Same Old Scalia on Women’s Rights

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All week, since California Lawyer reported (and Huffington Post widely circulated) Justice Scalia’s remarks in an interview that the Constitution’s Fourteenth Amendment doesn’t protect women from discrimination, I’ve been getting calls from reporters and other Court watchers asking: Is this new? Are you shocked? The answers are no and no. This is vintage — archaic — Scalia. And it’s important to note that this is one area of the law in which Scalia has been unpersuasive and alone.

For decades and with votes by other conservative justices, the Supreme Court has said the Fourteenth Amendment’s guarantee of equal protection covers women. This is not a close call.

Yet Scalia has long rejected women’s equal rights, and in the most provocative terms. When the Court in 1996 struck down the all-male policy of the state-run Virginia Military Institute, Scalia was alone in dissenting and arguing that it should be able to exclude women. He praised “VMI’s attachment to such old-fashioned concepts as manly honor” and said “the function of this Court is to preserve our society’s values regarding (among other things) equal protection, not to revise them.”

With his extreme views and flaming tongue, Scalia will always make news. On women’s rights, however, Scalia is old news.

Sotomayor’s New Pattern in Dissenting Opinions

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When President Obama chose Sonia Sotomayor in 2009 to succeed retiring Justice David Souter, some Court observers thought there was one area of the law in which she might actually be more conservative than Souter: defendants’ rights. Sotomayor is a former prosecutor who, as a lower court judge, voted regularly against prisoners’ challenges to their cases. But in her first term on the Supreme Court, she showed no signs of joining conservatives against defendants and in fact was notable among liberals in support of criminal rights, for example, in her dissenting opinion in Berghuis v. Thompkins.

And now as she separates herself from her colleagues to dissent publicly when some appeals are denied, she has focused on prisoners’ rights. A story I wrote for today’s paper looks at recent cases in which she dissented or voiced concerns when the majority spurned an appeal. Most of these were cases in which she believed the defendant deserved a break.

Jonathan Kirshbaum, who represents indigent defendants at a New York appellate litigation center and who was wary of Sotomayor’s appointment, told me he has been struck by her recent votes siding with prisoners and how much feeling she expresses in these opinions. Of her recent dissents when the majority rejects an appeal, he said, “They give the criminal defendant’s perspective on these issues.”

We’re always looking for signs of a new justice’s approach to the law and how she might affect the Court. Sotomayor’s dissents from denials of certiorari offer a pattern that helps define her. President Obama’s more recent appointee, Elena Kagan, has yet to write any opinions. But she has already shown herself to be a forceful presence on the bench during oral arguments. Here is my early take on Kagan, who – like Sotomayor — appears destined to easily find her voice among the nine and on the law.

Scalia Rebukes Judges on Death Penalty

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As criticism of capital punishment is up in some quarters and use of the death penalty continues to decline nationally, Justice Scalia remains a vigorous voice for carrying out state executions.

This week he dissented from a high-court order favoring an Alabama murderer whose death sentence had been set aside by lower federal courts. The justices by 6-to-3 rejected a petition from Alabama officials protesting a new sentencing hearing for James Charles Lawhorn, who with his brother had killed their aunt’s boyfriend in 1988, in exchange for $100 from the aunt.

Lawhorn had won the new sentencing — after many years of appeals – because his lawyer had waived his right to closing argument during the penalty phase. The Supreme Court on Monday let stand an appeals court decision that the move constituted ineffective assistance of counsel.

Dissenting from the order, Scalia, joined by Justices Clarence Thomas and Samuel Alito, observed first that Lawhorn was sentenced to death more than 21 years. Scalia spurned the various scenarios lower court judges had offered regarding closing statements Lawhorn’s lawyer might have made and how jurors might have been persuaded against the death sentence. “Alabama should not be barred from carrying out its judgment based on a federal court’s lawless speculation,” Scalia said.

Scalia then proceeded to a larger complaint about a system that he says too often blocks executions. Scalia’s remarks contrasted starkly with those from other justices troubled by the death penalty’s inconsistent imposition and lack of safeguards – most recently from retired Justice John Paul Stevens in this New York Review of Books essay. Two years ago, Stevens said he had come to realize that the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.”

Adopting an altogether different tone, Scalia wrote in Allen v. Lawhorn, “With distressing frequency, especially in capital cases such as this, federal judges refuse to be governed by Congress’s command that state criminal judgments must not be revised by federal courts unless they are contrary to … clearly established federal law, as determined by the Supreme Court of the United States. We invite continued lawlessness when we permit a patently improper inference with state justice such as that which occurred in this case to stand.”

Lawhorn’s situation notwithstanding, new end-of-the-year statistics will show that Alabama is one of the few states that have not seen a significant drop in executions in recent years to match the national downward trend.

Very few people have been able to convince Justice Scalia to buy a novel argument or take a new turn. Jim Lynn was one of them. I was reminded of that today when I saw the obituary for James T. Lynn in the Washington Post. During the Nixon administration, Lynn had been undersecretary in the Commerce Department and secretary of the Department of Housing and Urban Development. When President Ford took office, Lynn became director of the Office of Management and Budget. The Post described Lynn as having a “voracious appetite for work” and “scalpel-sharp intellect.”

I interviewed Lynn at his Bethesda, Md., home in September 2007 as I was tracking down people who influenced the trajectory of Scalia’s legal career. Then 80, Lynn was remarkably energetic with a keen memory. He recalled how he crossed Scalia’s path nearly a half decade earlier.

Lynn, a Cleveland native who had gone to college at Case Western in his hometown and then Harvard Law School, was recruiting young associates for the Cleveland-based law firm of Jones, Day, Cockley and Reavis, where he had landed after Harvard. As Lynn was on a flight to Boston and looking over records of Harvard third-year students, “He leaped out at me. When I got there, I asked a professor, ‘What about this fellow Scalia?’ And he said, ‘No, no, he’s going somewhere else.’” Scalia, who earned his degree in 1960, was about to commit to a Philadelphia firm.

Lynn decided to find Scalia and make a pitch anyway. He found him at the Gannett House, where law students hung out after finishing in the library stacks. Lynn engaged Scalia in conversation about the law and made a point of dropping the names of former Supreme Court clerks who had made their way to Cleveland’s Jones, Day. (Scalia had no fondness for the Midwest. He had spent a summer at Foley and Lardner in Milwaukee and found it “too far off the beaten path.”) Around midnight, Lynn said, “You hungry?” and the two men walked over to the Hayes-Bickford cafeteria on Harvard Square for bacon and eggs. On the way back to the Gannett House, Scalia agreed to visit Cleveland.

 At a dinner party Lynn threw for Scalia, the prospective new associate made an immediate impression by arguing for “blue laws” that banned Sunday liquor sales. “They really put it to him,” Lynn said of his colleagues, “and (Scalia) handled it beautifully.” Scalia also found a fellow showman in Lynn, who (like the future justice) played the piano and sang. The Post said Lynn and Scalia even performed in a barbershop quartet. In time, Scalia would join Lynn in the Nixon and Ford administrations.

Back in 2007, after I recounted to Scalia what Lynn had told me of their first meeting, the justice said, “Jim Lynn could talk anyone into anything.”

When he dissented, Supreme Court Justice David Souter, who served 1990-2009, tended to do it quietly. He rarely read a dissenting opinion from the bench, as fellow liberal Stephen Breyer increasingly does. He never engaged in hyperbole, as conservative Antonin Scalia has (e.g., Scalia said the 2009 Boumediene decision “will almost certainly cause more Americans to be killed”). Yet several of Souter’s dissents endure, notably his 2007 protest in Bowles v. Russell, which will be back before the justices this week.

On Monday the Supreme Court will hear a case that tests a 120-day deadline for wounded veterans to appeal denial of Veterans Affairs benefits (my story setting up the case of Henderson v. Shinseki is here). The new case goes directly to the scope of Bowles v. Russell, in which a five-justice conservative majority said judges could not bend certain deadlines set by Congress, no matter how compelling the situation. The majority opinion by Justice Clarence Thomas rejected arguments from a prisoner who had filed an appeal a few days late because of erroneous instructions from a judge. Souter, joined by three liberals, wrote “It is intolerable for the judicial system to treat people this way.”

The new case is more sympathetic, involving not a convicted murderer but a Korean War vet, David Henderson, who was 100 percent disabled with paranoid schizophrenia from his service. The case began after the VA denied his 2001 request for monthly compensation related to home care. Henderson was then shut out of Veterans Court review because he was 15 days late in filing an appeal. His lawyers say he was late because of the very illness for which he was seeking benefits. Justice Department lawyers counter that the deadline is firm and that vets are made aware of the time limit.

When the U.S. Court of Appeals for the Federal Circuit ruled 9-3 against Henderson last year, it said it was bound by Bowles v. Russell and firm deadlines. Dissenting judges, led by Haldane Robert Mayer, said that reliance was wrong because of the distinct veterans context. “No legal system can function without deadlines, but the majority’s eradication of equitable tolling in proceedings before (the Veterans Court) creates a Kafkaesque adjudicatory process in which those veterans who are most deserving of service-connected benefits will frequently be those least likely to obtain them.”

Judge Mayer highlighted Souter’s (“it is intolerable”) dissent and then added a few memorable words of his own: “The facts here are far more compelling. Bowles was a convicted murderer, and had a jury trial, a direct appeal and a federal district court review of his habeas application. … Acting (without a lawyer), Henderson filed an action challenging the (VA) board’s decision denying him monthly compensation for at-home care, but his complaint was dismissed because it was filed a mere fifteen days outside the 120-day filing period… . … So while Bowles, a convicted murderer, had several opportunities to present his case in a court of law, Henderson will have none.”

That was written in December 2009. Henderson has since died (on October 24 of this year). His appeal is being carried on by his wife, Doretha.

Bush v. Gore: Still a Trip

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When I drive directly from my northwest Washington, D.C., home to the Supreme Court, without stopping at the office, I take North Capitol Street south toward the Hill. And when I’m just about a half mile from my turn off of North Capitol, I hit the spot where I first heard on the radio that fateful Saturday, December 9, that the Court had halted the Florida recounts in the presidential election of 2000.

After ten years, I still cannot pass that spot without recalling the shock of the Court’s order. I had been driving in to get the latest filings and never suspected intervention was imminent. The Court’s conservative-controlled 5-4 order stopped Florida ballot recounts – a day after the Florida supreme court had ordered the counting resumed — and set oral arguments in George W. Bush’s appeal. The Court’s order also set the stage for what happened three days later: a 5-4 ruling that fully ended the litigation over the state’s decisive presidential electoral votes and let Bush take the White House over Al Gore. 

Irrespective of the legal merits (and I lay them out in chapters of both biographies), I don’t think I’ll ever – as Justice Antonin Scalia regularly admonishes – “get over it.”

In recent days, I have been even more aware of how much the case remains with us. Justice Stephen Breyer told me Tuesday that in his travels audiences regularly ask him about the ruling, and half the people still think it was wrong. Breyer, who dissented, uses Bush v. Gore in his latest book, Making Our Democracy Work, however, as a positive example of how  people rightly follow Court rulings even then they don’t like them.

I am asked about the case all the time. At a Smithsonian panel on Court trends in November, one of the first audience questions was from a man still angry about it. Also on the panel were acting U.S. solicitor general Neal Katyal, who had worked for Gore, and former U.S. solicitor general Paul Clement, who had worked for Bush, and they jumped in to air the two sides.

There’s something about Bush v. Gore that’s not going away. At least for those of us connected to the Court. New Yorker writer Jeffrey Toobin does observe in an essay this week about the anniversary of the case that former President Bush in his memoir, Decision Points, devotes less than a page to it.

Closing the Book on Antonin Scalia

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As the New York Times Book Review noted in a Sunday column, American Original is now out in paperback, and I’m moving on. I’m sure Justice Scalia will continue to give me plenty of material when the new term begins on the first Monday in October. Justice Sandra Day O’Connor, my first subject, has proved newsworthy even in retirement.

But I’m mostly turning now to my next project, centered on Justice Sonia Sotomayor. This effort will not be through the lens of standard judicial biography, however, as the first two books were. Sotomayor is in only her second year on the Court, of course, and my earlier subjects had each served more than 20 years when I began my research.

Rather, I will be examining the trajectory of Sotomayor’s life (beginning in 1954) against the progress of Latinos in the law and the political currents that led to her appointment as the first Hispanic justice. I am looking at the broader landscape of minority appointments and the Hispanics who came before her who might have had a shot at making history but never got an interview with the president.

This project will take years, as the others did. When I finished the O’Connor book and moved onto Scalia, I used to joke that I was trading Palo Alto and Phoenix (her stamping ground) for places like Trenton and Queens (his). Now, alas, it’s the Bronx.

Justices and Their Personal Trials

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When a Denver student asked Justice Sonia Sotomayor on Thursday about the “biggest sacrifice” Sotomayor had made to move ahead professionally, the justice paused and told her audience in the university auditorium (and on C-SPAN) she was about to say something “more personal than you may want” to hear. I thought about how – as was  widely reported during her 2009 nomination — Sotomayor had divorced young, then broken off an engagement in her 40s, and remained single now in her 50s. She had spoken bluntly early in her career about the toll work took on her romantic life, telling one interviewer: “A man who calls you three times and all three times you answer, ‘I’ve got to work late’ … after the third time, he begins thinking ‘Gee, maybe she’s not interested.’”

But last week the justice answered a question about personal sacrifice by talking about her elderly mother, Celina, who was hospitalized recently. The sacrifice, Sotomayor said was in “taking this job when I know that I am on the tail end of my mother’s life.” Sotomayor said she regretted work demands did not let her be with her mother right now.

Celina plainly has been the single most influential person in the justice’s life. When President Obama nominated Sotomayor to the Court in May 2009, she declared of the woman who had worked six days a week as a nurse to support the family, “I have often said that I am all I am because of her, and that I am only half the woman she is.” (Sotomayor’s father died when she was nine years old.)

Justices, typically appointed in their 50s, often come into office with elderly or deceased parents. Elena Kagan’s parents died even before her confirmation to solicitor general in March 2009. Justice Antonin Scalia’s parents died several months before he was nominated to the Court in June 1986. (They passed away within days of each other during the previous Christmas season.) “It took some of the sweetness out of it,” Scalia told me about his parents’ missing his nomination.

When the late Chief Justice William Rehnquist lost his mother (in 1988, when she was in her 90s), he answered condolences from colleagues by observing that no matter how old one is, a parent’s death takes a heavy toll. Rehnquist’s mother was the driver in that family. Sotomayor’s mother represents even more.

Among the first judicial nominees I ever tracked was Vaughn Walker, when I was working for Congressional Quarterly’s weekly magazine and covering the Judiciary Committees on the Hill. In 1989, key Democratic senators, led by California Sen. Alan Cranston, along with several liberal interest groups, opposed President George H.W. Bush’s nomination of Walker to a U.S. district court in San Francisco. It was primarily because of Walker’s membership in a men-only private club.

Walker, then 45, ended up leaving the club and getting confirmed and became little more than a footnote in a year of successive battles between a Republican president and Democratic Senate over judgeships and Justice Department positions. That summer, the Senate Judiciary Committee rejected nominee William Lucas, a Detroit lawyer who worked primarily in law enforcement, to head the Justice Department’s important civil rights division, and some senators tried in vain to derail Clarence Thomas, who Bush first tapped for the U.S. Court of Appeals for the D.C. Circuit. (Thomas was confirmed in early 1990; Bush then nominated him for the Supreme Court in July 1991.)

With liberals now applauding Walker for his decision this month declaring California’s ban on same-sex marriage unconstitutional, it’s hard not to recall his nomination and be reminded of the difficulty of predicting judges based on early records or the appointing president. Ronald Reagan first nominated Walker, but the nomination stalled in 1988.

The usual pattern is that appointees meet expectations that reflect a president’s views. That’s why the liberalism of Justice David Souter (1990-2009), another Bush appointee, was so notable – and infuriating to conservatives.

We now have a new justice, Elena Kagan, whose relatively scant paper trail has spawned competing forecasts. Her time in the Clinton and Obama administrations leads some observers, including me, to believe she will be at least as liberal as the justice she succeeds, John Paul Stevens.

But it is worth observing the assessment this summer of Stanford Law Professor Michael McConnell, a conservative who previously was a U.S. appeals court judge (appointed by George W. Bush). McConnell, a thoughtful scholar respected across ideological lines, has known Kagan for twenty years, since they were on the faculty at the University of Chicago law school. “I think she will be more conservative than liberals hope, and less liberal than conservatives fear,” McConnell wrote in a detailed eight-page letter of endorsement to the Senate Judiciary Committee.

 He reviewed her writings on free speech, religion and executive power and said, “Obviously, any nominee of this (Obama) Administration will reflect the progressive political outlook of the president … . Much in Elena Kagan’s record demonstrates that outlook. But this must not be exaggerated. On a significant number of important and controversial matters, Elena Kagan has taken positions associated with the conservative side of the legal academy. … No one can foresee the future, but I would not be surprised to find that Elena Kagan, as a justice, serves more as a bridge between the factions on the Court than as a reliably progressive ideological vote.”

Justice Kagan is 50 years old. If she serves to 90, Stevens’ age, she will have four long decades to fulfill the vision of President Obama – or not.

An editorial assistant from Farrar, Straus & Giroux wrote last week to say he was clearing out old correspondence and drafts associated with American Original and to ask whether I wanted anything saved. With the Antonin Scalia biography securely in hard-cover and about to be in paperback (September 1), I said don’t bother. But, I said, if you come across the original Herblock cartoon I acquired for the photo insert, save it.

I worked with the legendary Washington Post cartoonist Herb Block for eight years and was a fan of his work and even greater admirer of the man himself. He died in 2001 at age 91. I used an iconic drawing of his in the Sandra Day O’Connor biography. The cartoon showed Lady Justice lifting her blindfold to see a robed woman ascending the Court steps. “Well, it’s about time,” Lady Justice is saying. The Herblock I used in the Scalia book was drawn in 1996 after the justice appeared at an event sponsored by the Christian Legal Society at a Mississippi law school. Scalia criticized the “worldly wise” who might mock “true believers.” As controversy over Scalia’s speech boiled up, Herb sketched him on the bench reading the Bible and fuming about “worldly wise guys.”

Recalling that cartoon last week nicely coincided with a question from Touro law professor Marty Schwartz, who was a panelist with me at a recent legal conference in New York. Marty, who has an extensive collection of law-related cartoons, asked me about a Jim Morin drawing I had cited in a chapter on Scalia’s views related to affirmative action and other racial policies. The cartoon was published in the Miami Herald in 1988 after a conservative Court majority had voted to reconsider the reach of a longstanding civil rights law. Morin linked the action to President Reagan, who had appointed most of the justices in the majority, and drew a caricature of Reagan sticking his tongue out at Abraham Lincoln in his chair at the memorial. Under the headline “Supreme Court Votes to Reconsider Major Civil Rights Law,” Lincoln looks distressed. (The Court’s action had come in a case of Patterson v. McLean Credit Union. As it turned out, the justices in 1989 did not significantly scale back the civil rights law in question, even as they voted against the African American woman alleging harassment on the job.)

After reading about the cartoon in American Original, Marty tried to find the Morin work in various Internet cartoon-banks. He turned up other Morin cartoons on race and even one related to the Patterson case, yet not the cartoon I mentioned.

I knew it was unlikely that I had personally clipped the 1988 cartoon, but I also knew I wouldn’t have referred to a drawing I hadn’t actually seen. I suspected I had found and copied it from a justice’s files during research.

In a quick search of the plastic bins stacked in the basement under the ping pong table (the Library of Congress I am not), I found my Patterson files. And there was a cartoon Justice Harry Blackmun had included among his personal conference papers on the case. Blackmun had saved Morin’s cartoon along with newspaper editorials denouncing the conservatives’ vote to review the longstanding law. It endures, even beyond the Internet. I made a copy for Marty and dropped it in the mail.