LAURENCE TRIBE'S MORAL COMPASS FOR JUSTICE
by Sheila Moldover
For Justice to thrive, citizens must be "a moral compass"
Laurence Tribe has been arguing cases before the U.S. Supreme Court for 24 years and teaching at Harvard Law School for close to 50 years. Last month, he brought his knowledge, wit and wisdom to WDC, telling the assembled crowd, to laughter, "Even Justice Scalia occasionally cites my stuff."
Tribe, author of 115 books and articles and well-known as a leading liberal scholar of Constitutional Law, came to talk about his newest book, Uncertain Justice: The Roberts Court and the Constitution. The book Scalia cited, American Constitutional Law, is one written by Tribe decades ago, but remains in wide use.
Uncertain Justice arose out of Tribe's desire to explain the Supreme Court in a way that is "widely accessible but in no way oversimplified" as well as "fun to read" for what Tribe called "an educated population."
Don't stereotype the Supreme Court
Tribe said that many books describe the Court as the "stereotypical five conservative activists vs. four moderate liberals," but Uncertain Justice does not. The book seeks to look at "more complex themes than a right to left split," adding, "Stereotypes turn out to be largely useless in determining how justices will vote."
The justices "are not cardboard caricatures. They come with ideas, they are not blank slates," he said. Tribe said "yes," in response to a question about whether empathy makes a difference on the Court, as President Obama suggested when nominating Justice Sonia Sotomayor.
"We don't have nine computers up there, we have nine people," he said. "And they are not diverse enough. They are all from Harvard and Yale. Surely there should be someone from the University of Maryland or California. There are not enough women. Most of these people have never been trial lawyers. They think that trial lawyers are greedy. That's why they make it so hard for people to sue corporations and the police. Justices get their view of the world from their clerks and from the other justices. Thurgood Marshall made all the difference in the world, and O'Connor opened their eyes about women."
How Roberts thinks is key
Citing three recent Court cases and how Chief Justice Roberts voted -
- McCutcheon vs. FEC (campaign finance);
- the Agency for International Development vs. Alliance for Open Society (the HIV/ AIDs funding case in which the Court ruled that the Federal government could not require AIDs-fighting groups that took federal money to sign a pledge that they opposed prostitution and sex trafficking in order to get that money);
- the Obamacare decisions
Tribe said that in these cases the stereotypical division between conservative vs. liberal justices did not hold. The outcome, he said, was predictable by looking at how Roberts thinks.
"There is reasoning that underlies the rulings in these supposedly unrelated matters," he said.
In McCutcheon vs. FCC, said Tribe, the Court concluded that federal limitations on campaign spending involved "a serious burden on First Amendment rights of [very wealthy] donors to not to have to make a choice of where to spend their money." The 5-4 decision had all five "conservative" justices in the majority.
The same reasoning on Roberts' part - that you cannot force people and corporations who take federal money to give up their First Amendment rights - applied in the HIV case, said Tribe. In that 6-2 ruling (Kagan recused herself), Roberts joined with Kennedy and the four "liberal" justices.
In the Obamacare decisions, Roberts was part of both the conservative and liberal majorities, Tribe said. He upheld the Constitutionality of the law with the liberals, saying that it was within the Federal government's taxing authority, but stood with the conservatives on the Medicaid expansion portion of the law. "It was the same point," said Tribe. "You cannot force states to take the Medicaid expansion and say if they don't they will lose federal money."
Tribe noted that he had predicted this in advance of the Court's Obamacare decisions.
Recent Court decision "sadly misguided"
The voting rights case (Shelby County vs. Holder) in which the Court struck down federal pre-clearance for changes in voting laws in states that had a history of civil rights discrimination showed the Court was "reasoning fallaciously" in its claim that "Congress had violated a new Constitutional right that all states be treated equally," Tribe said.
He lambasted the "equally insensitive" and "sadly misguided" 5-4 decision in Town of Greece vs. Galloway to "uphold opening public town meetings with Christian prayer," adding, "Why we would want to get rid of separation of Church and State is beyond me."
"We do have a terrible crisis that so many people treat voting as a waste of time. It's a tragedy," Tribe said. He noted Justice O'Connor's recent effort to improve civic engagement, but said of it, "It's kind of boring."
"It's hard to get people excited about politics when they are so disillusioned with the elites, with the press. And some of the disillusionment comes from mega-billionaires pouring money into it. People ask - what difference do I make?"
Book's readers are to furnish a "moral compass"
"Justice is a house of many mansions," Tribe said. "It's not just in the high-voltage issues but in every lawyer's actions and every citizen's actions. We need a moral compass and a good map of the legal icebergs to avoid. We are counting on you, as our readers, to furnish the moral compass. The book is the good map."
Q & A
1) How accurate is the Scott Turow quote that Uncertain Justice documents a "wholesale revision of the Constitution"? "It's a little over the top," said Tribe, but blamed his publisher for wanting provocative book jacket blurbs. However, there have been some major changes in Constitutional interpretation under the Roberts court, Tribe said.
"The Roberts Court has engaged in massive overhaul, some of it good, most not." Four justices "think that the meaning of Brown v. the Board of Ed is that we should ignore race. And four justices think that's crazy. Justice Kennedy is right in the middle of that split. Four justices think that since the umbrella [of the Voting Rights Act] worked [to prevent discrimination in voting], you can throw it away."
2) The Citizens United decision. "When I first read it, my immediate reaction was that it was bad, but on further reflection, it's a decision that limits the power of the Federal government to "shut down free speech. And that's not a power we want to give the government," Tribe explained.
"The band-aid of campaign finance reform is not the way to solve the problem of inequality. I'd be worried about giving the government, any government, the power to limit what people can spend. I'm not willing to give away a part of the First Amendment," he stated, while not addressing the inequality of how campaigns are financed.
In Citizens United, the Court said that "money does not buy access," and stated that the problem of the appearance of unfair access could be solved by requiring disclosure of all donations. "The Court said 8 to 1 that disclosure will be perfectly Constitutional, but if Congress won't even pass that, they won't pass campaign finance reform."
Citizens United "overturns two centuries of history of what a corporation is." He suggests working to change each state's rules governing how corporations are chartered, agreeing with Maryland State Senator Jamie Raskin's proposed Maryland legislation to require a majority vote of shareholders before a corporation can make political expenditures.
3) Maryand v. King and privacy (a 2013 5-4 decision saying that taking a DNA swab when someone is arrested is not a violation of the Fourth Amendment (search and seizure) and is similar to fingerprinting and photographing as legitimate police procedure. In this decision, Scalia wrote a dissenting opinion which three liberal members, Ginsberg, Sotomayor and Kagan joined. "Sometimes there are unexpected coalitions," Tribe said. "Scalia tends to be very liberal with rights of privacy. He says that new technology should not leave you with less privacy than you had in 1791."
4) Could President Obama get a Supreme Court nominee confirmed? "No chance," said Tribe. "I think it's inconceivable that they could overcome a filibuster."
5) Bush v. Gore. "The second time it came to the Supreme Court, it was fixing a mess in Florida and was a happy coincidence that it offered Bush the victory," Tribe said. "When people are holding up ballots to look at chads - to me, that looked like democracy. To Scalia, it looked like chaos."
6) Access to justice. "The supposed right of everyone to have access to a lawyer is only possible if Public Defenders get more money or pro bono lawyers give more time. The average lawyer donates a half hour a week to doing pro bono work, and much of that is for people he knows," Tribe said. Citing a rise in deportation and child custody cases, as well as criminal cases that need access to low-cost legal services, Tribe said, "Courts are being starved. It's become even harder for make progress on access to justice. There is terrible damage to access to justice being done by the Roberts Court."