This July, in the midst of the contentious hearings surrounding Judge Sonia Sotomayor, the Heritage Foundation convened its annual “Scholars and Scribes” panels to discuss the current trends in jurisprudential action employed by the Roberts Court. Composed of two separate panels, one primarily featured right-leaning legal academics and the other consisted primarily of left-leaning legal journalists. The event provided several bits of analysis both on the current legal philosophy employed by the Roberts Court, and on the potential future of that philosophy if the Court is joined by current nominee Justice Sotomayor.
The initial contribution of the afternoon came from Miguel Estrada, the former assistant to the Solicitor General during the Clinton administration. Estrada’s presence was particularly topical and ironic, given that he is a figure whose name has often been cited by Senate Republicans as an exemplary Hispanic jurist denied his rightful chance at a Federal judgeship. However, rather than capitalizing on his recent exposure, Estrada chose instead to deliver a short, highly academic ten minute statement on the Court’s most recent term, leavened by occasional spots of dry wit. “You’re not quite sure if the Supreme Court is actually running a court or the TV lineup for a major network,” Estrada joked. “I could not make my government up.”
Estrada’s humor often took on a vaguely didactic note, especially in his descriptions of the cases Fox v. FCC and Caperon v. A.T. Massey Coal Company. The issue in the former case, Estrada said, was “the extent to which a no-name starlet can go on national television and say the ‘F’ and the ‘S’ word to the great shock of all present… It used to be the rule that you cannot use indecent language[.] If you use[d] the ‘F’ word or the ‘S’ word as former Vice President [Dick] Cheney used to [while talking to] Senate Chairman Patrick Leahy on the floor of the Senate, you would not understand that the Vice President was [not] inviting sexual congress with the Senator…this was only being used as an intensifier.” Discussing the latter case—which involved the question of whether judges who had accepted campaign contributions from interested parties were tainted by the act—Estrada simply said, “This is one of the things that John Grisham couldn’t even come up with.”
Michael Carvin, a Former Deputy Assistant Attorney General for the Reagan Justice Department, was even more caustic in his statement, calling the idea of “effects tests” which originated with Section 2 of the Voting Rights Act “absurd” and “a mandate for discrimination against non-minorities.” “If you say that it’s illegal to hire fewer blacks than there are in the proportion of the relative workforce,” Carvin argued, “that, of course, is just a requirement that you engage in proportionally representative quotas.” When asked about the principles which an ideal justice would employ on the court, Carvin drew laughs from the crowd by citing Sonia Sotomayor with contemptuous mock irony. “I have never seen such a stinging rebuke to the lawless, empathetic, touchy-feely jurisprudence of President Obama as [that] delivered by Judge Sotomayor [during her confirmation hearings],” Carvin said. He also attacked members of the Court’s liberal wing for becoming “born-again originalists” only when it was politically convenient to do so, and struck a cynical pose regarding the judicial trend of the past year.
“It’s Kennedy’s Court. Whatever Justice Kennedy wants, that’s the trend,” Carvin said.
Following the “Scholars” panel came the “Scribes” panel, moderated by Robert Alt, currently of the Heritage Foundation’s Center for Legal and Judicial Studies and formerly of National Review.
Lyle Denniston of SCOTUSblog began the discussion with an upbeat analysis on the future of the Court. “This coming term is going to be a really spectacular term,” Denniston said, citing “campaign finance law,” “the Slaughterhouse Cases” and “appointment power to the accounting board” as several areas of law soon to be litigated before the Court. However, Denniston’s speech also had some disappointing notes for those interested in video coverage of the Court.
“There is no real prospect, whatever Arlen Specter thinks to the contrary, that the Court is going to allow cameras in the courtroom,” Denniston said.
Finally, while discussing the future trends on the Court, Denniston took issue with the idea that the current Court lacked a coherent ideological agenda. “I think the Chief Justice is in a hurry to establish some new principles of Constitutional doctrine,” Denniston said. “But I think he must do it in a hurry.” Echoing Carvin, Denniston also cited Justice Kennedy as the defining vote on the Court, and suggested that once Kennedy was gone, his place would probably be filled by three judges who would form a “dynamic center.” Those three were “Steve Breyer on the Left of the trio, Sam Alito on the Right, and Judge Sotomayor somewhere in the middle.”
Mytheos Holt is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.
