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Supreme Court Session in Review

July 3, 1997 at 12:00 AM EDT

MARGARET WARNER: Now for some perspective. Susan Bloch, a onetime Supreme Court clerk, teaches constitutional law at Georgetown University. John Roberts, deputy solicitor general in the Bush administration, is a Supreme Court litigation specialist in private practice in Washington. Douglas Kmiec, an assistant attorney general in the Reagan administration, now teaches law at Notre Dame University. And Laurence Tribe teaches constitutional law at Harvard University.

Professor Tribe, what would you say is the dominant theme of this term?

LAURENCE TRIBE, Reagan Assistant Attorney General: Well, I think, Margaret, the dominant theme is probably a court that describes itself as cautious and conservative, has, in fact, proceeded rapidly and strongly to protect state sovereignty to a degree that no court since well before the New Deal ever did, and at the same time has constricted the power of the Congress of the United States as in the invalidation of parts of the Brady Gun Control Act and as in the invalidation of the Religious Freedom Restoration Act, with opinions that went considerably farther than necessary. So a dominant theme is relatively little caution in that direction in protecting the states, considerably more caution in defining individual human rights.

MARGARET WARNER: Prof. Kmiec, do you agree with that, a ringing endorsement of states’ rights, state authority?

DOUGLAS KMIEC, Notre Dame University: Well, it clearly is an endorsement of federalism and state authority, but contrary to Prof. Tribe, I think this is a term that’s really about reaffirming and reinforcing constitutional boundaries, and constitutional boundaries that exist not just between the federal government and the state government but also the boundaries that exist between Congress and the court and between Congress and the President and the court and the President. After all, this is a term where the court not only limited the federal Congress in terms of its ability to define constitutional rights, saying that the Congress was bound by the Constitution, but this was also a court that restrained itself. It said that it was not going to engage in philosophizing and create new constitutional rights in the form of assisted suicide.

MARGARET WARNER: Susan Bloch, since there are so many issues, let’s stick with the federalism for a minute. Justice Scalia in the Brady law decision talked about dual sovereignty between the federal government and the states. Is that what the majority is saying? Are they coequal?

SUSAN BLOCH, Georgetown University: Well, this has been a longstanding position starting with Rehnquist by the conservatives, and it’s an issue that’s gone back and forth in the last 20 or so years. Now, Rehnquist has a five-four majority to continue this position. It’s–you know, because it’s five-four, it’s fairly tenuous, but for the moment the conservatives have the vote to keep Congress from mandating that states do certain things.

MARGARET WARNER: Do you see a majority in the court, John Roberts, for that proposition? I mean, does the five-four–do these five-four decisions mean really that there are five votes now for the proposition that these two branches are coequal?

JOHN ROBERTS, Former Deputy Solicitor General: I do think there’s a solid majority on the court for the proposition that federalism has to be taken seriously; that states do retain rights under our federal system; and that, for example, as the sheriffs were saying to the federal government, we want you to do this, we don’t work you. They work for the states, not for the federal government. That basic division of authority is designed to protect individual rights. That’s one area where I disagree with Prof. Tribe. I think by enforcing these structural limitations, states have their powers and rights. The federal government is limited. The end objective, as the framers intended, is to protect individual rights.

LAURENCE TRIBE: Margaret, if I–


LAURENCE TRIBE: For a moment. I have no disagree with and, in fact, have defended the view that separation of powers and federalism, properly understood, do protect individual rights. My concern is with decisions that are sort of heedless of limits. When, for example, the Supreme Court struck down the Brady Act, it did so in an opinion–one completely unnecessary part of which–threatens the constitutionality of all of the independent agencies. When Justice Scalia, writing for the court, expressed the rather remarkable proposition that one of the flaws with the statute wasn’t just that it commanded the states, rather it was that it used functionaries who were not answerable to the President. Individual rights, of course, are protected by separating powers as the Constitution conceives, but when the court, as in the Religious Freedom Restoration Act, decides that Congress is to be limited very strictly in protecting individual rights under the 14th Amendment, without even acknowledging a position that the full court had endorsed in the 1960’s, namely that Congress has more power to raise the ceiling of protection than it does to lower the floor, then I think the court is acting in a way that is not really consistent with the rights that separated and divided powers are supposed to protect.

MARGARET WARNER: You’ve raised a couple of different issues. John Roberts, respond to the first one he raised, which was that in the Brady decision essentially could have very long range implications that could call into question the power of regulatory agencies that the federal government deputizes to do things. Do you think it could do that?

JOHN ROBERTS: Well, it could and it could not. I mean, that’s the way that a court functions. It decides the particular cases before it, and the next case will decide how broad that decision was meant to be and how narrow. The fact that the decision refers to questions that may implicate the constitutionality of independent agencies doesn’t mean that those agencies are unconstitutional. It means that those are issues that have to be addressed in the future.

MARGARET WARNER: And Professor Kmiec, weigh in on the other issue having to do with individual liberties and Professor Tribe’s view, if I can paraphrase, that this was not perhaps a great term for individual liberties against the power of the state.

DOUGLAS KMIEC: Well, I think it is quite a significant term for individual liberty. The court in the Boerne case, dealing with the Religious Freedom Restoration Act, indicated that Congress’s power under Section 5 of the 14th Amendment is not a power to redefine the Constitution as it sees fit. No one’s individual liberty is safe if the Constitution is not a fundamental written charter but is reduced to the status of ordinary legislation. And what the–what the Congress attempted to do in RFRA, while quite noble–

MARGARET WARNER: That’s the acronym for the Religious Freedom Restoration Act.

DOUGLAS KMIEC: Right. The Religious Freedom Restoration Act. What the court attempted to do there may have been quite salutary from the standpoint of on this occasion for religious freedom but the next time Congress might act in a different way. Now, Professor Tribe may be of the view that some isolated opinions from former Justice Brennan would allow the court or would allow the Congress only to expand constitutional rights, but the simple matter of it is that the Constitution is not appointed to rewrite the Constitution through ordinary legislation, and one person’s expansion of constitutional rights, quite frequently, subtracts from someone else’s.

MARGARET WARNER: Professor Tribe, what about that point?

LAURENCE TRIBE: Well, the point I think is valid as a general proposition, but the answer is the Bill of Rights, which obviously limits the Congress and prevents any alleged expansion of someone’s rights from occurring at the expense of others. But I definitely don’t want to leave the impression that I think the court this term didn’t protect rights. I think the decision to plant the flag of free speech out in cyberspace was an extremely important rights protecting decision. And I also think that a not much noticed trend this year has been to protect in a variety of different ways the right of people to defend their rights in court–the Paula Jones case denying immunity for the President, the case interpreting civil rights laws so that prisoners could sue private prison guards without immunity–the invalidation of the $1.3 billion class action asbestos settlement to make sure that absent parties get meaningful protection for their rights and ultimately–

MARGARET WARNER: Which you were involved in, we should say. Which you were involved in, yes.

LAURENCE TRIBE: Yes. I guess I’m not wholly objective about that because I enjoy winning them. But, in any case, I think that was an important protection of rights, and then finally Justice Ginsburg’s decision early in the court’s term, which I think is much more important than the commentary to date would suggest, the decision protecting the right of a mother who has lost her child by an official government act to appeal that decision, even though she cannot afford the $2,000 that it costs for the transcript. Justice Ginsburg, in fact, also wrote the asbestos case. So there are a number of cases in which the justices have indirectly protected what is in some ways the most basic right of all, the right of access to court to protect your rights.

MARGARET WARNER: How do you see, Susan Bloch, this court this term on the question of individual rights and how expansive the due process clause of the Constitution–which is often used in that regard–is?

SUSAN BLOCH: Well, I think I agree with Professor Tribe that the court did a fair amount of good protecting individual rights. I think the Internet case was a very important case. It really emphasized how important the Internet is and how important the First Amendment must, you know, protect it. In the due process area one of the big cases, of course, was the court’s upholding the statutes that ban assisted suicide, and the court there was very cautious. I think it was clearly reluctant to go down the road that its predecessors had gone down in Roe Versus Wade and the abortion controversy. This was a court that in saying there’s no broad constitutional right to assisted suicide still was cautious and noted that those statutes, in fact, allow for pain medication, even if it might kill the patient, so that it was a protective court but a cautious court, and it showed no deference to Congress or the President.

MARGARET WARNER: What view did you, John Roberts, see the court giving of its own powers, just following up on what Susan Bloch was saying?

JOHN ROBERTS: Well, I think there are two themes there. On the one hand it was jealous of its power and responsibility to define the Constitution. In the Religious Freedom Act it was really saying to Congress that’s our job; don’t tell us what the First Amendment means; we’ll tell you. In other areas, though, the case that Prof. Tribe won that he mentioned, the court expressed some caution about how suitable federal courts are to decide things like these massive asbestos settlement problems and expressed some concern that courts may not be suited for all things. So I think they recognized a limitation on their branch but they were quite jealous of their prerogatives.

MARGARET WARNER: Wouldn’t you say also that in the physician-assisted suicide they were acknowledging their own limitations–

JOHN ROBERTS: Well, they were acknowledging their limitations, but I think it’s important not to have too narrow a view of protecting personal rights. The right that was protected in the assisted suicide case was the right of the people through their legislatures to articulate their own views on the policies that should apply in those cases of terminating life and not to have the court interfering in those policy decisions. That’s an important right as well.

LAURENCE TRIBE: Even there, if I could just jump in for a moment, even there it wasn’t just the two justices mentioned in your setup piece, I think Justices O’Connor and Souter, but also Justices Stevens and Breyer, who said that although there is no general right to get a doctor’s help in dying, nonetheless, there is room not only for the states to act in this area but as the chief justice himself acknowledged, room to make federal constitutional attacks on particular applications of existing laws which might in a special context condemn people to unbearable suffering.


MARGARET WARNER: Yes, Professor.

DOUGLAS KMIEC: I think there’s something else that’s significant in all of the cases, including the assisted suicide case, and that is that there’s been a longstanding debate on this court as to the proper method of constitutional interpretation, whether it’s governed by text and structure and reference to history and tradition, or whether there’s a more expansive activist notion of substantive due process at foot. But quite frankly, I think there is now a solid majority bringing over the moderate justices on the court, in particular Justice O’Connor and Kennedy, for the view that original understanding, particularly careful attention to history and tradition counts because what the–what the holding in the assisted suicide cases say is that a practice that has been condemned for close to 700 years is not a very good candidate for a fundamental right, and it’s really not the job of the Supreme Court to answer these sensitive and difficult moral and religious questions, but as John Roberts pointed out, these are better addressed in the legislative assembly.

MARGARET WARNER: Susan Bloch, can you–do you think there is–I mean, philosophically, what does this all add up to? Is there a definite philosophical identity to this court, or is it a question of blocks?

SUSAN BLOCH: Well, I think–

MARGARET WARNER: Or something else.

SUSAN BLOCH: You can say a few things. I mean, the court is far more conservative than it was 10–

MARGARET WARNER: Meaning what in judicial terms?

SUSAN BLOCH: For example, when we were talking about the Freedom–the Restoration of Freedom Act, the–there was the theory that Justice Brennan had that the court–that Congress could enlarge the scope of constitutional protections and couldn’t constrict it? And that had a–when we teach constitutional law that’s–that was a valid theory. On this court, no one, not even the dissenters, even talked about or embraced that theory, so that a number of theories that were in play when Justices Brennan and Marshall were on the court aren’t even mentioned anymore.

MARGARET WARNER: How do you see it, John Roberts?

JOHN ROBERTS: Well, I think it’s a moderate court but one that is very serious about the limits it sees in the Constitution, whether it’s the limits on Congress, limitations on the federal government, or limitations on the court, itself. And if it’s a court that doesn’t seem so warm and embracing of theories that are popular on the law school campuses, I hope the other members of the panel will forgive me for not thinking that’s a serious flaw.

MARGARET WARNER: Prof. Tribe, who do you see as the intellectual leaders on the court, the ones who have most influence with their colleagues?

LAURENCE TRIBE: I think, Margaret, that it depends on the issue. It’s very clear that Justice Scalia is an intellectual of first order and also a great wordsmith and occasionally he pulls people along, and sometimes he alienates them. It’s also clear that Justices Ginsburg and Souter and Breyer–I mean, I’m going to end up mentioning, I guess, all of them if we put–


LAURENCE TRIBE: –it that way. You don’t want me to. But I do think there’s one way to answer the question you put a few minutes ago about the overall approach of the court. Of course, it’s a court concerned with text and history and structure and with limits, but it is much more willing to move beyond text, to read history rather loosely, and to invent new rights when it comes to things like states’ rights than it is when it comes to other kinds of rights. It’s really a matter of whose ox is gored and which particular set of constitutional values is dominant. And this court has a clear division in which at least five justices have a very different sense of what are the dominant constitutional values from the other four, and sometimes there is a switch over from one or two justices.

DOUGLAS KMIEC: Well, of course, there are some fundamental differences. There is a 10th Amendment that reserves power to the states. There is no assisted suicide clause, and that should give the court some responsibility to be prudent and careful in the manner in which it proceeds.

LAURENCE TRIBE: Oh, Doug, come on. I mean, when the gun control decision was announced from the bench, Justice Stevens kind of tweaked Justice Scalia, who had admitted there was nothing in the text that defended his decision, said he was just inferring it from structure, and Stevens said I thought that was what you guys objected to when we did it or our predecessors did it for birth control and other rights. I really think one should be fair about how widespread is the willingness to create rights by inference and not just by look at text.

DOUGLAS KMIEC: Well, here’s where a methodology disagreement exists. Justice Scalia has never argued, as you know in your colloquy with him, in a matter of interpretation, that just text and structure counts. When text and structure don’t answer it, one does have to go to history and tradition, and that’s what counts. And the question is: Do we disregard that common law tradition, that natural rights tradition, as it were, or do we just make it up in 1997?

MARGARET WARNER: All right, gentlemen, I’m sorry. I’m going to have to interrupt this and leave it there. Thank you all four very much.