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At an event at the National Constitution Center (which does not seem to have been recorded), Justice Kennedy offered these remarks about the state of our civic discourse, commenting on a recent cover of National Affairs Magazine.

Later, Kennedy called out a recent cover of Foreign Affairs that depicts the U.S. Capitol “crumbling” because of “the state of our public discourse.”

“The verdict on freedom is still out,” he declared. “Half the world is the jury and they are out. They are looking to you to see if freedom works.

“This country owes a duty to the Constitution, to itself and to the idea of freedom to conduct a decent, rational, respectful, probing civic discourse—and we don’t have it.”

Without any more context, it’s hard to figure out exactly what Justice Kennedy is saying (what else is new), but he seems to be suggesting that the Constitution  and freedom demands some sort of civic discourse in Congress, and this is something we are sorely lacking.

This harkens back to a post I wrote a few weeks ago, highlighting the diverging views of Justice Scalia–who loves gridlock–and RBG who doesn’t. AMK seems closer to RBG, and this is keeping with his decision to not join Justice Scalia’s dissenting pean to gridlock (which would have turned it into a majority opinion).

During remarks at the University of Nebraska, Chief Justice Roberts opined, indirectly at least, on the risk of rancorous politics spilling over from Congress to the Court. Roberts saw a special role for the Chief Justice, in halting this process.

They are not getting along very well these days. It’s a period of real partisan rancor that, I think, impedes their ability to carry out their functions . . . I don’t want it to spill over and affect us. That’s not the way we do business. We are not democrats or republicans. In 9 years i have never seen any political issue like that arise between us . . . . If you see the confirmation process, and you see how somebody as imminently qualified as our newest member, Justice (Elena) Kagan, is confirmed by almost a strict party-line vote. You think, well this must be a political entity, because they’re putting people on or rejecting them on partisan, political lines when that’s just not how it works. So, I’m worried about people having that perception. It’ snot an accurate one . . . . It’s not like it’s always been that way. Justice (Antonin) Scalia, I think, was confirmed unanimously. I think Justice (Ruth Bader) Ginsburg was confirmed unanimously. Neither one of them would have a chance today. And that doesn’t make any sense. That’s bad for the judiciary . . . We’re not very significant on the radar screen. We don’t have a natural constituency that members of Congress are concerned about. It’s why we rely on the bar to represent our interests. We need to keep the partisan divide on the other side of First Street and not let it come over to our sphere.

I suspect the fine line of First Street is often on the Chief’s mind.

This year, I will be speaking at a number of schools about the relationship between gridlock and executive power, and in particular how President Obama has turned to unilateral executive action in the face of a Congress that is hostile to his agenda. I focus in Obamacare, immigration, Bergdahl, Libya, and whatever other executive actions pop up over the course of the year.

I encourage you to read Bob Barnes’s excellent profile of the inestimable Deputy S.G. Edwin Kneedler, who has now served in DOJ for over 40 years. His lineage was remarkable.

Suppose you were looking for a lawyer to argue a case before the Supreme Court and this résumé crossed your desk:

Started legal career after being hired by Antonin Scalia. Worked on briefs and legal strategy with John G. Roberts Jr. Mentored Samuel A. Alito Jr. Served as acting solicitor general for President Obama and helped prepare Elena Kagan for her first court argument.

Oh, and besides working with four Supreme Court justices, has argued 125 cases there, more than any other practicing lawyer.

The only problem with trying to hire Edwin S. Kneedler is that you can’t. He is exclusive to one client: the government of the United States.

 

In particular, I’ll draw attention to his comments about NIFB v. Sebelius:

The biggest case he participated in, he said, would be the defense of Obama’s Affordable Care Act, which the court mostly upheld on a 5-to-4 opinion by Roberts.

“That was more pressure than any other,” Kneedler said, with the debate “so public and so intense.”

The appeals process dominated a year of his life, and Verrilli said Kneedler’s involvement was crucial to the outcome.

Of the four arguments in NFIB, Verrilli argued three: Tax Anti-Injunction (Day 1), Individual Mandate (Day 2), Medicaid Expansion (Day 3 afternoon). Kneedler argued the severability argument (Day 3 morning).

Remarkable, he is truly apolitical.

Which is not the same as saying Kneedler favored the act. Both Republicans and Democrats who have worked with Kneedler say they have no idea about his political leanings.

“There are not many people you meet in Washington like Ed,” said Verrilli, a Democrat. “Ed doesn’t filter legal questions through a political prism. I don’t know if he’s a liberal or conservative.”

Clement, a Republican, said he agrees. Kneedler’s concern is that a new administration changes policy the way it should — through rule-making and the legislative process — instead of the “back door of simply changing legal opinions.”

 

The Times reports that Justice Sotomayor surprised a group of 25 lawyers, forming the inaugural Immigrant Justice Corps. The Justice took the occasion to praise the lawyers for providing representation, and helping immigrants “get[] into this country.”

But he was upstaged in his own chambers by a fellow advocate for immigrants. Citing a study on the shortage of legal representation, Justice Sotomayor said, “You don’t stand a chance of getting into this country if you’re unrepresented.” But, if you are represented, she added, “the odds are more in your favor.”

Speaking to the group, she said, “You’re changing those lives for a lot of people.”

Tiptoeing around a young lawyer’s question about what an ideal immigration system might look like in 100 years, Justice Sotomayor suggested that the current one was not meeting society’s needs. “A lot of the immigrants who are coming, like some of those in this room, are coming because of asylum needs,” she said.

I suppose the goal of any advocate is to help a client win, in this case “get[] into this country.” I should hope that this is also not the goal of the Justice, whose aspirations should be to encourage lawyers to zealously advocate for their clients rights, come what may. It would be a bit odd for a Justice to tell a bunch of criminal defense attorneys–you don’t stand a chance of getting out of a search that yielded incriminating evidence if you’re unrepresented. But if you are represented, the odds are more in your favor. Anyway.

Though, Justice Sotomayor did seem to slip, and used the phrase “illegal immigrant.”

Domestic labor problems also weighed on her. “We’re in a really dysfunctional system right now, where the community obviously is hiring and employing illegal aliens, so there’s a need,” she said.

In using the phrase “illegal aliens,” Justice Sotomayor inadvertently broke her own rule to instead use the phrase “undocumented.” The rule, which she explained earlier to the group, was a way to recognize that immigrants who break the law are not necessarily bad people.

During a conversation at Yale Law School, Justice Sotomayor addressed her decision to use the phrase “undocumented immigrant” rather than the phrase used in the statute, “illegal alien.”

Sotomayor also addressed her use of the term “undocumented immigrants” rather than the term “illegal alien,” characterizing the immigration issue as a regulatory issue.

“To dub every immigrant a criminal because they are undocumented, to call them illegal aliens seemed and has seemed insulting to me,” said Sotomayor. “I think people then paint those individuals as less than worthy human beings and it changes the conversation.”

Justice Sotomayor first used the term “undocumented immigrant” in Mohawk Industries v. Carpenter in December 2009, her first opinion on the bench.

The following term, in Chamber of Commerce v. Whiting, the question presented used the statutory term, “unauthorized aliens.” During oral argument, Justice Sotomayor used the term “illegal alien,” but quickly corrected herself and said “undocumented aliens.”

JUSTICE SOTOMAYOR: — just — just focus the question? Because we keep talking about whether the APA-type definition of licensing is what Congress intended or not, but you don’t disagree that Congress at least intended that if someone violated the Federal law and hired illegal aliens of Hispanic — undocumented aliens and was found to have violated it, that the State can revoke their license, correct, to do business?

Justices Scalia and Alito had no problem, and used the phrase “illegal alien.”

In 2012, in Arizona v. United States, Justice Sotomayor used the phrase “illegal alien.”

JUSTICE SOTOMAYOR: What happens if — this is the following call — the call to the — to the Federal Government. Yes, he’s an illegal alien. No, we don’t want to detain him. What does the law say, the Arizona law say, with respect to releasing that individual?

In 2013, in Moncrieffe v. Holder, Justice Sotomayor consistently uses the term “noncitizen.” Nowhere in her opinion does the word “alien” appear. Justice Alito takes exception to this, and adds in a footnote:

1 “Alien” is the term used in the relevant provisions of the Immigration and Nationality Act, and this term does not encompass all noncitizens. Compare 8 U. S. C. §1101(a)(3) (defining “alien” to include “any person not a citizen or national of the United States”) with §1101(a)(22) (defining “national of the United States”). See also Miller v. Albright, 523 U. S. 420, 467, n. 2 (1998) (GINSBURG, J., dissenting).

In a few short years, Justice Sotomayor has gone from “undocumented immigrant” to “undocumented alien” to “noncitizen.” And back to “illegal alien.”