It's that time of year: A Supreme Court conversation

Slate Magazine:
from: Dahlia Lithwick
to: Walter Dellinger
Are We All Legal Realists Now?

Dear Walter,

Welcome back to this, the best part of having the best job in the world. Can this possibly be our sixth year doing an end-of-the-Supreme-Court's-term analysis?...

Meanwhile, the Legal Commentariat's search for the One Big Theme for the 2006 term seems to have settled on this: The Roberts court is hopelessly split down purely ideological lines, and earlier promises of minimalism, restraint, and collegiality are pretty much down the toilet. ...So, is it true that the enduring lesson of the 2006 term is that, as Toobin suggests, "When it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices"? Are we all legal realists now?
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Dear Dahlia...
My surprising conclusion ... was that it actually takes only minutes, not weeks, to master the essence of all American constitutional law. So as background to this year's discussion of this term's cases, and for the benefit of those busy readers who would like to be constitutional scholars but have only a few minutes to spare, I am delighted to provide "Professor Dellinger's Unpublished Short Course in Constitutional Law."

Constitutional law: the five-minute crash course [reduced to three to limit my potential liability for copyright infringement]

The basic rule of American constitutionalism is this: Before the government can forbid you from doing anything, it has to provide a reason. "Because we say so" does not count as a reason. To limit ordinary liberties (like selling eyeglasses), most any reason is good enough. To restrict fundamental liberties (like using birth control while having sex), however, the government must have a really important reason. (Getting to decide which liberties are "fundamental" is one of the cooler parts of being a justice.) Under the equal protection clause, even if the government has a plausible reason for putting a burden on you, it also has to explain why it treats other people better. If the justices suspect that the government may simply dislike people like you, they will demand an especially convincing explanation for the different treatment. ...

Establishment of religion is really simple: government prayer, bad; private prayer, good. (The only hard cases come when a citizen uses government property or public funds for religious purposes, and the facts make it difficult to tell whether it's the government or the private citizen actually making the religious choice.) As for speech, you can generally say whatever you want, but not necessarily where, when, or how you want. It's also OK for the government to regulate "expressive conduct," as long as the government is going after the "conduct" part and not the "expressive" part. Also, you have no right to dance naked unless you are a really, really good dancer, in which case it becomes art. As for the First Amendment's so-called "reporter's privilege" to protect confidential sources, you can skip that—it's taught with reverence in journalism schools, but judges never heard of it. ...

Congress has the power to ban anything from crossing a state line for any reason. And Congress can regulate any activity that's economic even if it's wholly within one state. But if it's not economic, and it doesn't cross state lines, then Congress cannot regulate it—unless five justices think the regulation in question is a really, really good one. ...

Finally, one needs to understand judicial restraint, the doctrine that a judge should avoid "legislating from the bench" and should instead strictly apply the text of the Constitution "exactly as written." This approach is very appealing to those who have never read the Constitution. But see, e.g., the 14th Amendment, which requires judges to protect (without any further elaboration) "privileges or immunities of citizenship" and "liberty" and "equal protection"—phrases so open-textured that they make the "apply exactly as written" mandate somewhat unhelpful. ...

The thing is, this really isn't as funny, at least to this law professor, as you might think. After Bush v. Gore, and the resulting Court appointments (elections do matter, at least when the Court lets the votes be counted), it's increasingly hard to pretend (or to try to teach) that there's much more to it than counting (white, male, Roman Catholic) noses--noble though they may be. Shabbat shalom.