COURTS AND SOCIAL CHANGE Fall 2011 – LSTU E-107 Dr. Akiba J. Covitz Associate Dean Harvard Law School CLASS 9 November 17, 2011

Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Mid-Terms Housekeeping

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 6 –Joel Grossman, “Selecting Justices” Courts say what the law is: juristrocracy Judicial selection is a rare interface of all the branches Bork confirmation hearings: –What do we know about Bork? –Marine –Original understanding –Judicial restraint –Neutral principles –Bork: “We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own.” –YLS and then SG –“Saturday Night Massacre” –Cox, Richardson, Ruckelshaus, Bork –DC Circuit –Reagan nominates The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 6 –Joel Grossman, “Selecting Justices” Bork confirmation hearings: –Ted Kennedy – – –Roe –Defeated on the floor –Resigns from DC Circuit Two Models of Judicial Selection 1) professional independent; non-British European; career track; 2) responsive-accountable-political model Ike and Earl Warren Rehnquist and Jackson (Brown memo) Catholic and Jewish Seats Geography The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 6 –Joel Grossman, “Selecting Justices” Where do justices go to law school? Waiting for the president to retire Previous judicial experience? (p. 162); Rehnquist; Kagan WOD.... Possible reforms? –Mandatory retirement age?; need to amend Con –Non-renewable fixed terms?; need amend –Make rules that apply to other judges apply to SCOTUS on disability; who would determine?; internally; really need amend –Shorter life expectancies at founding The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 7 –Judicial Federalism: State Courts in the Federal System People ignore state courts Backbone of system in terms of numbers of cases New data available How do state supreme courts resolve their cases? Kenneth Arrow: Voter’s Paradox; democratic decision-making processes cannot be both fair and rational de Tocqueville: instability of majoritarian institutions Much more frequent turnover on state supreme courts –Not a terminal job State courts essential to stability Remove some choices from majorities The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 8 –American Courts and Democracy: A Comparative Perspective PRESENTATION The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 9 –“Courts in American Popular Culture” PRESENTATION The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 10 –“What Americans Know About the Courts and Why It Matters” How distant SCOTUS nominations were from the people at founding (president – EC – Senate – State Legislatures) No direct connection to voters Robert Merhige: – 2005Feb19.htmlhttp:// 2005Feb19.html p. 270: Brown; public opinion serves as a democratic check on the possible political excesses of the court; can’t put rulings directly into effect; know they need elected branches to put things into effect Fearful of popular backlash; take it into account; Bush v. Gore; impact?; undermine legitimacy?; not really? The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 10 –“What Americans Know About the Courts and Why It Matters” –P. 274: SCOTUS as “schoolmaster”; –Civic education; –Justice O’Connor: –Opinion leader?; measured in polls?; instruct and sometimes persuade; backlash.... –Little doubt that judicial decisions frame how Americans think about various political issues –Provide structure to policy alternatives –Access?; The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 11 –“The Impact of Courts on American Life” Courts are everywhere In culture; lots of TV shows; Language of rights everywhere in US Political questions become judicial questions, since early years; de Q Nearly 100 million cases per year P. 285; ordinary lumber case; not implemented; common Prisons Lack of diversity among judges Impact of malpractice suits on everyone Impact of adversarial system McDonalds Coffee Case –Hundreds of complaints; too hot to drink; hotter than industry standard – by 20 degrees; –Not really $2.7 million The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 11 –“The Impact of Courts on American Life” Cigarette litigation Has reduced percentage of smokers (p. 297) Constitutional decisions.... Strengthen (access to those who would otherwise not) or weaken (laziness; taking our important decisions away) democracy? Brown; changed nothing –But focuses exclusively on implementation Symbolic effects?; Rosenberg says not important because you cannot measure them The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 12 –“Judicial Activism and American Democracy” We rely on our courts more than any other country; Political ?s become legal ?s Int’l trend; meta-nat’l and int’l criminal courts; human rights revolution Variety of complaints about over-active courts Related to the expansion of gov’t and what we expect from gov’t Judges and courts are still fundamentally passive; The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 12 –“Judicial Activism and American Democracy” Con-al democracy; complicated; limits on popular authority; Also democracy reinforcing, allowing for full participation; rights revolution; rights revolution in 60s; Law is not mathematics; inevitable uncertainty; SCOTUS Rarely declares state and federal law un-conal (more often state); 5 federal and 12 state from ; GWB and 50 th anniversary of Brown and gay marriage; p. 319 Courts play a key role: allowing politicians to say what they want; get votes; Bork’s fears: moving from the rule of law to the rule of judges; New Right; The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 12 –“Judicial Activism and American Democracy” Libertarian view: activism to promote freedom is OK; framer’s intended maximum freedom; courts protect it Corporate attacks on activism; deep pockets; get sued; major business issue Post 9-11; imperial presidency v. imperial judiciary; prez wants courts out of it; Court says no; Rasul v. Bush (2004); does the judiciary have jurisdiction?; military/executive matter?; 6-3 (Scalia, Rehinquist, and Thomas in dissent) Glendon, rights v. community; 61 federal judges in 1869; now more than 1,500; state courts also growing; Growing caseloads The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 12 –“Judicial Activism and American Democracy” Rise of public interest litigation; Abe Chayes; shaping public policy; Ends with a consent decree or injunction; binding parties to a given action; Contempt power; fines; imprisonment; public officials; spend more; fix this Scalia: statutes spell out legal obligations and duties; clear But statutes are often not clear; not willing to spend what is necessary; need to keep laws vague to get them to pass; what then?; As gov’t grows, so must courts? European Court of Justice Int’l Court of Justice in the Hague US opts out; wants immunity deals for foreign aid Citing foreign law? The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 13 –“Courts and the Rights Revolution” Why social change groups are attracted to courts Jehovah’s Witnesses; during war time; no legislature would have helped them Every anti-lynching bill in 30s gets blocked; not pro-civil rights; anti-lynching; no other choice; starts a process Symbolic resonance Takes years for a case to make its way through; by 1954; hundreds of years of history leading to it; nearly a century since Civil War Wait for percolation; send it back on technicality Look for cert patterns Post Brown; money comes from liberal social change groups, like the Ford Foundation; this is one form of change the courts brought about Civil Rights Section of DOJ created in 1939; Tushnet mentioned on p. 355; Brown did not come from nowhere; NAACP cooperating with DOJ The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 13 –“Courts and the Rights Revolution” Int’l criticism; Cold War; you call this “freedom,” comrade? Truman’s committee on civil rights; To Secure These Rights; calls for Court-centered strategy; _files/frame.htmhttp://depts.washington.edu/civilr2/slides/segregation/segregation _files/frame.htm Shelly v. Kraemer; racially restrictive covenants; SG’s office gets actively involved; Shows that the street level protests followed Brown closely Brown did have an influence on sit-ins, bus boycotts, etc. The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 14 –“Discrimination Through Direct Democracy” Shows that these movements to get initiatives on the ballot; they don’t reflect the will of the people; special interests; The counter to the counter-majoritarian difficulty Carolene Products v. US (1938) –Footnote 4 ( –Justice Stone gives a “presumption of constitutionality” to economic regulation; SCOTUS would no longer substitute its views on economic policy for the views of Congress –But on certain types of legislation might not merit deference toward constitutional validity; prejudice against discrete and insular minorities Klarman on p. 378; Court generally cannot resolve a genuine divisive issue that splits the nation in half; The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 14 –“Discrimination Through Direct Democracy” Carolene Products: SCOTUS applied minimal scrutiny (rational basis review) to the economic regulation in this case, but proposed a new level of review for certain other types of cases Justice Stone: “there are reasons to apply a more exacting standard of judicial review in other types of cases, such as legislation aimed at discrete and insular minorities, who lack the normal protections of the political process, should be an exception to the presumption of constitutionality...” Footnote Four introduced the idea of “levels of judicial scrutiny” “Strict scrutiny” Seems bizarre for courts to decide the legitimacy of what a super-majority decides in “direct legislation” Special interests distort Courts can put things back in shape The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 15 –“From a Republic to a Democracy” Early folks, through end of 1800s; talked about a republic, not a democracy Lots of undemocratic elements in original Con. Add post-Civil War 16 th Income Taxes; th Amendment; Senate; th ; Liquor; th ; Women’s Right to Vote; th : Poll taxes prohibited; 1964 Incorporation of the Bill of Rights Guarantee Clause of Article IV Now everyone calls it a democracy The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 16 –“Courts and the Definitions of Defendants’ Rights” States lives in their own constitutional world until 1950s Pre-”incorporation” Egregious injustices in South Look to 14 th Amendment as a bridge Mapp v. Ohio (1962); warrant; “lookie here....” Gideon v. Wainwright (1962); 6 th Amend. applies to states in felony cases; Miranda v. Arizona (1966); opinion is legislative in nature; providing explicit guidance; a script; trying to police the police; Even with Reagan appointees; Warren court protections for criminal defendants do not disappear; diluted but not overturned; p. 449: engrained; originally seen as judicial aggressiveness; now part and parcel of what American believe a democracy should stand for; p. 454: Justices of one party go too far; can lose a presidential election; give the other party something to fight against; election of 1968; The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 17 –“Public Education, Democratic Life, and the American Courts” Pierce v. Society of Sisters (1925); trying to make Catholic schools, all private schools, illegal in Oregon; passes by 54% in 1920s; Court unanimously strikes it down; right to educational liberty p. 459: SCOTUS IS and must be anti-majoritarian; that’s the whole point sometimes p. 462: Brown; no explicit federal right to an education; where the state has seen fit to provide a public education, it then becomes a right, and must therefore be provided on equal terms; Backstory on Brown; much more of this in Klarman and Tushnet –Short on specifics; implementation The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 17 –“Public Education, Democratic Life, and the American Courts” Boston busing battles; Ray Flynn; “Soiling of Old Glory”; Ted Landsmark The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 17 –“Public Education, Democratic Life, and the American Courts” Boston busing battles; Ray Flynn –Federal judge, required any school with a student enrollment that was more than 50% nonwhite to be balanced according to race; –School Committee ignores; –Upheld on appeal to Burger SCOTUS –Retaliation –Judge Garrity (Holy Cross; Army; HLS; US Attorney) makes himself a school principal –Don’t move to redress financial disparities in school districts (San Antonio v. Rodriguez,(1973)); poverty is not a suspect classification under the EPC The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 17 –“Public Education, Democratic Life, and the American Courts” Wisconsin v. Yoder (1972); halting education in the eighth grade for religious reasons does not keep someone from effectively participating in a democracy Courts have had massive impact in world of education over the past century The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 18 –“Property Rights and Democracy” Keen love of property in the US The view of many was: protect democracy through protecting property rights Fifth Amendment: –“.... nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Direct linkage in the text between property rights and other personal liberties Pendulum swings back to protect property rights in recent years; reflective of views on the appropriate role of government; CJ Rehnquist: property protections of Taking Clause of 5 th A. are not a “poor relation” to other parts of Bill of Rights The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 18 –“Property Rights and Democracy” John Adams quote (p. 490): “Property must be secured, or liberty cannot exist.” Northwest Ordinance of 1787 and the Contract Clause (Article I, section 10, clause 1). “ No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 18 –“Property Rights and Democracy” Eminent Domain –For public use –But by private companies? Ely is upset (p. 506) about the “Constitutional Revolution of 1937”; footnote 4... –Property rights given a lower level of protection than personal rights, such as freedom of speech and religion –Lower level of due process scrutiny –Economic regulations passed by gov’t deemed presumptively valid; only rational basis test, not strict scrutiny The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 19 –Our Old Friend, Baum, and His Lists.... Specialization, to a degree, in courts as life and law become more complex –More true on state level than on federal level –Patent cases now go to specialized federal court, Court of Appeals for Federal Circuit in 1982 Access –Ordinary people have little capacity to influence legislatures, presidents; but in courts.... –Brown v. Board (p. 526); road blocked in Congress, White House –Gideon v. Wainwright (1963) »Great in many ways, but very expensive for states »LSC; decreased support; sue business; gov’ts; The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Chapter 19 –Our Old Friend, Baum, and His Lists Access –Pro Se Alternatives Adhesive contracts ADR Election of judges Politics –Accountable but also worried about reaction; Korematsu (1944) –War on Terror Court reform? The Judicial Branch

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Overview – –Mike’s background: –Robert Jackson and Felix Frankfurter; conflicted – –Introduction: Before Brown, walls of segregation already beginning to crumble; lynchings on decrease; Should they have waited? Cold War Relative importance of legal and extralegal factors Moderate stance: judicial decisionmaking is a combination of legal and political factors Klarman

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz Overview –Arguing for a middle ground (pp. 6-7) –Have to look at direct and indirect effects Easily measureable change But also –Salience of an issue –Educating opinion –Motivating supporters –Energizing opponents Litigation itself (independent of court opinions) can also have effects –A form of social protest, like street demonstrations Klarman

Harvard LSTU E Fall '11 Class 9 - © Akiba J. Covitz For Next Class December 1: Assignments: 1)Finish Klarman (I know; long book) 2)Read Tushnet (yay, a shorter book!) 3)Watch football (American or non) A) And/or eat pie