When thinking about the role of courts, lawyers, legal scholars and citizens should not automatically treat Brown as a paradigm and such cases as Dred Scott, Hepburn, Pollock and others as anomalies. Seen from broader history perspective, Brown is far more anomalous than Dred Scott. Throughout most of American history (and in many new constitutional democracies), progressives sought legislature victories and played defense in court. The Supreme Court, reformers understood, was far more likely to declare unconstitutional legislative efforts to promote political equality than prevent elected officials from discriminating unjustly. Times may change, but a good case can be made that, by protecting white persons from affirmative action programs and affluent Americans from campaign finance restrictions, the contemporary Supreme Court is merely reverting to form.

I’ve been telling students something like this for 15 years. My version is a little different, as it makes a little more space for a libertarian/conservative split when it comes to some issues touching on the Bill of Rights, with the libertarians sometimes sounding quite “liberal” at times. But quibbles aside, it never ceases to amaze me that the fundamental idea that our courts are most frequently, generally, perhaps even naturally, conservative-bordering-on-reactionary is even controversial, much less that it is far from the dominant consensus. (That said, I do accept there is a case to be made that the current court is more conservative than the post-Korean-War norm, but that’s just a question of how far back you sample.)

I understand that law school faculties underwent a great expansion which resulted in their being stuffed with and dominated by a generation that saw the Warren court as the ur-Court. But even if that is your ideal, and it wasn’t perfect, why does this belief so often carry with it the myopic view that the Warren court was not a relatively rare historical aberration? Even most of the seemingly progressive moves of the Marshall Court were actually centralizing (Federalist), then seen as generally supporting the interests of the propertied and creditor class. And in between…

Such at least is my positive claim. The normative implications are less clear, for there are reasons why it may not be all bad to have a conservative bias in the courts, at least if one has a small-d democratic bias in the legislature. (I’d say we don’t have that now, by the way, due to various sorts of gerrymandering of congressional districts and the small-d democratic imbalances in the Senate.)

But one positive implication is clear: progressives put their reliance on courts at their peril. Social change happens most commonly in civil society (not least in churches) and at the ballot box. The courts are most commonly followers, not leaders. Mr. Dooley was a genius.

Steve being a friend, I know he’ll forgive me for my quoting it in full:

Over at Opinio Juris, Kevin Heller has news of an immensely important development — the Iraqi Court of Cassation’s reversal of Mohammed Munaf’s conviction by the Central Criminal Court of Iraq (the “CCC-I”). Munaf’s habeas petition is one of two brought by U.S. citizens detained in Iraq set to be argued before the Supreme Court later this month (and in which I co-authored an amicus brief in support of the federal courts’ jurisdiction).

Significantly, the distinction between Munaf and the other detainee — Omar — relied upon by the D.C. Circuit was Munaf’s conviction by the CCC-I… the lower courts concluded that, where the U.S. citizen-detainee had not been tried and convicted (Omar), there was jurisdiction; where he had, there wasn’t (Munaf).

If Munaf’s conviction has now been reversed, that has the potential to change the whole complexion of the two cases; now, both present a challenge to “pure” executive detention, without the wrinkle added by Munaf’s conviction (subsequent to the filing of his habeas petition). Indeed, Munaf’s almost becomes the stronger case, since his, unlike Omar’s, is not in the posture of a grant of a preliminary injunction…

How will the government respond? Will the Supreme Court now just decide Omar, and vacate and remand Munaf for further proceedings not inconsistent therewith?

One thing is for sure: If this all pans out, the reversal of Munaf’s conviction serves to reinforce the deep flaws in his trial in the first place, and the reason why federal judicial review of his detention via habeas was—and continues to be—so critical in his case.

The University of Chicago Law School Faculty Blog: Constitutional Vision The current Supreme Court is not “balanced” in any meaningful sense of that term. It is, in fact, an extremely conservative Court - more conservative than any group of nine Justices who have sat together in living memory. Here are some ways of testing this proposition:

• Seven of the current nine Justices were appointed by Republican presidents.
• Twelve of the fourteen most recent Supreme Court appointments have been made by Republican presidents.
• Four of the current Justices are more conservative than any other Justice who has served on the Court in living memory.
• The so-called “swing vote” on the Court has moved to the right every single time it has shifted over the past forty years, from Stewart to Powell to O’Connor to Kennedy.
• As Justice Stevens recently observed, every Justice who has been appointed in the past forty years was more conservative that the Justice he or she replaced.
• If we regard Warren, Douglas, Brennan, and Marshall as the model of a “liberal” Justice, then there is no one within even hailing distance of a “liberal” Justice on the current Supreme Court.

In fact, the current Court consists of five conservative Justices, four of whom are very conservative, and four moderate Justices, one of whom, Ginsburg, is moderately liberal. As Justice Stevens recently observed, it is only the presence of so many very conservative Justices that makes the moderate Justices appear liberal. But this is merely an illusion.

My own views are probably somewhere between Justice Stevens’s and Justice Brennan’s, but whatever your views, this must surely be recognized as a factually accurate description of the current Supreme Court.

By the way, I do recommend the entire essay — that was just the warm-up.

From the front page of the New York Times: “Investors’ Suits Face Higher Bar, Supreme Court Rules.”

Issued yesterday, the Court’s majority opinion in the Tellabs case starts from the proposition that plaintiffs bringing securities fraud suits must allege (in their initial complaints — in advance of discovery) facts in sufficient detail to show statements attributable to defendants to be false either because of affirmative misrepresentations or because of notable omissions — and also facts suggesting defendants knew the statements were false (the so-called scienter requirement). There’s nothing new in this. But the majority also held (this was new) that, to be well-pled, facts regarding scienter, more or less like facts regarding falsity, must appear from the allegations to suggest that inferences of scienter are not just plausible or reasonable — but rather cogent, at least as compelling as any opposing suggestion, given the alleged facts, that there was no knowledge of falsity on the part of defendants.

Too complicated, too boring: who cares?

Justice Ginsburg wrote the majority opinion. Her definition of “strong inference” was more rigorous than the one deployed by the court below — a requirement only that plaintiffs allege facts supporting a reasonable inference of knowledge of falsity. But other courts had opted for even more demanding rules than Ginsburg’s — for example, that the inference of knowledge of falsity be the “most plausible” suggested by the facts alleged. Whether Ginsburg set a “higher bar” depends, therefore, on which of the conflicting lower court decisions you treat as the point of departure. Notably, Justice Scalia would have opted for a “more plausible” test, and Justice Alito agreed with Scalia, thinking that “more plausible” fits better with tests that would be applied later in the course of a lawsuit (if plaintiffs passed the pleading test). Justice Stevens, to be sure, dissented, and proposed borrowing the “probable cause” test from criminal law, thus excluding any consideration of competing inferences.

Maybe Stevens proposed a test more pro-plaintiff than Ginsburg’s. (Do we really know what probable cause means? Isn’t criminal procedure too different in its underlying preoccupations to provide a useful model?) It is clear that Ginsburg meant to reject Scalia’s formula (cheerfully needling him in the course of her opinion) and that she thought that Alito had no comprehension of how civil procedure works (a point made rather sternly).

But that’s not what’s most important here. How are plaintiffs or their lawyers supposed to find out facts they can plead in advance of discovery? This is a standard problem in corporate law generally — so-called derivative suits require shareholders to plead with particularity too. And the Delaware courts — the most important corporate law courts — treat no access to discovery as no problem: “use the tools at hand,” they say. Shareholders, it turns out, have state law rights (often) to obtain information about corporate decisonmaking independently of litigation. There are complications, of course: but why can’t these state law rights be used to get information for purposes of federal suits? Even if that won’t work, if plainitffs have facts available to them showing that representations were false, and if the facts can be shown to have been available before matters came to a head, doesn’t that suggest, maybe, that defendants may have (or might cogently be supposed to have) known of those facts too? Justice Ginsburge says that what’s “cogent” isn’t a matter of any particular smoking gun document, or even whether or not defendant had an obvious financial reason to withhold the truth. The inquiry, she insists, is “holistic.” Plainly, she leaves lots of room within which smart lawyers might work (that was Justice Alito’s main worry, it appears).

You don’t have to be interested in corporate law to think that this is important. In constitutional law, in equal protection cases, plainttifs must allege and prove discriminatory purpose. When the Supreme Court discovered this requirement in the 1970s, the initial reaction of many was that the Court had just killed off equal protection litigation. Not so: such suits are harder, but there’s plently of leeway for circumstantial inference, precisely after the fashion of the securities litigaiton Justice Ginsburg is discussing (interestingly, the scienter requirement was discovered by the Supreme Court at just about the same time).

Consider this possibility: Next week the Supreme Court decides the Seattle and Louisville school desegration cases against plaintiffs. School systems can no longer include race as an explicit factor in pupil assignment formulas. But school systems suspect, and likely will know for sure within a year, that using parental choice formulas without including a racial preference leads to racially segregated schools as a matter of fact. Would this be purposeful discrimination? How plain is this likelihood? What other reasons would school systems have to opt for parental choice unmodified? What if there ways to assign students that reduced segregation in fact — say redrawn districts or efforts to achieve economic diversity within schools — that were also practical? What would we make of parental choice then? Notice that these questions are just versions of the questions that Justice Ginsberg thinks are pertinent to the holisitic inquiry show wants to see in cases like Tellabs. Notice, therefore, that within the terms of her approach, the Seattle and Louisville decisions — if they come out the way Supreme Court sportswriters are predicting — may just open the way for new lawsuits in which plaintiffs may in fact be better positioned (if we know anything, we know that defending affirmative action in courts these days is not easy).

Who knows, though, what the Court will do next week. Stay tuned.

Truly a dead voice from the past.

And as Faulkner said, “The past is never dead. It’s not even past.”

[I’m in Italy until late Wednesday, so I queued up a few posts to cover while I’m away. This is one of them.]

The Harold Koh I knew was a pretty cautious and conservative guy. He generally took the conservative view in his national security law class, and tended to praise the people who expressed right-wing views (e.g. on judicial inability to interfere with the executive), much more than the left. If he harbored many views even a hair to the left of center, he kept them well hidden while tearing into the paper of mine he supervised. I admired him as a serious, disciplined scholar, and have tried to model one or two of my habits on what I saw of his.

Watching him from a distance, it has seemed that he has gradually become a bit more liberal politically as the country has been in the grip of a kleptocratic gang masquerading as conservatives, and has been particularly forceful on traditional issues such as being against torture and for decency. Really radical stuff. And he’s certainly been a tremendous Dean for Yale Law School.

Thus it’s shocking to learn about The Scary Prospect of Harold Koh as Potential SCOTUS Nominee from none less than ProfessorBainbridge.com®.

“There can be no doubt,” writes ProfessorBainbridge.com®, “but that Koh would be a liberal activist of a stripe we haven’t seen since Brennan and Marshall. The personal policy preferences of elite left-liberal salons would rule, rather than the rule of law.”

Now, I’m as unwilling as the next guy to have the country run by any salon, even SALON®. But really, Harold Koh as a wild liberal activist? I don’t think so. Much as I like him.

Scalia addresses wild-turkey hunters.

Scalia addresses wild-turkey hunters.

Yes, it's real.

(Actually, there's nothing necesarily wrong with a Justice addressing "the nonprofit turkey federation" which "is dedicated to conserving wild turkeys and preserving hunting traditions." But it's still a funy headline.)

At the historic swearing-in of John Roberts as the 17th chief justice of the United States last September, every member of the Supreme Court, except Antonin Scalia, was in attendance. ABC News has learned that Scalia instead was on the tennis court at one of the country's top resorts, the Ritz-Carlton hotel in Bachelor Gulch, Colo., during a trip to a legal seminar sponsored by the Federalist Society.

...

"I was out of town with a commitment that I could not break, and that's what the public information office told you," he said.

It "doesn't matter what it was. It was a commitment that I couldn't break," Scalia continued when questioned further.

According to the event's invitation, obtained by ABC News, the Federalist Society promised members who attended the seminar an exclusive and "rare opportunity to spend time, both socially and intellectually" with Scalia.

Update: Then again, maybe it's not a duck?

Judge Alito is a smart, experienced, and knowledgeable jurist. I have no doubt of his legal ability. I do not share either his judicial philosophy (apparently a mixture of quasi-originalism and social conservatism) or his views about many issues likely to come before the Supreme Court (ranging from the right to privacy to federalism). In such circumstances, I ordinarily would support his confirmation. On balance, the Senate should give more weight to excellence than judicial philosophy, and that is why I endorsed the confirmation of John Roberts.

...

Whatever else Judge Alito may or may not have made clear about his views on such issues as abortion, federalism, and religious freedom, he has certainly made clear that he has no interest in restraining the acts of this commander-in-chief. That, in my judgment, poses a serious threat to the nation, and is a more than adequate reason for the Senate - Republicans and Democrats alike - to deny his confirmation to the Supreme Court of the United States.

Tell me again that this is a done deal?

And Jon Stuart asked him about Weiner v. US (!) I actually teach that case....