by Dennis J. Hutchinson, David A. Strauss and Geoffrey R. Stone (eds). Chicago: University of Chicago Press, 2007. 438pp. Cloth. $60.00. ISBN: 9780226363257.
Reviewed by Eileen Braman, Department of Political Science, Indiana University. Email: ebraman [at] indiana.edu.
Unbeknownst to me when I took the assignment, being asked to review the annual volume of THE SUPREME COURT REVIEW is a bit like being asked to review the latest issue of THE AMERICAN POLITICAL SCIENCE REVIEW or JOURNAL OF POLITICS. The volume includes ten distinct articles that are not thematically related – except for the fact that they touch on issues related to the Court’s last term. Authors include notables like Cass R. Sunstein and Richard A. Posner; all but Keith E. Wittington – the sole political scientist in the group – have affiliations with one of four elite law schools [Chicago (4 authors), Virginia (3 authors), Duke and New York University]. So while the volume may not comprise the most representative sampling of academic commentary on the newly minted Roberts Court, it no doubt includes some of the major trendsetters in their respective fields. And that makes sense. Who else would be bold enough to comment on the most recent decisions of a new natural court? There is some risk involved in the interpretation and speculation inherent in the endeavor; readers want to know not only what the court did last term, but what it means in terms of future decision making directions. Addressing substantive concerns from free speech in the workplace, to how overlapping state and federal jurisdictions touch on enforcement of assisted suicide laws, the authors do their best to tell us what the court decided last term and where it is headed on some of the most important issues of the day.
The lead article by Sunstein, “Clear Statement Principles and National Security: Hamdan and Beyond,” illustrates that just figuring out what the court decided last term can pose a significant challenge. Indeed he writes of HAMDAN v. RUMSFELD (2006), “it is not easy to find an opinion, in the Court’s entire history, in which the justices divided on so many points; I herby nominate HAMDAN as the all-time champion on this count” (p.4). Anyone who has struggled through the eight separate opinions, touching on constitutional provisions, the Geneva Conventions and a veritable alphabet soup of United States statutory law, might be prone to agree. One of our most respected legal minds then proceeds to take fifty pages to wade through the separate opinions and explain what the court is doing regarding, arguably, the most important legal issue the justices faced last term.
Sunstein’s conclusion, introduced blissfully early in the piece, is that the Court’s approach represents a sort of “liberty promoting liberalism,” where the justices are willing to give the executive significant discretion in the interpretation of war powers explicitly [*84] extended in a “clear statement” by the national legislature, but are loath to find independent authority – especially to limit procedural protections available to detainees – in the absence of Congressional grants. Sunstein goes on to state that it is not all together clear what sort of “clear statement” will suffice after the opinion; he speculates on what the decision will mean for future litigation on warrantless wiretapping.
Sunstein is rather tentative – not only in his speculation about future litigation – but in his conclusions about the ultimate meaning of HAMDAN. This is not surprising given the nature of the decision; with eight separate opinions it is very hard to tell where the Court, as an entity, stands. HAMDAN is by no means unique in this respect. Lillian R. BeVier’s article “Full of Surprises and More to Come: Randall v. Sorrell, the First Amendment and Campaign Finance Regulation,” involves a 6:3 decision on campaign finance – another hotly contested issue these days – where the author comments on no less than five separate opinions. After reading this volume, with commentary on important cases likely to spawn future litigation, most with multiple opinions, one longs for the days of BROWN v. BOARD OF EDUCATION (1954). Perhaps a definitive statement of what the law/constitution requires is too much to ask from a highly divided court with a new chief justice, but then again, BROWN was issued in Warren’s first term. You would think that, if it was ever important for the court to come down with a clear statement of how they will adjudicate such issues, it would be in these cases. Alas, war powers and campaign finance are likely to be muddled areas of Supreme Court doctrine for the foreseeable future. This is, of course, good news for attorneys litigating in these areas but somewhat unfortunate, I think, for the rest of us.
Another article by Curtis A. Bradley, “The Federal Judicial Power and the International Legal Order,” touches on whether domestic remedies are available for violations of procedural protections due to foreign nationals charged with state and federal crimes under provisions of international agreements. The primary case involved, SANCHEZ- LLAMAS v. OREGON (2006), concerns Article 36 of the Vienna Conventions, providing that, when foreign nationals are arrested, their home states/consulates should be notified. Defendants sought suppression of evidence in state judicial proceedings where this requirement was not met. The case raises some interesting questions – what is the relation between domestic judicial authority embodied in Article III and international law? If there is no domestic remedy, what is there to ensure compliance with seemingly binding international obligations?
A majority of the court, via a decision by Justice Roberts, seems to prioritize traditional constitutional understandings of domestic criminal procedure over international enforceability. Bradley argues this is consistent with the Court’s approach in HAMDAN where the Court focused on domestic war powers (treaty obligations codified in Congressional directives) rather than the independent judicial enforcement of international commitments. He notes that the Court treated international law “seriously” in both cases. To no one’s surprise Justice Breyer wrote a dissent joined by [*85] Stevens, Souter and Ginsberg (in part). Commenting on the case, Bradley writes the majority’s conception of judicial power, “operates as both a limitation on the federal courts’ ability to participate in the international order and also a protection of the federal courts from that order” (p.67). Given the close split in the case and the ongoing debate about the role of international law in domestic forums, such decisions are certainly worthy of careful consideration.
Using traditional doctrinal analyses, several articles try to reconcile lines of Supreme Court doctrine over the past several years. Cynthia Estlund’s “Harmonizing Work and Citizenship: A Due Process Solution to a First Amendment Problem” grapples with a distinction drawn by the Court between “employee speech” and “citizen speech” in the application of whistleblower protections over the last several years. In the end she suggests the court might do better to analyze such cases under the rubric of due process, to avoid making difficult distinctions between “private/citizen speech” and “speech that is the job” (pp.155-172). “Apprendi’s Domain,” by Jonathan F. Mitchell, looks at the asymmetric relationship the Court has established between aggravating and mitigating factors in criminal sentencing. Specifically, in APPRENDI v. NEW JERSEY (2000) the Court said aggravating factors should be considered by the jury but mitigating factors need not be resolved by a jury. Looking at prior Supreme Court decisions on “elements” of criminal behavior and standards of proof, Mitchell traces the roots of the distinction concluding the Court’s path dependent logic on what needs to be proven beyond a reasonable doubt “should not similarly define the scope of the Sixth Amendment jury guarantee” (p.304).
There is a pair of pieces on state sovereign immunity. Ann Woolhandler ‘s “Interstate Sovereign Immunity” discusses whether states should be immune from suit in the courts of other states. Looking at the Framers’ intent, historical understandings of the Eleventh Amendment and potential implications of such liability, Woolhandler concludes the Court has incorrectly allowed such suits to proceed. In a similar vein, John Harrison’s “State Sovereign Immunity and Congress’s Enforcement Powers,” concludes that there is no private cause of action against states for violations of Section Five of the Fourteenth Amendment, contrary to what the Court announced in FITZPATRICK v. BITZER (1976). To bolster his point, Harrison similarly invokes Framers’ intent and historical understandings. He also argues that the underpinnings of more recent decisions on state sovereignty, including SEMINOLE TRIBE OF FLORIDA v. FLORIDA (1996) and ALDEN v. MAINE (1999) support this conclusion.
Jacob E. Gersen’s “Overlapping and Underlapping Jurisdiction in Administrative Law” may be of particular interest to political scientists. Gersen is primarily concerned with how shared responsibility for enforcement of statutory and administrative schemes should influence deference paid by courts to administrative determinations under CHEVRON v. NATURAL RESOURCES DEFENSE COUNCIL (1984). He starts off with a typology of shared and exclusive enforcement schemes using simple set theory; in doing so he sets forth specific motives [*86] legislatures may have for introducing enforcement schemes with authority split among different agencies or levels of government. Finally he discusses the jurisprudential implications of shared enforcement schemes for administrative deference. The case he chooses to explore from last term, GONZALES v. OREGON (2006), involves state versus federal interests in the enforcement of Oregon’s assisted suicide law. There are also multiple federal agencies, including the Department of Justice and Food and Drug Administration mentioned in Gersen’s analysis.
Finally, there are two articles in the volume that do not really address the Court’s jurisprudence, per se. One is a piece by Richard A. Posner, “A Note on Rumsfeld v Fair and the Legal Academy.” Judge Posner calls out legal academia, particularly professors at elite law schools for, among other things, failing to write their own amicus brief in the case involving whether representatives from the military should be allowed to participate in law school recruitment activities. He also characterizes one of the primary arguments made by the legal academy as “frivolous,” based on, what Posner considers to be a narrow ideological vantage point. The article stands out in the volume for its tone and subject matter. I leave it to those interested to read the piece and draw their own conclusions about the correctness of Posner’s assertions.
The last article in the volume is Keith E. Whittington’s “Presidents, Senates and Failed Supreme Court Nominations.” Wittington looks at many of the usual suspects in predicting Supreme Court nomination failure/success, including unified vs. divided government and whether the president was in his last term during the appointment. The article is unique because he takes a rather expansive view of what comprises a “failed” nomination, including those submitted and then withdrawn by the president (as in the recent case of Harriet Miers) and those voted “permanently postponed” by the Senate (p.410). This provides Whittington with an n of 27 “failed” nominations. With rich historical analyses more palatable to legal academics than multiple regression techniques, Whittington concludes that failed nominations were more common in the nineteenth century; he notes the interaction between type of government and lame duck presidents as especially relevant during this period. Whittington also argues that the effect of divided government has changed in recent decades. Looking particularly at the experiences of Nixon and Reagan, he writes, “[s]omewhat surprisingly, divided government had historically worked to free presidents, at least until late in their terms, to choose as they would from the ranks of their own partisans. The modern Senate has instead shrunk the range of presidential discretion during divided government, attempting to cut off the farther ideological wing of the president’s coalition from the available pool of Supreme Court nominees” (p.435).
Perhaps the most elusive question in the volume is what lasting effect the most recent successful nominations to the Court will have. Except in the cases where justices Roberts and Alito did not participate, the authors, almost without exception, try to offer some insights as to their jurisprudential approach in the various legal areas covered in the [*87] volume. Long story short – it is too early to tell where the new justices stand on the spectrum of cases related to issues decided by the Court last term. Still, I think, we can expect similar, perhaps even contradictory, speculations after the Court’s current term. With additional data, compiled over a number of years, we are likely to come closer to the truth. Only then will we be able to say which of these current authors were correct. By then, however, these decisions may be characterized as yesterday’s news; only time will tell if they are truly pivotal or are destined to be mentioned in a footnote of some future volume of the SUPRME COURT REVIEW.
ALDEN v. MAINE, 527 US 706 (1999).
APPRENDI v. NEW JERSEY, 530 US 466 (2000).
BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).
CHEVRON v. NATURAL RESOURCES DEFENSE COUNCIL, 467 US 837 (1984).
FITZPATRICK v. BITZER, 527 US 455 (1976).
GONZALES v. OREGON, 546 US 243 (2006).
HAMDAN v RUMSFELD, 126 S Ct 2749 (2006).
RANDALL v SORRELL, 126 S Ct 2479 (2006).
RUMSFELD v FAIR, 547 US 47 (2006).
SANCHEZ- LLAMAS v OREGON, 126 S Ct 2669 (2006).
SEMINOLE TRIBE OF FLORIDA v. FLORIDA, 517 US 44 (1996).
© Copyright 2008 by the author, Eileen Braman.