Some final observations on the last Supreme Court term. (Final = for now.)
Diversity. Linda Greenhouse has been the New York Times Supreme Court reporter for the past 30 years. She's an attorney herself, and whenever there was an oral argument or a decision on a major case, her stories on it would be the first I'd read. Her commentaries were invariably incisive, couched in the words of a layman but carrying the insight of a lawyer.
Greenhouse is leaving the Times after 30 years on the beat, and in Sunday's paper she looks back on that time, during which the Court handed down almost 2,700 decisions. What I found most interesting was how moved she was by the appointment of the first woman justice, Sandra Day O'Connor, to the Court in 1981.
The reason I found it interesting is that when I blogged about the Court's decision this term in Snyder v. Louisiana, in which the Court struck down Louisiana's penalty of death for child rape, I read Coker v. Georgia, the 1977 decision in which the Court had ruled unconstitutional the Georgia statute permitting capital punishment for "ordinary" rape. Although the victim in Coker was 16, the courts (both state and Supreme) treated her as an adult. More difficult, from a vantage point thirty years later, was this sentence: "Although it may be accompanied by another crime, rape, by definition, does not include the death of or even the serious injury to another person." Somehow, I doubt if that sentence would have appeared in the opinion if O'Connor or another woman had been on the Court.
We tend to ridicule the notion of reserving a spot on the Court for a "black Justice" or a "woman justice" as quota-ism taken to the extreme. But there's a purpose to it. The Court is the most elitist and non-democratic institution in our government, and that needs to be leavened a bit. Whether intended by the Framers of not, the fact remains that the Court has a powerful impact on the lives of the people in this country. Clarence Thomas has certainly not been an ardent advocate of the views of blacks in this country, but only a black could have given the perspective he did when the issue of cross-burning reached the Court. Whatever one's views on abortion, it is certainly arguable that any decision will be more acceptable to the public if it is not made by nine men.
That doesn't mean that the Supreme Court has to look like America, but it shouldn't look like the University Club, either.
A victory for original intent? Reading the opinions in Heller, the Court's decision affirming that the 2nd Amendment created an individual right to bear arms, was not for the squeamish (or for those with limited time), but it was interesting in at least one respect: all the opinions revolved around the question of what the Framers had intended when they drafted the Amendment. And the search for originalist meaning did not stop at Heller; from Giles to the Boumedienne, the justices seemed intent on sifting the entrails of 17th and 18th century British and American legal writings to determine what was the intended scope of the confrontation clause or of habeas corpus.
As this article notes, that's not necessarily a good thing:
Neither Scalia nor Stevens is a "competent historian," University of Texas at Austin professor Sanford Levinson wrote in another Balkinization posting. Their work is "what is sometimes called 'law-office history,' in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one suspects are predetermined positions."
Wow. Lawyers choosing the evidence which supports only their side. Who woulda thunk it?
More on Heller. Many commentators, yours truly included, have suggested that the Court's decision in Heller raises some questions about the validity of some gun laws, like those prohibiting possession by ex-felons, or even, in certain cases, the 1-year firearm specification under Ohio law. Former Solicitor General Ted Olson chimed in with his opinion that "the Court might decide there are some classes of felons that ought to be treated differently from other classes of felons" in an interview in this article. And Prof. Berman points to some other questions, like whether a defendant who's pleading to a felony needs to be advised that he's giving up his constitutional right to have a gun.
It's going to be interesting to see how this develops, and it may develop in ways that a lot of people didn't intend it to.
See you on Monday.