Prepared remarks: Colorado Bar Association – Constitutional Judging – SCOTUS Then and Now: SCOTUS’s 2024 Term (Dec. 4, 2024)

Thank you, Justice Hood, for inviting me to join this webinar to share my thoughts on the Supreme Court, reflecting on my experience as a law clerk, as an advocate before the Court, and more broadly on the state of the Court’s jurisprudence.  I will touch on the first two points and, in doing so, will set up a conversation on a critical question—“should the Supreme Court consider and reflect on the consequences of its decisions?”

To state my view up front, the answer is absolutely.  For many Americans, this is a debate that might surprise them—how can any responsible decisionmaker blind themselves to the consequences of their decisions?  For dedicated practitioners of the jurisprudence—the method of making judicial decisions—known as “originalism,” however, it is a point of pride that judges should blind themselves to the consequences of a particular interpretation of a constitutional provision.  On the originalist view, the only job of the judge is to interpret the Constitution according to what the drafters of the provision had in mind.

During the October 1995 Supreme Court term, I served as a law clerk for and learned from two tremendous jurists, Justices Byron White and Ruth Bader Ginsburg.  At that time, Justice White was retired, and only sat with one court of appeals, so most of my work was with Justice Ginsburg.  But I enjoyed the unique opportunity to be mentored by two remarkable lawyers and judges.  Both Justices came to the Court after careers as accomplished lawyers—Justice White here in Denver and then as the Deputy Attorney General under Bobby Kennedy at the U.S. Department of Justice; and Justice Ginsburg following a remarkable career litigating gender equality cases in the courts of appeals and the U.S. Supreme Court.  In fact, Justice Ginsburg’s first major victory in such a case came here in Denver at the Tenth Circuit, in a case profiled in the movie “On the Basis of Sex.”

For both Justices White and Ginsburg, serving as a judge meant paying careful attention to the facts of a particular case and recognizing the practical consequences of Supreme Court decisions.  In the case of Justice White, for example, he was prescient that the Supreme Court’s willingness to entertain First Amendment challenges against campaign finance regulations was a dangerous enterprise.[1]  He never lived to see Citizens United,[2] but Justice Ginsburg did.  She famously said that if she could reverse one case, she would reverse Citizens United.[3]  She did not live to see the Dobbs decision,[4] however, and, unfortunately, it gives Citizens United a run for the money on that front.

I am often asked about the perceived differences between Justice White, who dissented in Roe v. Wade and Justice Ginsburg, known for her advocacy of gender equality.  What I share is how much they both thought about not only about the consequences of Supreme Court decisions, but also on how they both reflected carefully on the relationship of Supreme Court decisions and the political process.  To that end, Justice White viewed the Court’s decision in Roe as an intrusion on the prerogative of the political branches whereas he viewed Griswold as a case where the national consensus justified Supreme Court intervention into the political process to protect a right to birth control.[5]  Justice Ginsburg also expressed some qualms about Roe—not as to its outcome, but as for the timing of the decision and how the Court was too quick to intervene to short circuit the political process.[6]  In another example of how Justice White viewed the role of the Supreme Court vis a vis the political process, he ultimately embraced the extension of the Miranda decision, once it was established as a settled precedent and relied upon decision, even though he originally dissented from it.[7]  Indeed, Justice Ginsburg remarked about Justice White, quoting from a memorial to him, that “no member of the Court during his tenure was more committed to the doctrine of stare decisis.”[8]

As I reflect on Justice White and Justice Ginsburg, I appreciate how they both took a very careful and reflective view of the role of a constitutional judge.  As Justice Ginsburg wrote about Justice White, in words that readily apply to her, he “constantly reminded the Court to consider the consequences and common sense of the legal rules it announced.”[9]  When Justice Stevens celebrated Justice White, he called out Justice White’s contribution to his majority opinion in the landmark Chevron case, recognizing his humility about the relevant expertise of the Supreme Court vis a vis administrative agencies.[10]  I have no doubt that both Justice White and Justice Ginsburg would be very concerned to see the Court turn its back on the Chevron decision, opening a Pandora’s box while pretending there is little there to see.[11]

The U.S. Supreme Court I saw up close in the mid-1990s is very different from the one we know today.[12]  At that time, there were three justices on the left—Justices Stevens, Ginsburg, and Breyer; three justices in the center—Justices O’Connor, Kennedy, and Souter; and three Justices on the right—Chief Justice Rehnquist, and Justices Scalia and Thomas.  That Court, because of its composition, did not have an ideological precommitment on key issues involving equality and abortion rights, to name two high profile constitutional issues.  Rather, those questions generated serious reflection and led to results in leading cases that reflected carefully on the impact of those affected by Supreme Court decisions.

I believe that the openness of that Court to dialogue, reflection, and debate on the outcome of key cases led to better outcomes.  Consider, for example, two cases the Court decided in the October 1995 Term—Romer v. Evans[13] and United States v. Virginia.[14]  The Romer case involved a challenge to Colorado Amendment 2, a ballot initiative adopted by the voters that prevented cities from extending civil rights protections to gay and lesbian citizens.  In that case, the Court held that the harm to gays and lesbians from a provision that uniquely and unfairly targeted them violated equal protection. United States v. Virginia involved a challenge to the Virginia Military Institute’s policy of excluding women.  In that case, the Court similarly held that VMI’s policy violated the Equal Protection Clause.  The Romer case was decided by a 6-3 vote, with the centrist judges joining those in its more liberal wing; in the VMI case (in which Justice Thomas was recused), Chief Justice Rehnquist joined the result, making it a 7-1 decision and leaving Justice Scalia as the sole dissenter.

How to characterize the ideological leanings of the current Supreme Court is open to debate.  One often expressed concern is that this Court is marked not by three separate poles, but by a split along traditional 6-3 lines.  And a related concern as to cases decided by that 6-3 split is that this Court is very willing to overturn precedent and to arrogate power to itself, often without careful reflection of the foreseeable consequences of its decisions.  That criticism is one I and others have made, for example, as to the overturning of the Chevron doctrine in the Loper Bright case.[15]

Another example of this 6-3 divide, which I know all too well, is the recent 303 Creative v. Elenis case.[16]  In that case, the Supreme Court ruled, for the first time ever, that there exists an exception to the public accommodations requirement that businesses open to the public must serve all comers.  This ruling, as I said in the wake of the decision, threatens to “permit businesses to turn away LGBTQ customers just by claiming that they sell expressive or artistic services. This deeply concerning opinion is far out of step with the will of the American people and American values.”[17]

As I reflect on the 303 Creative case and Dobbs, I contrast those outcomes with cases like Romer v. Evans and Planned Parenthood v. Casey.[18]  In Casey, Justices Kennedy, O’Connor, and Souter wrote a plurality opinion that concluded that the constitutional right to abortion established by Roe v. Wade was settled law and it would be too destabilizing to overturn Roe. That case was closely watched, as those very justices all had either expressed prior doubts about Roe or were believed to be skeptical of the decision.  Given the opportunity to overturn Roe, however, all three justices concluded that it would be irresponsible to do so.

As I reflect on the Dobbs decision, I see it as almost the opposite approach of Casey.  In Dobbs, five Justices in the majority ignored Chief Justice Roberts’ plea to focus its decision on the specific legal issue before it—whether Mississippi’s 15-week abortion ban was constitutional.[19]  Ultimately, Chief Justice Roberts stood alone, concluding that the Court should have decided only that issue.  The five-Justice majority, by contrast, went far beyond Roberts’ line, instead ruling that the Constitution does not protect access to abortion at all.  Consequently, abortion bans that endanger the lives of women by preventing access to life-saving health care or by effectively requiring 12-year-old rape victims to continue a pregnancy to term are now in force.

The challenge we now face is how to approach a Supreme Court that appears poised to act aggressively to overturn precedent and ignore any harmful consequences of its decisions.  In the case of Dobbs, the consequences are coming into focus, including many patients enduring life threatening harms because in many states doctors are prevented from providing medical care when a pregnant woman experiences extreme distress.  What remains to be seen is whether the Court will be influenced by these consequences in future cases or whether it will continue to overturn established precedents, such as Griswold v. Connecticut,[20] which protects access to birth control. Indeed, Justice Thomas’ concurrence in Dobbs promised that it is only a matter of time before the Court does so.[21] And Justice Kagan more recently noted that the analysis “applied to abortion [in Dobbs] … applies to a lot of other things.”[22]

One of the defenses of Dobbs is that the Court should ignore harmful consequences of its decisions, determine the original understanding of those who adopted the relevant constitutional provision(s), and focus only on abstract legal principles.  If the Supreme Court indeed follows this methodology, Griswold, too, is in jeopardy of being overturned.  After all, the equal protection and due process underpinnings of Griswold are essentially similar to those that underpinned Roe.  To the extent that the Court is willing to consider the consequences of its decisions, and to be more cautious about overturning precedent, that begs a question for advocates:  how to give more force to the reliance interests that underpin the doctrine of stare decisis?

When I gave a talk about the Supreme Court and constitutional law to college students a few years ago, I was asked an astute question: “what advice would you give to advocates arguing before the Court seeking to prevent the undermining of established privacy and equality rights?”  My answer was that this is exactly the challenge Justice Ginsburg so masterfully solved as an advocate.  In short, she found the right cases to convince the Supreme Court to recognize that the Equal Protection Clause protected against gender discrimination, often by identifying factual contexts that highlighted how unequal treatment based on gender hurt both men and women.

In my most recent Supreme Court argument, I faced the challenge of how to explain to the Court that stalking is a serious problem and one that often is devastating to women in abusive relationships.  In the case, Counterman v. Colorado, the Court addressed the question of whether the First Amendment required a heightened mental state before convicting a perpetrator of stalking when the relevant actions solely involved allegedly threatening speech.[23]  In Counterman, the victim, C.W., received thousands of Facebook messages that went from disturbing to outright scary.[24]  Under Colorado law, it was sufficient, for First Amendment purposes, for a jury to find that the victim in a stalking case reasonably feared for her physical safety.[25]

In Counterman, the Court concluded that it was important for stalkers to be afforded “breathing room” to avoid any potential “chilling effects” on protected speech.[26]  As such, it imposed a requirement that prosecutors establish that a defendant consciously disregarded the risk that his target would understand his speech as threatening her physical safety.  The risky part of this decision, which the majority glossed over and the dissent highlighted,[27] is that it may well protect delusional or devious defendants by allowing them to suggest that they had no idea that what they said could be perceived as threatening.

In Counterman, the Court focused on the perceived harm to the speech interests of a would-be stalker.  As Virginia Law School professor Danielle Citron masterfully explained, however, the Court did not attend to the speech interests of the victim.[28]  And these speech interests were hardly hypothetical:  C.W., the victim in the case, was a well-known singer whose career and whose voice–quite literally—was extinguished by the terrifying stalking she endured.

Upon reflecting on the Counterman case, and the state of the U.S. Supreme Court, I return to a lesson taught to me by Justices White and Ginsburg: the importance of bringing the facts and consequences of a particular case to the Court’s attention.  In Counterman, where the case was litigated fully and the victim’s story was told, it is far easier to accomplish that goal than a case like 303 Creative, which was a facial challenge.  Given the posture of 303 Creative, there was no actual harm at issue, only hypothetical ones, as the business in question had yet to go into the wedding website business at all and had yet to receive or refuse any requests of any sort for wedding websites.

I am a strong believer in the Supreme Court’s ability to make better judgments in the face of an actual factual record.[29]  To be sure, that strategy may not always succeed, as Justice Ginsburg’s dissent in the Lily Ledbetter case[30] makes plain.  In that case, Lily Ledbetter was an employee who was for many years paid less than her male colleagues because she was a woman, but, by the time she found out—through an anonymous note—she was told by the Supreme Court that she sued too late.[31]  In short, the Supreme Court overlooked the compelling facts in that case, but Congress did not, ultimately overruling the Court’s decision in the Lily Ledbetter Fair Pay Act.[32]

A second lesson I continue to reflect on is one taught by Professor Robert Cover, as emphasized in his masterpiece article, Of Nomos and Narrative.[33]  As Cover explained, a court should take care to ensure that it tells the story and empathizes with the party who does not prevail in the case.  This exercise not only honors both parties in the case, but it has the virtue of forcing the Court to struggle with competing points of view rather than stacking the deck to bolster the equities of the party who prevails.

* * *

In his terrific memoir, Vision,[34] former Judge David Tatel—who served for 28 years on the U.S. Court of Appeals for the District of Columbia—makes an important point related to Cover’s call for empathy.  He cautions judges against using language that suggests a partiality to one side or the other, relating the story of his handling of a case involving the protesting of abortion clinics.  He tells how he shared his draft opinion with Judge David Sentelle, a conservative colleague and a friend, and asked for his feedback.  Judge Sentelle suggested some changes in his language and Judge Tatel, grateful for the feedback, made the changes, mindful that his goal was to “persuade, not alienate,” readers who disagreed with the opinion.[35]  By contrast, Judge Tatel noted that Justice Alito, in the Dobbs decision, used “loaded” language that revealed a particular point of view.[36]  In an even more extreme example, the lower court rulings involving access to Mifepristone, which enables medication assisted-abortions, have used some very provocative language, including comparing abortion to eugenics, Social Darwinism, and Naziism.[37]

When I think about the story Judge Tatel told about Judge Sentelle, it reminds me of what I witnessed between Justice Ginsburg and Justice Scalia.  In the VMI case decided in the term I clerked, Justice Ginsburg related that Justice Scalia gave her a courtesy copy of his dissent on a Friday night before he circulated it.  She shared that reading it “destroyed her weekend”—and that the “final draft was much improved thanks to Justice Scalia’s searing criticism.”[38]  Being able to disagree without being disagreeable is another lesson I learned from Justice Ginsburg.[39]

At its best, the Supreme Court operates as a forum where issues are open for debate and reflection, parties are respected and treated with empathy, and issues are resolved in a manner that leave both parties confident that they had a fair day in court.  As citizens, lawyers, and leaders of our profession, we must hold onto this vision of the Court.  And we must do our part to work to advance a vision of our Constitution that advances equal justice for all.

 

____

[1] Philip J. Weiser, Justice White and Judicial Review, 74 U. COLO. L. REV 1305, 1308 (2003) (discussing Justice White’s conclusions in Buckley v. Valeo, 424 U.S. 1, 257 (1976) (White, J., concurring in part and dissenting in part); see also Stephen Breyer, Our Democratic Constitution, 77 N.Y.U. L. REV. 245, 254 (2002) (discussing campaign finance regulation as “reflect[ing] empirical matters about which the legislature is comparatively expert” over the judiciary).

[2] Justice White died in 2002, https://supremecourthistory.org/associate-justices/byron-r-white-1962-1993/, and Citizens United was decided in 2010, Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).

[3] There are lots of reasons to be critical of Citizens United, including its practical impact on our political system.  On its own terms, moreover, it is highly problematic.  Notably, it was premised on three fallacies—first, that money should be equated to speech; second, that corporations should be treated as people for First Amendment purposes; and third, that we can trust that transparency will provide a checking function that can justify allow unregulated spending.  To the extent that the third point was a prediction, it’s fair to say today that it has not borne out that was, as we are awash in dark money that is difficult, if not impossible, to trace, particularly during the particular election cycle when the money is spent.

[4] Justice Ginsburg died in 2020, and Dobbs was decided in 2022, Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).

[5] I discussed this point in Justice White and Judicial Review, 74 U. COLO. L. REV. at 1309.

[6] Ruth Bader Ginsburg, Speaking In A Judicial Voice, 67 N.Y.U. L. REV. 1165, 1199 (1992).

[7] See Edwards v. Arizona, 451 U.S. 477 (1981) (applying and extending Miranda).

[8] The Honorable Ruth Bader Ginsburg, Remembering Justice White, 74 U. COLO. L. REV. 1283, 1285 (2003)

(referencing Proceedings in the Supreme Court of the United States in Memory of Justice White, 537 U.S. v (2002)).

[9]Id.

[10] See John Paul Stevens, In Memoriam: Byron R. White, 116 HARV. L. REV. 1, 1-2 (2002).

[11] I discuss the problematic aspects of the decision to overrule Chevron in the Loper Bright case in a recent talk. See https://coag.gov/blog-post/health-care-policy-in-the-post-chevron-age-cu-anschutz-10-10-2024.

[12] This part of my address borrows from an earlier one on the impact of the Dobbs decision. See https://coag.gov/blog-post/dobbs-and-its-aftermath-10-17-2023.

[13] 517 U.S. 620 (1996).

[14] 518 U.S. 515 (1996).

[15] See supra note 11.

[16] 600 U.S. 570 (2023).

[17]https://coag.gov/press-releases/attorney-general-phil-weiser-says-scotus-decision-in-303-creative-civil-rights-case-fails-to-uphold-the-principle-of-equal-justice-for-all/

[18] 505 U.S. 833 (1992).

[19] See 597 U.S. at 347–48 (Roberts, C.J., concurring in the judgment)

[20] 381 U.S. 479 (1965).

[21] See 597 U.S. at 332–33 (Thomas, J., concurring).

[22] Josh Gerstein, Elena Kagan keeps pressing for ethics code enforcement at Supreme Court, POLITICO (Sept. 9, 2024, 5:25 PM EDT), https://www.politico.com/news/2024/09/09/elena-kagan-supreme-court-ethics-enforcement-00178058.

[23] 600 U.S. 66 (2023).

[24] Id. at 70.

[25] People v. Counterman, 2021 COA 97, ¶ 29 (“[T]he [Colorado] supreme court defined a ‘true threat’ as a ‘statement that, considered in context and under the totality of the circumstances, an intended or foreseeable recipient would reasonably perceive as a serious expression of intent to commit an act of unlawful violence.’” (quoting People in Interest of R.D., 2020 CO 44)).

[26] 600 U.S. at 75.

[27] See 600 U.S. at 120 (Barrett, J., dissenting).

[28] Citron, Danielle Keats, From Bad to Worse: Stalking, Threats, and Chilling Effects (November 8, 2023), Supreme Court Review, forthcoming, Virginia Public Law and Legal Theory Research Paper No. 2023-72, Available at https://ssrn.com/abstract=4627491.

[29] This view also underpins my concern that the Supreme Court should avoid, where possible, deciding important doctrinal issues in cases at the motion to dismiss stage.  In Verizon v. Trinko, for example, the lack of any factual record lent itself to the Court imaging what the issues were rather than grounding its decision based on an actual record.  540 U.S. 398 (2004).  Indeed, in that case, the lower courts later discovered that the whole case was based on a mistaken premise and that the plaintiff in the case actually lacked standing to sue. See L. Offs. Of Curtis V. Trinko, LLP v. Verizon Commc’ns Inc., No. 00 CIV 1910 SHS, 2006 WL 2792690, at *1 (S.D.N.Y. Sept. 27, 2006)..

[30] Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 643-61 (2007) (Ginsburg, J., dissenting).

[31] Id. at 637.

[32] PL 111-2, January 29, 2009, 123 Stat 5.

[33] See Robert M. Cover, The Supreme Court, 1982 Term—Foreword: Nomos and Narrative, 97 HARV. L. REV. 1, 4-68 (1983).

[34] David Tatel, Vision (Little, Brown and Company, 2024).

[35] Id. at 223–24.

[36] Id. at 224.

[37] All. for Hippocratic Med. v. U.S. Food & Drug Admin., 668 F. Supp. 3d 507, 558–59 (N.D. Tex. 2023) (“But using abortion to promote eugenic goals is morally and prudentially debatable…. Abortion has proved to be a disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics…. Though eugenics were once fashionable in the Commanding Heights and High Court, they hold less purchase after the conflict, carnage, and casualties of the last century revealed the bloody consequences of Social Darwinism practiced by would-be Übermenschen.” (text only)).

[38]https://www.supremecourt.gov/publicinfo/speeches/Remarks%20for%20the%20Second%20Circuit%20Judicial%20Conference%20May%2025%202016.pdf at 3.

[39] https://coloradosun.com/2020/09/23/phil-weiser-ruth-bader-ginsburg-supreme-court-opinion/