft, he entertained thoughts of serving as a judge later in his career. “When I got out of law school, I chose not to clerk,” he said. “Partly because I was an older student, but partly because I don’t think I have the temperament to sit in a chamber and write opinions.” But he sounded tempted by the idea.
“I love the law, intellectually,” Obama went on. “I love nutting out these problems, wrestling with these arguments. I love teaching. I miss the classroom and engaging with students. But I think being a Justice is a little bit too monastic for me. Particularly after having spent six years and what will be eight years in this bubble, I think I need to get outside a little bit more.”
I have little faith in Justice Obama’s ability to interpret statutes and executive powers, based on some of the positions his administration has taken.
Joan Biskupic’s excellent new book, Breaking In, brings us deep insights into the most important constitutional law decisions of our era. But one bit that seems to have escaped the media was coverage over Justice Sotomayor’s concurring opinion in all-important-jurisdiction case Daimler AG v. Bauman. Forget affirmative action or the Fourth Amendment. We’re talking about RBG and Sotomayor dueling on personal jurisdiction!
Biskupic explains some of the background of the decision:
For weeks, Sotomayor had seen drafts of Ginsburg’s opinion as it circulated among the justices. She knew she was about to be a public target. But she would have the courage of her convictions— perhaps stubbornly, misguidedly— yet with confidence enough to be the one in an 8– 1 vote. A week before the Daimler opinion was handed down, in January 2014, Sotomayor told an audience of more than a thousand that to bolster her courage, she often thought about the worst thing that could happen when she undertook a challenging endeavor. She would conclude: “You know something … so what?”
In a footnote that takes up almost entire page in Daimler v. Bauman, Jusice Ginsburg singles out Justice Sotomayor for “selectively referring to the trial court record” in Perkins v. Benguet Consol. Mining Co. (1952). Justice Sotomayor had the opportunity to pull back her dissent, in the face of withering criticism from 8 Justices, but she said, “so what.”
“So what.” That was more-or-less my reaction to reading Sotomayor’s dissent.
President Obama reveals to Jeff Toobin that the best decision of the Supreme Court was to deny certiorari in the same-sex marriage cases.
I asked him to name the best Supreme Court decision of his tenure. When the Court upheld the constitutionality of the Affordable Care Act, in 2012? When it struck down the Defense of Marriage Act, a year later? Neither, it turned out.
“In some ways, the decision that was just handed down to not do anything about what states are doing on same-sex marriage may end up being as consequential—from my perspective, a positive sense—as anything that’s been done,” the President said. “Because I think it really signals that although the Court was not quite ready—it didn’t have sufficient votes to follow Loving v. Virginia and go ahead and indicate an equal-protection right across the board—it was a consequential and powerful signal of the changes that have taken place in society and that the law is having to catch up.” In the Loving decision, from 1967, the Court held that states could no longer ban racial intermarriage.
In other words, Obama’s favorite decision was one in which the Court allowed the political process to go forward, one state at a time. Not long ago, the President described his foreign-policy doctrine as one that “avoids errors. You hit singles, you hit doubles.” On same-sex marriage, the Supreme Court had hit a single, or maybe a double, and that was fine with him.
Obama opposed marriage equality until May of 2012. He told me that he now believes the Constitution requires all states to allow same-sex marriage, an argument that his Administration has not yet made before the Supreme Court. “Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states,” he said. “But, as you know, courts have always been strategic. There have been times where the stars were aligned and the Court, like a thunderbolt, issues a ruling like Brown v. Board of Education, but that’s pretty rare. And, given the direction of society, for the Court to have allowed the process to play out the way it has may make the shift less controversial and more lasting.
This is a remarkable answer. When he says “strategic,” he means “political,” in the sense of the Warren Court making calculated decisions of how best to advance policy. By the way, I’m not sure that anyone actually believes he had this constitutional epiphany in May of 2012. Rather–as I wrote at the time–Vice President Biden forced his hand.
Update: A colleague on Facebook made an important point. It is simply not true that the “Court allowed the political process to go forward, one state at a time.” This is an instance where the judicial process went forward, one court at a time. All of the states that eliminated their bans on same-sex marriage by legislative process did not need to rely on the judicial process. Here, it is the courts that started the process, but the Court did not complete it. Obama’s explanation betrays a startling lack of concern for the difference between the political and judicial process–this is very much in keeping with his critical view of the law.
In Jeff Toobin’s latest article, he interviews President Obama, and offers a number of insights into how he has made a mark on the Judiciary. This bit about Halbig confirms what we all knew about his strategic appointments to the D.C. Circuit:
By a vote of two to one, the court held, in Halbig v. Burwell, that the insurance subsidies that allow millions of Americans to buy health insurance were contrary to the text of the law and thus were illegal. If such a decision had been made earlier in Obama’s tenure, lawyers for his Administration would have been left with a single, risky option: an appeal to the politically polarized, and usually conservative, Supreme Court.
This year, the lawyers had another choice. When President Obama took office, the full D.C. Circuit had six judges appointed by Republican Presidents, three named by Democrats, and two vacancies. By the time of the Halbig decision, Obama had placed four judges on the D.C. court, which shifted its composition to seven Democratic appointees and four Republicans. In light of this realignment, the Obama Administration asked the full D.C. Circuit to vacate the panel’s decision and rehear the Halbig case en banc—that is, with all the court’s active judges participating. The full court promptly agreed with the request, and the decision that would have crippled Obamacare is no longer on the books. Oral argument before the full court is now set for December.
The transformation of the D.C. Circuit has been replicated in federal courts around the country.