Judging the Justices: The Changing Public Perception of

the U.S. Supreme Court

BP: Producing Energy and Litigation All Over the World . . .

The Real Housewives of Downton Abbey

SESAME STREET: OSCAR RECYCLES!

MACBETHby

William Shakespearea contemporary re-telling featuring

Kim Kardashian as Lady Macbeth

Berkeley’s Beat: An Evening with the U.S. Supreme Court

featuring

Dr. Horace Berkeley, Ph.D., J.D.

Ruth Bader Ginsburg

“It is emphatically the province and duty of the judicial department to say what the law is.” ~Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

“The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable, that it does not.” ~McCulloch v. Maryland, 4 Wheat. 316 (1819)

“The Court's authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.”

~Baker v. Carr, 369 U.S. 186, 267 (1962) (Frankfurter, J., dissenting)

“Attitudinal Model”

Well-recognized behavioral theory of judicial decision-making that postulates Justices make decisions based on their own ideological leanings.

Res Ipsa Musica, Vol. 1 & 2

A two-CD collection of hit songs about the U.S. Supreme Court

Absolutely FREE (with your $120 pledge, that is)

“Certiorari”

Judgment day, hopin’ they’ll vote my way.Filing papers so they’ll hear my plea—

In the highest court I’ll be, if they grant me certiorari!

Fret away, waiting for “yea” or “nay.” Pins and needles ‘till their votes I see—

In the highest court I’ll be, if they grant me certiorari!

“The Law”

Some say law, it is a myst’ry, confounding all who seek~

Some say law, it is mistress, who leaves you spent and weak~

Some say law’s a raging torrent that strands you up the creek~

But I say law, it is a “Justice,” whose virtues we bespeak.

“House of Our Highest Court”

There is a house on old First StreetThat holds our highest Court~And it’s been the bane of many a poor soulWho’s sought their last resort.

The third branch of the gov’mentOnce thought the most benignBut ask today of those you meet,That Court they might malign.

Should the people’s mood affect your task,Or must you close your ears?Do you vote your mind, as once designedAnd disregard their sneers?

[Oh] the mob can be so fickle The tide can turn so fastOne day you’re favorite of the threeThe next, you’re next-to-last.

One wonders if it mattersThe public’s shifting view?Through rise and fall, and falderal,They’ll do what they will do.

There is a house on old First StreetThat holds our highest CourtAnd it’s been the bane of many a poor soulWho’s sought their last resort.

Oliver Wendell Holmes, Jr.

BP: Producing Energy and Litigation All Over the World . . .

“But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”

~Lochner v. New York, 198 U.S. 45, 75-76 (1905) (Holmes, J., dissenting)

~Judiciary Act of 1925 Curtailed access to the Supreme Court and permitted an appeal to the Supreme Court as a matter of right only in limited circumstances

~Administration of Justice Act of 1988 Eliminated nearly all of the Supreme Court’s remaining mandatory appellate jurisdiction

Lack of deference to other branches of government

Results-oriented policymakingLack of respect for judicial

precedent (stare decisis)

Hallmarks of Judicial Activism:

Res Ipsa Musica, Vol. 1 & 2

A two-CD collection of hit songs about the U.S. Supreme Court

Absolutely FREE (with your $120 pledge, that is)

“Will You Vote With Me Tomorrow?”

Today you’re mine completelyYou lend support concretely!

Today our bloc is strong as it can be, [but]

Will you vote with me tomorrow?

“One Vote Closer to Five”

One vote closer to five, I’m movin’One vote closer to five.Sitting down here ‘round the conference tableOne vote closer to five.Waitin’ for some folks to jump on my wagonHopin’ that my crew can survive.Sitting down here ‘round the conference tableOne vote closer to five.

“My Way”

Though now, my time is pastStill I return to tell my story.How can this be? I do not know.But I’ll soak in this new-found glory.

I served for thirty yearsThe “Great Dissenter” in my heydayBut more, much more than that,I did it my way.

Regrets, I’ve had a few,Some more dissents, I might have written.I urged restraint, a noble goalAnd with free speech, I sure was smitten.

With Brandeis on my sideI often shaped the legal highway.But more, much more than that,I did it my way.

And now, the time has comeFor me to go back where I came fromThat lofty courtroom in the skyI will return to where I hail from.

Remember well my long careerMy writing skill I tried to parlayBut more, much more than thatI did it my way.Yes, it was my way.

Antonin Scalia

“I am unable to agree with the judgment of the majority of the court, and although I think it useless and undesirable, as a rule, to express dissent, I feel bound to do so in this case and to give my reasons for it.”

~Northern Sec. Co. v. United States, 193 U.S. 197, 364 (1904) (Holmes, J., dissenting)

“But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by every one within the United States.”

~Plessy v. Ferguson, 163 U.S. 537, 554-55 (1896) (Harlan, J., dissenting)

“ . . . nothing short of ludicrous.” ~Lee v. Weisman, 505 U.S. 577, 637 (1992) (Scalia, J., dissenting)

“ . . . neither passes the most gullible scrutiny.” ~Morgan v. Illinois, 504 U.S. 719, 748 (1992) (Scalia, J., dissenting)

“ . . . nothing short of preposterous.” ~Romer v. Evans, 517 U.S. 620, 652 (1996) (Scalia, J., dissenting)

“. . . the Court makes itself the obfuscator of last resort.” ~Michigan v. Bryant, 562 U.S. 344, 380 (2011) (Scalia, J., dissenting)

“ . . . one must grieve for the Constitution.” ~Morrison v. Olson, 487 U.S. 654, 726 (1988) (Scalia. J., dissenting)

“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” ~Obergefell v. Hodges, 135 S. Ct. 2584, 2630 n.22 (2015) (Scalia, J., dissenting)

“It is in fact comforting to witness the reality that he who lives by the ipse dixit dies by the ipse dixit.” ~Morrison v. Olson, 487 U.S. 654, 726 (1988) (Scalia, J., dissenting)

“ . . . narrow tailoring must refer not to the standards of Versace, but to those of Omar the tentmaker.” ~Hill v. Colorado, 530 U.S. 703, 749 (2000) (Scalia, J., dissenting)

Explanations and Caveats:

The Court now has the discretion to hear mostly the types of controversial cases that are likely to produce ideological splits

Earlier Courts, eager to establish legitimacy, valued consensus more than individual expression, and so dissent was discouraged

Close rulings are not always the product of the same voting coalitions

Deflategate: Sports Scandal or Constitutional Donnybrook?

Next time on Berkeley’s Beat . . .

SNOOT = Syntax Nudniks of Our Time

“The term I was raised with is 'SNOOT.' The word might be slightly self-mocking, but those other terms are outright dysphemisms. A SNOOT can be defined as somebody who knows what ‘dysphemism’ means and doesn't mind letting you know it. . . . A fellow SNOOT I know likes to say that listening to most people’s English feels like watching somebody use a Stradivarius to pound nails." ~David Foster Wallace, "Tense Present," Harper’s, Apr. 2001

Res Ipsa Musica, Vol. 1 & 2

A two-CD collection of hit songs about the U.S. Supreme Court

Absolutely FREE (with your $120 pledge, that is)

“Always Scalia to Me”

He can kill with a phrase, he can wound with a wordHe’ll skewer your reasoning, call it absurdAnd he’s often more cutting than others might be.He speaks his own truth, and that’s always Scalia to me.

He can marshal the Court to the view he’s embracingHe will muster a grin while your case he’s effacingAnd deep down you know it’s a fait accompliWith a style all his own, yes, that’s always Scalia to me.

Chorus: Ohhh . . . he picks just the right word, sometimes known just to himIn dissent he’s the guy.Ohhh . . . his allusions are grand, Foreign phrases command, to the liberals’ outcry.

[Oh] The Framers’ intent is a view he espouses.He strictly construes though the other side grouses.And he can’t be dissuaded, he’s firm as can be.Blame it all on the text, but that’s always Scalia to me.

Chorus: Ohhh . . . he picks just the right word, sometimes known just to himIn dissent he’s the guy.Ohhh . . . his allusions are grand, Foreign phrases command, to the liberals’ outcry.

And he’s frequently lone and then joined by a crew,He will do as he pleases, the rest he’ll eschew.And love him or hate him, I’m sure you’ll agree[Oh] you’ll never be bored, and he can’t be ignoredAnd that’s always Scalia to me.

THE END