Order in the Court

So I have taken a hiatus from the blog. As I write this, I feel somewhat like Ignatius Reilly in invoking his "Dear Reader" at the start of his self-serving journal entries. Toole's character, however, interacts with no one in a "normal" way. In spite of my admittedly sub-par social skills, I like to think that I can turn it on when I want to. We'll see.

Anyway, I came across this article a while ago. In it, some Charles Blow (never heard of him before; if you determine I should have and, thus, I'm an intellectual reprobate, quit reading), suggested that the Supreme Court requires more diversity. This suggestion naturally raises the question as to whether diversity is normatively good for the Court. As an addled 2L, I would suggest it is.

First, anytime you have opposition, it sharpens the debate. Thus, while I revel in every Scalia dissent I read, I revel more in a Scalia concurrence, where he spells out the reasons the Court should adopt his reasoning in the case and lays out the points of contention he has with the majority (and dissenting) opinion. Scalia plays almost a "rogue" on the Court: he does not settle. He holsters his originalist guns, and he sticks to them. AND, when a member of the Court challenges him, Scalia frequently writes an opinion detailing his opponent's contentions and their fallacies. And so while one may argue that Scalia misinterprets the Constitution, one cannot argue that Scalia does not at least dig in and give his most artful defense on his point.

And so I think a diversity of opinion on the Court is good. Truly reasonable, wise jurists should (at least theoretically) yield to a more persuasive argument. And therein lies the problem. Any student of constitutional law should cuss the Warren court for making their lives so unbearable: they stretched the text of the Constitution to its absolute limit, and created constitutional doctrine tethered flimsily, if at all, to to precedent. That said -- the Warren court did yield to a persuasive argument. Brown v. Board, for one, guaranteed equal protection. But the Court should have overruled the Slaughterhouse Cases right then and there instead of relying on social science. Because Earl Warren wanted a unanimous opinion, he had to water it down, and, though he reached the correct conclusion, he relied on little precedent and poor legal reasoning. Outstanding, correct result. I wish he would have said, though, "We have had it wrong."

My good friend Madison Perry posted this article on Volokh's blog recently to mock the same effort, and, while I laughed, I could not help but ask this question: "How, as a country, could we get the diversity on the Court that we need?" At the outset, I must maintain this point: the Court needs a diversity of opinion. And I think it needs it for the reasons I elicited above.

Now, we come to a vote on Elena Kagan. I am a dyed-in-the-wool conservative. I think President (not "Mister," as NPR, to my considerable annoyance, insists on titling every president they ever mention) Obama has chosen an incredibly perceptive thinker who has a proven track record of insisting on freedom of thought in academia (read "she pushed for a faculty that wasn't decidedly liberal"). It annoys me that she denied military recruiters access to Harvard's career services office. In my mind, that is like denying the DOJ access to students because you disagree with a statute under which it might prosecute. It is just silly to disallow a person from interviewing because they say "Hey -- we don't discuss sexuality at work." The policy, at its core, may actually wiser than those of most work-places. The fact that Kagan thinks that unwise mitigates her judgment in my mind.

That said, Supreme Court justices have policy disagreements. That is a fact. Kagan will vote with the liberal bloc of the Court -- that's no surprise. But I think, at the end of the day, that she will bolster whatever center the Court still may occupy.