Who Knows?

I had planned for this column to appear as my last month’s September column. The only problem is I missed my self-imposed deadline. And this, in turn, requires a slightly different approach to my subject. A few months ago, I had the privilege of attending a symposium (sounds too intimidating) – how about a discussion between two distinguished constitutional scholars. Professors Adam Winkler, UCLA School of Law, and John Yoo, UC Berkeley School of Law, discussed their perspectives concerning the past term of the U.S. Supreme Court and what this augurs for the now new term. Their thought-provoking analysis was moderated by preeminent Superior Court Judge Mark Epstein (preeminent better than eminent). Most readers are familiar with the works of Winkler and Yoo. (Arrangement of names has nothing to do with favoritism. Winkler and Yoo more rhythmic than Yoo and Winkler.) To recite even snippets of their respective curriculum vitae would fill this column. Their books and articles challenge us to ponder and question. Question what? That I leave to you, dear reader. Just hope it isn’t, “What am I doing in the legal profession?” A good portion of their discussion was devoted to speculation concerning what the high court will decide before the national election. This took place at the Stanley Mosk Courthouse in Los Angeles. Digression #1. Columnist’s self-involved note that has nothing to do with the remainder of this column. Would have worked better had I written this column more than a month earlier, so that it could have been published the day after Labor Day. Stanley Mosk administered the oath of office to me, an officious way of saying, swore me in, as a judge of the Los Angeles Municipal Court on Labor Day, 44 years ago. (Yawn.) The municipal court no longer exists. Please note this digression does not appear in a footnote. Perhaps it should have, but I left it in the body of this column to segue to another annoying digression. Digression #2. Footnotes. They should be used sparingly in judicial opinions and almost never in columns. For the sake of comity, here I omit from this admonition law review articles. I have omitted detailed analyses of Supreme Court opinions referenced in the discussion. My reason? To write about them, one must understand them. I recall a journalist referring to the writing of a particular Supreme Court opinion as “impenetrable prose.” And there is another reason I eschew this onerous task: too many concurring and dissenting opinions… and … too many footnotes. Because Winkler and Yoo were so open and candid, I decided not to quote them directly. What follows is simply my gloss on their perspectives. This approach benefits them in the event subpoenas are issued. Better I appear at a hearing than they. I am older. See digression #1. An obvious principle one draws from any discussion about the U.S. Supreme court is the one we all know with certainty: certainty is not a staple of the law. The professors stressed that before the appointment of Justice Kavanaugh, the court shied away from deciding critical and controversial issues unless it had to. So why talk about what the court might do, much less write about it? Professor Yoo suggested it is like predicting the outcome of a baseball game. Point proven with the Dodgers’ fifth game. I think we do it because it’s fun to be terrified, or… hopeful. And fretting about and predicting the future are endemic to our species. Two important issues that were explored in the past term, however, are worth noting: stare decisis and administrative law. These issues, dare I say, are certain to be explored in the next term. Hope I haven’t lost any more readers. The justices had something to say about stare decisis when considering the double jeopardy clause in Gamble v. U.S., 139 S.Ct. 1960 (2019). (Whoops, just cited a case.) The high court did not overturn the longstanding dual-sovereignty doctrine. Defendant could be prosecuted for the same firearms violation under Alabama law and federal law. This was not considered the same offense even though the conduct is the same. The rationale to support this result is the dual-sovereignty doctrine. In an opinion by Justice Alito, the majority was reluctant to overturn 170 years of precedent. In a concurring opinion, Justice Thomas gave short shrift to precedent when reliance on it is demonstrably wrong. His solution is simply not to follow it. He has little use for the view expressed by Justice Breyer that we give consideration to precedent that is embedded in our national culture. Thomas argues if it is wrong, we overrule it. (Gamble, p. 1986.) When I think of Brown v. Board of Education, I see Justice Thomas’s point. He did, however, concur with the majority. There were two dissenters. Easy guess that Justice Breyer was not one of them. And easy guess about one dissenter in contradiction to my uncertainty principle, Justice Ginsburg. She agrees with Justice Thomas’s views about stare decisis, but rejects its application when it comes to double jeopardy. “Stare decisis is not an inexorable command,” citing Payne v. Tennessee, 501 U.S. 808. 828 (1991). Guess who wrote the other dissent? May I add the adjective “convincing” to “dissent”? Justice Gorsuch. But he is a likely ally of Justice Thomas in giving scant consideration to precedent when it is “troublesome.” In Franchise Tax Bd. v. Hyatt, 139 S.Ct. 1485 (2019), an opinion by Justice Thomas, the Supreme Court overruled Nevada v. Hall, 440 U.S. 410 (1979), and held that states retain their sovereign immunity from private suits brought in courts of other states. Apparently precedent was troublesome. On behalf of the dissenters, Justice Breyer argued, “The majority believes that Hall was wrongly decided. But ‘an argument that we got something wrong—even a good argument to that effect—cannot by itself justify scrapping settled precedent.’” (Franchise Tax Bd. v. Hyatt, p. 1505.) It was opined that if Justice Thomas has his way, precedents established in Gideon v. Wainwright, New York Times v. Sullivan, and Batson v. Kentucky, to name a few, would be overruled. See Thomas’s dissent in Flowers v. Mississippi, 139 S.Ct. 2228 (2019). And note majority decision written by Justice Kavanaugh. Another big issue on the horizon is to what extent the high court will curb the rise of the “administrative state.” How will the court deal with the so-called Chevron doctrine, Chevron U.S.A. Inc v. Natural Resources Defense Council, 468 U.S. 1227 (1984). Is it likely that federal courts will continue to be compelled to defer to federal administrative agencies’ interpretation of their own ambiguous rules? And there are those troubling gerrymandering and census population issues. So many questions. Do 5-4 decisions make the court seem political? Will Chief Justice Roberts secure allies in his apparent attempt to preserve the public’s perception of the court’s legitimacy and make it appear nonpartisan? Since the time of the bull session with Professors Winkler and Yoo, we now know the many issues the Supreme Court will hear this term. They include rights of gay and transgender employees in the workplace, DACA regulations, and abortion rights. Anyone certain about how these cases will be decided? I am chastened by game 5. “Go Dodgers” has a hollow ring. So does certainty. But one element of certainty occurred in the delightful exchange between Winkler and Yoo. Keep in mind that Professor Winkler is a frequent speaker on the Supreme Court at the progressive American Constitutional Society, and Professor Yoo speaks often before the conservative Federalist Society. Though at times each held opposing views, they took stock of the other’s perspective and often acknowledged the reasonableness of another point of view. This was all done with good humor, wit, and civility. Would like their talk to be required listening for Congress. Justice Gorsuch would approve. In his new book, “A Republic, If You Can Keep It,” he argues that civilization’s essential ingredients are “civics and civility.” Not so, argues Michael Hiltzik in an article in the Los Angeles Times last month titled “Gorsuch’s call for ‘civility’ is really a defense of privilege.” Hiltzik argues that civility is a way of keeping malcontents quiet. This appeal is “aimed at shutting down debate, not promoting it.” Hiltzik points out that equality, more than civility, is civilization’s essential ingredient. Sometimes the public is compelled to rise in fury. That may be a necessary last resort in extreme cases. But not when colleagues on a court, a legislature, or any deliberative body meets to discuss and resolve issues. I just hope that after conclusion of this Supreme Court term, I do not ask a question like the one on my mind this past week. How could they lose game 5?