Benjamin Shatz writes: I returned to my alma mater on July 30 to see the 110th Justice of Supreme Court of the United States in a panel discussion titled "The Second Conversation with the Honorable Samuel A. Alito, Jr., on the Law of the Constitution." (The first conversation was last summer's program.) If you're a Supreme Court Justice and choose not to travel abroad for the summer, why not spend part of the summer teaching a class in Malibu?
The 90-minute program (covering lawyering and the craft of judicial opinion writing) was moderated by Pepperdine's Doug Kmiec, and the other panelists were Tenth Circuit Court of Appeals Judge Michael McConnell, and former Solicitors General Walter Dellinger and Ken Starr, Pepperdine's dean.
The program was recorded and will be available for viewing at some point soon. I've tried to capture comments of particular interest below. But first a note about the audience. The usual academic suspects where there, including Akhil Amar (visiting from Yale) and Kurt Lash (visiting from Loyola). And a number of judges also were there, including Justices Gilbert and Perren of Division Six. But where was the bar? Although the Caruso auditorium did not look empty, it certainly was not filled to capacity. Considering how many lawyers must live or work within a 20 mile radius of Pepperdine- and considering there are only nine Supreme Court Justices and they don't seem to visit the Left Coast very often—one would think there'd be more interest in the legal community. Could it be that an arguably shameful turnout by the bar has something to do with how popular a conservative justice may or may not be in West L.A.? To be sure, at least a few recognizable appellate practitioners were there, including Mike Berger and Gideon Kanner (from my firm, Manatt); Ted Boutrous (Gibson Dunn), and Paul Watford (Munger Tolles), but I might have expected more. Justices Thomas is scheduled to speak at Pepperdine on September 5—perhaps the turnout will be better?
The substance of the program was interesting, though not earth shattering. Baseball fan Justice Alito explained that he has often spoken on comparing judges to umpires, pointing out that both roles are not mechanical. Both have rules to apply, and should not make up new rules. Judges should not assume a role broader than the Constitution allows. How that role is played, however, changes over time. For instance, in Learned Hand's day, judges were cautioned that the easiest way to misread a statute is to read it literally (and judges were warned not to "use the dictionary as a fortress"). But now judges pay close attention to plain meaning.
Judge McConnell (who garnered laughs by pointing out that the Constitution calls his court an "inferior" one) added that the courts' role is not to serve as decision makers for important issues of public concern outside the limits of statutory law. Life tenure is supposed to insulate federal judges from being influenced by popular public opinion. Courts are the only part of government required to explain why they do what they do. Written opinions expose whether a decision is properly grounded for any reader to evaluate. As Dellinger pointed out, contrary to popular conception, courts aren't really the most "secretive" branch of government because their input and out is public.
One the topic of whether it was strange for judges to vote first, and then write the opinion, both jurists explained that post-argument conference votes are not "set in stone," and that in fact the crucible of writing and comments can prompt different results. Voting is the start of the deliberative process, not the end. The panelists agreed that post-argument conferences should be kept confidential (unlike in Brazil, for example, where judicial conferences are televised) to encourage a robust exchange of views. Justice Alito explained that when he was on the Third Circuit, that exchange often occurred by email, but that email is not used much at the Supreme Court. Instead, most exchanges occur through circulated draft opinions. Sometimes an opinion simply "won't write," and that leads to a result different from the original vote.
Justice Alito explained that in terms of thinking about his audience, he first writes for himself--to create an argument he finds convincing—then he writes to agreement with other Justices. Then he considers those will have to apply the opinion (usually judges and lawyers). He recognizes the need for special attention to precision, in that often his audience isn't really looking for what he means, but rather looking for bits of an opinion useful for pushing an agenda for clients.
Judge McConnell lamented that legal academics are often too political and ideological in their analysis of opinions. The first question should always be "is the opinion well grounded," not a focus on the result. Politicians and practicing lawyers need to focus on results, but law professors shouldn't. Blogs are beginning to provide appropriate critiques of judicial opinions, especially in certain substantive areas. Indeed, blogs are often the best (or only) feedback he gets on opinions, and thus he views them as a favorable and welcome development.
Do the Justices appreciate court of appeals opinions pointing out problems with Supreme Court precedent? Alito comically responded, "Yes, provided they're not my opinions." Dissenting and concurring opinions are influential in persuading the Court to grant certiorari. Although fractured opinions should be discouraged, writing separately is very important. Separate opinions can affect how an opinion is interpreted and dissents ensure that the majority opinion is disciplined and well reasoned. In sum, Justice Alito believes that judges shouldn't write separately without good reason, but it does serve an important function is and part of America's individualistic spirit. Judge McConnell noted that at dissenting opinions at the court of appeals level are important in sending signals to other circuits.
Is oral argument really the start of the Justices' conference, with the Justices arguing to each other through questions to counsel? Justice Alito does not view argument this way. He sees the purpose of argument as to ask lawyers to respond to real concerns about the case. The most helpful oral arguments set out the arguments made in the briefs in a different way, that summarizes or boils it down to its essentials in a new, compelling, and understandable way. A good argument is not encumbered by quotes and citations. Dean Starr emphasized the importance of reading the court's body language. The "unpardonable sin" of appellate advocacy is to interrupt or talk-over a judge. And Prof. Dellinger noted that oral argument is the place where pragmatic ramifications will be examined: advocates should be ready to answer "what is the worst consequence of a ruling in your favor?"
Although the audience could not ask questions directly, written questions were solicited and screened. One set of questions concerned Justice Thomas' lack of questioning at oral argument. Justice Alito defended his choice not to ask questions (pointing out that historically that was how the court functioned), and noted that Justice Thomas is a forceful participant at conference.
On the ever popular stare decisis topic (Dean Starr: "Stare decisis is not an inexorable command"), Judge McConnell thinks that the Supreme Court seems too hesitant in overruling precedent when necessary, and should do so more often and more clearly, rather than overreach to distinguish precedent. Justice Alito responded that distinguishing cases must be done honestly. The program ended with sincere ovations for Justice Alito and the other panelists.
Video of the program has been posted here:
http://law.pepperdine.edu/alito/072008_conversation_alito.html
Posted by: Ben Shatz | August 01, 2008 at 03:09 PM