Terror, Torts, and Telecom: The Supreme Court's 2003-2004 Term

June 29, 2004

Unedited transcript prepared from a tape recording

Proceedings:
MR. GREVE:  Good evening, ladies and gentlemen.  My name is Michael Greve.  I'm with the American Enterprise Institute and its Federalism Project.  Welcome to our fourth annual Supreme Court roundup.

I have in front of me a list of remarks handed to me by Kim Hendrickson, who is the real Federalism Project, and they run as follows:  First, there is in these folders a list of the cases, including the cases that we will be discussing today, and Kim, who is in the audience here, will be happy to provide you that list if you don't have it.

Second, there will be, following this event, cocktails right outside this room.  And, of course, you all are invited, and we would be honored and delighted if you were to linger and discuss these important issues at somewhat greater length.

And, third, we will have a transcript of this event online at AEI's website in, we hope, mid-July.

As I said, this is the fourth time that we've staged this event, and the more often we do this, the more I'm sort of reminded of the last day of school my kids had when they were in third or fourth grade.  You're invited to the school, and you get to talk to the homeroom teacher, and then you're shown around the corridors where, in celebration of the day, they've hung the kids' artwork of the preceding semester.  And the sense that you get walking those corridors is the same sense I get in reviewing Supreme Court opinions.  These things deal with serious subjects.  Noah's Ark was always among them.  But then the preferred medium of expression is fingerpainting or sometimes sort of collages stitched together from the New York Times and People magazine.  And it always takes some effort or sometimes takes considerable effort to make out what the ostensible subject was supposed to be.

You do find the occasional sort of nugget.  Sometimes these people really--the artists really surprise you, and you say, "Wow, she rendered a car in three dimensions in crayon.  I had no idea she could do that."  And the desired audience response is always one of sort of respectful encouragement, so you are allowed to say things like, "Well, given their age, it's pretty amazing what they did here."

[Laughter.]

MR. GREVE:  But you can't shake the sense that, you know, at the end of the day these people ought to be able to do better, and in any event, you walk away from it, and ten minutes later it all becomes a blur, at least to me.

So we have a very distinguished panel here to lift some of the cloud and maybe even one of the things I hope to find out here from our panel is whether in all that artwork there is one piece that I can actually take home, put on my fridge with a little magnet next to my three-year-old's collection of rainbows.

Since this is the Federalism Project, I should say a few words about that aspect of this past term and, in particular, the sort of cases.  This is now--and, by the way, the fact that this review originates in the Federalism Project is by some sets of cases that you might otherwise find interesting or important in the cases are not in the list of cases that we're going to be discussing today.

This is the second term in a row that the federalism cases, which ones dominated the Supreme Court's agenda, have not been particularly prominent.  I would suggest four reasons why that might be so.

The first possible reason which was bandied about a lot in the immediate aftermath of September 11 was that, Sorry, we're now in a war, and this means more power to the national government, and this means by definition federalism and all the rest of it is a luxury that we can no longer afford.  By its very nature, a war, whether it's conventional war or war on terror, focuses attention to national affairs, concentrates power in the national government, and at some point the Supreme Court will come to regard federalism and states rights as a mere distraction.

The second plausible explanation and one with which I myself have sort of tinkered in the past is that the federalism jurisprudence, regardless of the war, had reached its natural limits.  The Court simply could not push the main doctrines any further without running into serious political obstacles.  And so that may account for the strange disappearance of federalism cases.

A third possible explanation--and this goes closer to the present term--is that the federalism cases may have not disappeared; they may have simply migrated or they may continue to exist, so to speak, in a slightly different form, and that is jurisdiction.  If you look over the cases of the term and if you listen to today's presentations, I believe, you will find out that jurisdiction is the main sort of--or at least a pervasive theme behind the cases.  And that is no coincidence.  People frequently say, cite Toqueville to the effect that, well, there's no political dispute in America that doesn't sooner or later become a legal dispute.  And I think that's not because we're Americans and because we have this strange infatuation with litigation, but because the Constitution in a lot of ways sets us up for it.  The Constitution makes that decision.

One of the things that drives that decision towards legalism in constitutional law and sub-constitutional law is federalism.  Once you've decided that the way we keep control over the states is not the force of arms but the majesty of the law, the question is:  Whose law?  And what law?  And under what circumstances?  In other words, everything becomes jurisdiction, and jurisdiction becomes everything.

And the main case that sort of holds the key to the modern administrative state and the modern constitutional and governmental structure may not be some sexy case like Wickert v. Filbourne (ph) or some manifestly constitutional case--

MR.           :  That's a sexy case?

[Laughter.]

MR. GREVE:  I take back the adjective.  There are those of us who find it sexy.

But here's a really sexy case:  Erie Railroad, right?  And it's not a coincidence, I think, that this term culminated in a big, big controversy of opinions over Erie Railroad.

And the fourth and final suggestion as to the strange disappearance of federalism cases may be that, well, the federalism cases themselves were never about federalism; they were just about sort of judicial supremacy.  So all modern Supreme Court law is about the Supreme Court throwing its weight around, and sometimes it happens to throw its weight around against the states and sometimes the national government happens to be at the receiving end, and that's largely a function of the ebb and flow of cases.  It doesn't signal anything about the direction of the underlying cases.

These are my initial speculations, utterly random.  We have three vastly more qualified participants on this panel to discuss the past term and its broader context.  As always at the American Enterprise, we strive for intellectual diversity, and we achieve that purpose by inviting someone from Harvard Law School, someone from Yale Law School, and a graduate of the University of Chicago Law School.

[Laughter.]

MR. GREVE:  That about covers the waterfront.  And we'll go in the following order.  There are bios, by the way, extended bios about our speakers in your packets.  We'll start with Garnett, a graduate of Yale Law School, a former clerk to Chief Justice Rehnquist, and now a professor at Notre Dame Law School, and he will talk principally about federalism and the First Amendment, and he will explain what these things have to do with each other.

We will then go to Ed Warren, who's with Kirkland & Ellis, graduated from the University of Chicago Law School where he also teaches.  He's eminently qualified as a very, very experienced business litigator to discuss the administrative law, environmental law preemption portfolio of the term.

And, finally, from Cambridge, Massachusetts, Viet Dinh, who graduated from Harvard Law School; of course, as all of you know, served as the Assistant Attorney General for Legal Policy between 2001 and 2003.  He is now back at Georgetown University Law Center, and he'll cover this year's terror and foreign affairs cases.

And with that, Rick Garnett.

MR. GARNETT:  Thank you, Michael.

Like Michael said, I'm going to say a few things about federalism and religious freedom, and if I'm lucky, I'll be able to suggest ways that they tie together.  In fact, what I'm going to try to do is to stitch together a few cases dealing with, for example, the Tax Injunction Act and religious schools in Arizona, cases about student loan debts and elevator-lacking courthouses in Tennessee, scholarship programs and nativism-inspired statutes in Washington, non-custodial atheist fathers and the Pledge of Allegiance, and at the center of it all and dear to my heart, Sabri v. United States, which deals with the ominously denominated federal bribery statute Section 666.

[Laughter.]

MR. GARNETT:  About Sabri, I think my old boss, the Chief Justice, would have said--he likes to quote Thomas Gray whenever he does his Supreme Court roundup, "The Elegy in a Country Churchyard."  The Chief likes to pay tribute to the often overlooked cases, and Sabri is one of these little diamonds in the rough.  It's "A flower which was born to blush unseen and wasted sweetness on the desert air"--or, in this case, the Minneapolis air.

As Michael said, a few years ago you couldn't swing a cat without hitting somebody who was talking about a federalism revolution, and usually they were regarding this revolution with sort of wild-eyed terror.  Certainly in my business, in the legal academy, there was a cottage industry devoted to decrying the return of the sort of bizarre mystical doctrines of federalism and predicting all kinds of ruin if we continued down this road.

Now, these claims--I think in retrospect it appears, but even at the time it appeared--were wildly exaggerated.  Still, there was something to it.  I mean, there did seem to be something happening, I think, starting with Lopez and in the years that followed.

This term, though--and I say this without much happiness--I think should end any such talk of federalism revolutions.  In my view, unfortunately, if there ever was such a revolution, it's now over and indeed is in full retreat.

Now, to get a handle on this, I'm going to dig a little bit deeper and try to talk about the different senses or the different ways we might think about this idea of federalism.  And as I see it, there are at least four different versions or kinds of themes in the federalism discussion.

First, there's this sort of mystical federalism.  It's built on abstract claims about state sovereignty and immunity.  In these cases, you get this idea of the states as being these kind of metaphysical entities, sort of like demi-urges in a constitutional creation myth or something.  In cases like Alden v. Maine, Prinz v. Mackler, these are cases where you see the Court talking in terms of the dignity of the states and referring to the states as being the kind of things that may not be treated certain ways.  My friend Michael has written well in critique of this view of federalism.

Now, in my view this version of federalism is not particularly inspiring, and I think it's shaky in terms of its constitutional grounding.  And as Michael suggested, this version of federalism didn't play much of a role in this term at all.  But I'll say a bit more about that in a second.

A second form of federalism we might think of as experimentation federalism, and on this view, the point of federalism is that it enables sort of a diversity of policy approaches to all kinds of practical and moral problems.  On this view, federalism's virtue is that it allows for competition, for states to take different paths, for entry and exit.  As Justice Brandeis famously put it in his New State Ice case, "It is a happy incident of our system that states may serve as `laboratories' for `novel social and economic experiments.'"

So this version of federalism, you might recall, you might find in cases like the assisted suicide case from about six years ago, Glucksberg.  I think you see it in the school choice case, Zellman from a few terms back, where the Court endorsed Ohio's experiment without suggesting that it was required or that other states should follow Ohio's lead.  But it's worth noting that even in cases like those, we need to remember that this Court has not been particularly tolerant of states' trying to go their own way in terms of divisive moral questions, and I think Lawrence probably shows that, or Stenberg, as well as anything else.

Now, a third version of federalism is what we might call civil society federalism or the federalism of mediating associations.  I realize this is a bit abstract, but I think it's an important piece of the puzzle.  You see this in a lot of First Amendment cases, for instance, the Boy Scouts case from a few years back, where the Court protected the right of the Boy Scouts to determine for itself the message and messengers that it wanted to hold out to the public.  Some of the cases dealing with political parties from a few years back also exhibit this theme, a case called California Democratic Party v. Jones, for instance, which sort of affirmed that political parties have the right to select their own messenger and to select their own message without being revised by government.  In this sense, federalism clears out space for nongovernment entities to do their work.

Then the final version of federalism I think is the limited government or enumerated powers version of federalism, and this is in a way the form, the kind of federalism that started the whole show back with Lopez.  On this view, federalism is not about the dignity of these metaphysical beings called States--with a capital "S"--and it's not just a policy program of competition.  Instead, federalism is simply the result of the fact that, as the Chief Justice put it in Lopez, "Ours is a government of limited, enumerated, and defined powers."  So in this view, there's no mysticism to federalism.  It just reflects the fact that our Constitution divides and separates power.

In my view, this is the kind of federalism that the Court is best able to enforce and ought to enforce, and it's also a vision that I am afraid is on its last legs.

So, with all that background in mind, let me say a few things about this term and think about how federalism in all these forms fared in this term's cases.  And the short answer, for those of you who are law students and need the black letter bit, is, "Not very well," I think.

For starters, the Justices showed strikingly little interest in the mystical or dignity-based version of federalism.  There was a case called Tennessee v. Lane involving the Americans with Disabilities Act, and also another Tennessee case called Hood.  In both these cases, the government's immunity- or sovereignty-based claims were quite unsuccessful.

Now, it is true that in a little remarked case called Frew v. Hawkins--another one of these desert flowers, I suppose--Justice Kennedy nodded, as he is wont to do, to the sovereign interests of the states, but then went on to crush these interests 9-0.

In a case called Hibbs v. Winn involving the interpretation of the Tax Injunction Act, Justice Kennedy again invoked the respect due to state courts, but this fell on deaf ears, since he was in dissent, as did his charge that the Court was treating states as "diminished and disfavored powers."  In Hibbs v. Winn, the Court seemed unperturbed by the charge that it was treating the states as diminished or disfavored powers.

On the second version of federalism, what I called the experimentation version, it's a bit more of a mixed bag.  You could look at this Hibbs v. Winn case, which is, again, about the Tax Injunction Act and about the ability to challenge details of states' tax collection programs in federal court, you could see this as second-guessing state policy or as hamstringing Arizona's school choice experiment.  What happened in Hibbs is that Arizona upheld its own school choice program, and those who were opposed to it on strict separationist grounds just wanted to sue again.  And that's how we got the Tax Injunction Act litigation.

The recent case, the Apprendi case, called Blakely v. Washington, again, you could see that as the Court perhaps heavy-handedly overriding a state's policy experiment with certain kinds of sentencing regimes.  Maybe.

On the other hand, some see in Locke v. Davey a vindication of this state experimentation version.  Locke v. Davey is the case about the Washington scholarship program where the Court said, in a nutshell, look, it's all right if states want to experiment with a little bit stricter version of separation than the federal Constitution requires.  As the Chief Justice put it, there is some play in the joints of the First Amendment, and states have a little leeway to decide whether they want to be a little more cautious about public money finding its way into the dreaded coffers of religious schools.

Now, my view of Locke v. Davey, for what it's worth, is very different.  I don't think that case should be celebrated as state experimentation of federalism.  I think Locke v. Davey is a case where we do have some fundamental First Amendment rights that are at issue, and there's a misunderstanding of federalism out there, which is that the states--if one believes in federalism, one believes states can do whatever they want.  That's nonsense, of course.  Even in a robust commitment to federalism, states ought to respect the fundamental rights of citizens as those rights have been laid down, and I think it's pretty clear that in Locke v. Davey the Washington program was trampling blatantly in some of our religious equality norms.

In any event, the better example of this experimentation version of federalism, I think, is Justice Thomas' powerful concurrence in the Pledge case, in Newdow.  I will say a bit more about that in a second, but if you haven't had a chance to look at that opinion, I urge you to, where he gives a fairly convincing--not fairly convincing, an incredibly convincing, to my way of thinking, essay on the original understanding of the establishment clause as a federalism principle, as a principle that permitted states to experiment a bit in terms of church-state relations.

Well, on the third kind of federalism, the civil society form, I mentioned a few minutes ago that a few years back we had cases like Jones, which seemed to preserve the integrity of political actors, like political parties.  This term, instead, we had the BCRA case, McConnell, about the campaign finance reform legislation.  And there's all kinds of things that could be said about that case, in my view mostly bad.  But one thing you could say about it, I think, is that it does undercut the sort of autonomy and power and place of political parties in our system and subordinates them to the good government aims of incumbents.  And that's something that I think from a civil society point of view we ought to be concerned about.  We ought to see these efforts to standardize political messages as a threat to federalism.

Well, finally, on the limited government forum, the old Lopez forum--and, again, this is what started it all, and I think a lot of us had high hopes with Lopez and then later with Morrison.  This term, though, I think it's hard to detect any Lopez-like concern for first principles of enumerated powers.  The Court avoided an enumerated powers question in the Tennessee v. Hood case that I mentioned about the bankruptcy clause.  In Tennessee v. Lane, the Court seems to have returned to a pretty expansive understanding of Congress' enforcement power under Section 5, trimming back a bit of Boerne, perhaps.  And then finally, we have what for me is the term's real heart-breaker, Sabri v. United States.  And this is a heart-breaker for me, and none of you could probably care less about it but--and I should say for full disclosure that I worked on this case in an amicus capacity.  But this is a challenge to a federal bribery statute which, in a nutshell, makes it a federal crime to bribe somebody who's working for an organization that gets federal money.  So the Federal Government sends out money.  An agency gets this money pursuant to a program.  Any bribe involving an agent of that funds-receiving entity becomes a federal crime.  In my view, it's sort of fitting that a couple commentators have referred to this as "the beast in the federal arsenal."

Here's what my concern about this case was.  It's pretty settled doctrine that the government can spend, the Federal Government, notwithstanding the enumerated powers doctrine, can spent money on whatever it wants, the spending power, unlimited.  It's also pretty well settled that the necessary and proper clause permits the government to legislate in pretty much any way that it wants.

Now, you put these two "any way that it wants" things together, and you get basically, in my view, a federal police power.  But that can't be right.  Or so I thought.  But eight Justices saw it the other way, only Justice Thomas endorsing what I like to think is the correct view on this.  For Justice Souter--and this is why I think we have seen such a full-blown retreat from the limited powers notion of federalism.  For Justice Souter, it seemed utterly unremarkable that the Federal Government can disburse money to anybody and for any reason that it wants--subject to a few constraints like the establishment clause, of course--and also unremarkable that the government has an interest in preserving the "integrity" of anybody who gets federal money and that that interest authorizes the creation of new federal statutes.

Now, again, this is an 8-1 case, and no one is going to talk about it outside of this room.  But I would advise all of us to take this case to heart because I do think it represents a fairly depressing repudiation of any hopes for enumerated powers revival.

Finally, let me just close with a few thoughts about the Pledge case.  Again, this might not so obviously be a federalism case, but let me suggest a way in which it might be.  In my view, the Pledge case, if it's properly understood, points to a crucial point at the heart of the whole federalism argument, and that's--and this is basic, I realize, but authentic freedom is well served when power is divided and constrained.  Again, that seems almost tautological.  So, in my view, the Pledge is best understood and defended as a statement about limited government, not as a statement about our merits versus the Soviet Union, although I think that is a statement that's perfectly worth making.  The Pledge should be defended, in my view, not as a statement lacking any theological or religious content, but as a statement that makes a permissible theological or religious claim, namely, that government is limited, the state is not omnipotent, and that the state's abilities to make claims of loyalties on citizens are limited.

If you understand it this way, words like "under God" in the Pledge don't violate the religious freedom of any objectors or of atheists.  They don't coerce anybody's freedom of conscience.  Rather, the words "under God" in the Pledge actually lift a burden on those of us, like me, who would not be able to pledge allegiance to a country that didn't acknowledge the limited nature of state power.

So, with that, I'll turn it over to one of my colleagues.

MR. GREVE:  Thank you, Rick.

We'll now hear from somebody whose many clients are undoubtedly thrilled to hear that federalism is finally dead.

[Laughter.]

MR. GREVE:  They're dancing in the aisles at Kirkland & Ellis.  Ed Warren.

MR. WARREN:  When Mike asked me to do this, he said, well, he wanted me to do the environmental cases and the telecommunications cases and a few jurisdictional cases.  And I said, gee whiz, I really have the boring part of the docket.  But I didn't understand that Mike thinks these are sexy cases.  So maybe it's more interesting than I thought.

I tried to think how to take this boring part of the docket--and let me tell you what I am covering here.  I am covering six environmental cases, which is the Engine Manufacturers case, the Alaska Department of Conservation case, the Public Citizen case--that's the Mexican truck drivers--the South Florida Water Management case, the Southern Utah case, and the BedRoc case--the Pittman Mining Act case, a very important case also.

Then in the telecommunications cases, the Nixon case and the Verizon case, and I was going to discuss briefly the U.S. Telecom case, but, fortunately, we don't have to deal with that one since that case is not going to be headed to the Supreme Court.

I also want to talk about the General Dynamics case, which I think is a quite significant case, the Aetna case, Central Laborers, the Grupo Dataflux case, the Intel case, and these are all very, very important cases that you'll see on the front page of the New York Times.

But, at any rate, let me suggest that I tried to think of ways to manage a theme out of this disparate group of boring cases, and the first thing I thought of is, well, I ought to think about the preemption cases, of which there really are three on this list.  There's the Engine Manufacturers case and the Nixon case and the Aetna case.  But then I thought if anyone has read Mike Greve's recent article about signaling and preemption cases, these cases were obvious the way they were going to come out.  So there's nothing here to say about those cases that Mike hasn't already said.

Then I started looking over the cases, and I realized that four of the cases had been written by Justice Scalia:  the Engine Manufacturers case, the Southern Utah case, the Verizon case, and the Grupo Dataflux case.  And in four others, he had written either dissenting opinion or a concurring opinion.  That's the South Florida case, the Nixon case, General Dynamics, and Intel.

So I thought that maybe I would speak about Justice Scalia's jurisprudence and how it has survived this term, whether it's thrived or the opposite.

Now, to my way of thinking, Justice Scalia's greatest contribution to the Supreme Court from the moment he got on the Court was that he's kind of the anti-chancellor.  This is the Justice who has systematically thought through his own jurisprudence and has developed an internally consistent and logical jurisprudence from which the results in individual cases are really derivative of the overall jurisprudence.  They are not ad hoc results which are heavily influenced by the specific of any individual case.  And I think of Sabri for a minute on that score because I happened to do a moot court in the Sabri case, and thinking about the case, I thought this is Salerno.  You know, the problem is that the defendant in the case was guilty of bribery, manifestly, I think, guilty of bribery, so that all of the great constitutional issues that are presented by the statute get lost, I think, before this Court in the sense that this is not a case on which those issues are really presented.

But, at any rate, that's Justice Scalia.  And this is a man who I think has made a major contribution to the thinking of the Court by pressing the idea that we want to have rules, not standards, that we want to focus on the text and the structure and canons of constructions, and not legislative history.  We want to have predictable law.  We want to have certainty in the law.  And this is the way to do justice, not by having individualized determinations and an evolution of cases where we build a multi-part test in order to reach the proper result.

He has had an expansive view of Article II and of delegation, sometimes to my chagrin, but, nonetheless, he has had an expansive view of delegation and of Article II.

He has shown great fidelity in a similar manner to constitutional structure and to doctrines that derive from the Constitution--the commerce clause, limitations, takings, federalism, and so forth.  And from that, in the early years of Scalia's time on the Court, we saw him in the ascendancy.  And he, although he didn't write Chevron, became really the promoter of Chevron.  And Chevron, as I think you must all know, is the most cited Supreme Court case ever and one of the most important cases, I think, the Court has ever decided.  It's done a lot to explain the--I think it's done a lot to explain the fact that the Court's docket has dropped from 150 cases 15 or 20 years ago to 74 cases this term, because so many of the cases are statutory interpretation cases.  The agencies--the consistency provided by Chevron for agency interpretations has helped to diminish the docket of the Court.

He also took an expansive view of Article II and the narrow view of the role of the courts, and thus we had a case like Lujan, which was cutting back on access to the courts and promoting the role of the executive branch in carrying out the laws.  We see cases like Mistrada (ph) cutting back on the delegation doctrine.  And then we see cases like Morrison v. Olsen, Prinz, Lopez, Lucas, reflecting the sort of structural fidelity from Scalia's standpoint.

But what we've seen, I think, in the last few years--maybe the last 10, maybe the last half of Scalia's term on the Court--is that the Court itself is rejecting or moving away from the kind of principled jurisprudence that Scalia stands for.  It's not so much his position as conservative or liberal, but I think it is the rules versus standard, the predictability that derives from Scalia's approach to the law.  And now I think we see everybody on the Court, with the possible exception of Thomas, and maybe not even Justice Thomas in every instance, moving away from Justice Scalia's jurisprudence.

We saw it in Christiansen and Meade where Justice Souter, leading eight members of the Court, rejected the application of Chevron in situations where the agency hadn't gone through any kind of a formal proceeding, whether it's informal rulemaking or even informal adjudication.  We saw Laidlaw cutting back on standing, and I think virtually reversing Lujan in the standing area.  And cases that looked in the early part of Scalia's tenure on the Court, like Prinz, Lucas, and so forth, to be harbingers of future cases which would develop the doctrine, now look more and more like outliers.  And more and more you see cases like Lujan where Scalia struggles to get five or six votes, but always with concurrences from Justice Kennedy or Justice O'Connor.  You see that the doctrine, as he espouses it, stands for no more than his own views, and the majority is slipping away.

Well, that sounds gloomy.  The question is:  How does it look this term?  And is this sort of a sense that Scalia is engaged in a rear-guard action?  And I'm really speaking more in the business and preemption cases as opposed to more generally.  Is that what is going on this term?  And I really think it really is.  I think Justice Souter and, to a lesser extent, Justice Ginsburg have become really outspoken critics of Justice Scalia's approach on these sorts of questions.

Scalia, if you take the Engine Manufacturers case, is still very much a textualist.  I have litigated in this area quite a bit, and I think Scalia approached the question of what is a standard under the Clean Air Act with greater simplicity than I would have ever dared, and he carried everybody on the Court except Justice Souter.  But Justice Souter makes it very clear that what matters to him is statutory purpose, legislative history, and not strictly the text.

You see this similar kind of debate going on with Justice Ginsburg in the Intel case, where Scalia says that the text of the judicial code is clear, you don't need to elaborate it in the way she does with the legislative history.  He seems to be losing the legislative history battle, at least with those two Justices, and conveniently with others when they feel the need to do so.

Likewise, in the Nixon case, which was a preemption case, what Scalia says, this is easy to decide because it's just Gregory v. Ashcroft.  Essentially what he's saying is that a state ought to be able to regulate its own municipalities and keep them out of the communications business, and you don't need to go through an elaborate analysis to reach that conclusion because the statute does not clearly negate the ability of states to do that which they would otherwise be able and willing to do.

Perhaps the most significant case of all, I think, is the General Dynamics case.  The General Dynamics case is the case involving age discrimination, reverse age discrimination under the civil rights laws.  The question there is whether or not younger workers can be protected from preferences given to older workers.  And as Justice Thomas says in his opinion, age is like race is like sex; it's clear on the face of the statute.  But Justice Souter, writing for the majority says, no, we need to look not just at the legislative history, because the legislative history was sparse, but indeed the social history, the entire body of developments over a long period of time which led up the passage of the statute, which he says makes clear, notwithstanding the simple word "age" in the statute, that Congress meant only to protect older workers from preferences given to younger workers.  So "age" really means "old age," even though that's not what the statute says.

Justice Scalia's rejoinder is, well, surely it is at least ambiguous under Chevron, and the EEOC has opined very clearly on this and, therefore, they should be given deference.

Justice Souter--and this really, I think, reflects the extent to which he is at war with Justice Scalia's jurisprudence in the administrative law area.  What Justice Souter says is, well, now, this is a pure question of law; this isn't a question of law as applied to facts.  And Cardozo Fonseca, as everyone knows, a Justice Stevens opinion about two years after Chevron, has reared its ugly head again, and Justice Souter, again speaking for six members of the Court, or seven--I can't remember--six members of the Court, says this is clear because this is a pure question of law.  He cites that part of Cardozo Fonseca which says Chevron doesn't apply when we're talking about pure questions of law.  It's Marbury v. Madison, says Justice Stevens in Cardozo Fonseca.

So we see that Chevron, which once looked like the way in which most administrative law decisions are going to be resolved on statutory interpretation cases, what we see is Meade and Christiansen cutting back so that only in the context of clearly delegated authority to the agency to decide the undecided questions and then only in the context of rather formal proceedings is the agency going to get deference.  And here is Justice Souter speaking for six members of the Court saying, at least in this instance, this is a pure question of law, and we can decide that ourselves, and Chevron really doesn't apply at all, is what he's saying.  He says it's clear because it's a pure question of law and we, the Court, can decide that.  So I think we see once again Justice Scalia in this area in kind of a rear-guard action.

Now, I don't want to make it sound too bleak because I think the real strength of Justice Scalia's jurisprudence is evident this term in two quite important cases, one of which is on my list and one of which isn't.  But one is the Southern Utah case.  The Southern Utah case is a nine-zip case, so you think, oh, gee, this can't be really very important.  But it is tremendously important.

This is a case involving the BLM management of lands which are prospective wilderness areas where off-road vehicles are being used.  And the environmental group in that case brought an action claiming that it could sue under Section 7061 of the Administrative Procedure Act for agency action unreasonably withheld, unreasonably delayed or withheld.

Interestingly, the Court had never really construed Section 7061, and I happened to be at the argument, and there was a lot of sort of puzzlement about exactly how to handle this case, even though it came out unanimously.  There were very interesting comments being made, even by the Chief Justice, about the Cobell case and the courts and all that.  It's a very interesting discussion going on because the Justices were puzzled by what the reach of Section 7061 might be if the Court were to say that there was jurisdiction here to oversee BLM's management under the FLPMA, under the federal land management statute, of this vast extent of property in Utah.

Justice Scalia cut through all of this and has just a brilliant APA textual reading in which he says, Agency action?  Well, agency action is defined in the APA, in its rulemaking or its adjudication or its orders or its licensing or its sanctions, so forth.  And what he says is agency action--action withheld is agency action, and consequently, we're talking about specific and discrete agency action.  This is in the nature of mandamus.  There has to be essentially a ministerial action that the agency must engage in for 701 to be invoked.  In order to challenge agency action, one must invoke rulemaking or adjudication or ask for a specific decision, and then review would take place under Section 7062, and the whole panoply of arbitrary and capricious review.

I guess I think this is a terrific decision, very well done, and just typical of what Justice Scalia at his very best does.  He seems to me to have taken a complex, hard problem, seen all the implications, written a very clear and deceptively simple opinion, which will have, I think, quite significant implications for the courts in environmental cases and perhaps in other cases.

The other case that I think is worth mentioning is the Vieth case, which is the political gerrymandering case, and this one is so reminiscent of some other Justice Scalia opinions.  He writes a brilliant opinion saying we really ought to overrule Davis v. Brandenburg; we really can't have manageable standards for policing political gerrymandering.  He gets four votes, and Justice Kennedy signs on to the result but not the opinion, and says maybe some time, I can't see how, but maybe some way.  And this is the hallmark of the type of Scalia decisions that sometimes fall by the wayside.  They're brilliantly written.  They seem right.  And nobody seems to have a good counter because he is smart enough to be ahead of everybody else.  And yet as time goes on, a hard case comes up and the majority that led to the result crumbles.

The last case that I might mention, because I know Viet probably would say something about it, that's worth watching in the next term is the wine cases that are coming up, and we have an interest in these cases in our offices, as you know.  And I don't want to--I'm not working on the case so I don't have much of an ax to grind.  But I think it is a quite interesting question because, as Judge Easterbrook says in the Seventh Circuit, it's a fight between the dormant commerce clause on the one hand and the 21st Amendment on the other hand.  Although in that case, I think a fair reading is that he doesn't really resolve that issue, and I think the Court is going to resolve the issue, and it will be a very interesting case.  And the votes that I would be watching are Justice Breyer and Justice Scalia, particularly, because I think if you can win--if either side can win both of those, they're going to win the case.  And I guess I could predict how I think they would come out, but I'll leave it to you.

MR.           :  What is your prediction?

MR. WARREN:  My prediction I think would be that Justice Breyer will vote with our side of the case, which is in favor of Internet wine sales, because he'll say this is crazy, the dormant commerce clause ought to apply here, this makes no sense from an economic standpoint, and people ought to be able to do this, and all this is is promoting a three-tiered sort of monopoly system, and there's no justification for it, it doesn't grow out of the policy behind the 21st Amendment.

Scalia is a little more interesting because I think the question is how he will construe the 21st Amendment.  I think the fair reading of the 21st Amendment is not a grant of authority to the states to do anything special, and, hence, I don't see why the dormant commerce clause doesn't work here as well.  On the other hand, he has hostility to the dormant commerce clause.  But a side can win those two votes, I think they'll win the case.  I still believe that.

MR. GREVE:  (?) you two have this fight over -- [tape ends].

-- can't resist one additional segue maybe we can sort of discuss later.  Consistent with Ed's discussion just now, I think, is the Scalia opinion that's not written in a boring ad law case, but in Hamdi.  One way of reading the Hamdi opinion, which is really striking, is to say, look, I've sat on a Court that's made up, you know, individual rights and due process left, right, and center for as long as I've been here.  And now in this case we actually encounter a right--or, rather, a writ that's actually in the Constitution.  And what do we do?  We suspend it.  It's entirely consistent with his earlier opinion with respect to the right to cross-examination.  What drives him in these cases is the same kind of formalism and insistence on rules that drives him in the administrative law cases.

Maybe I'm wrong here.  Maybe that's an unneeded segue because Viet was going to say it anyhow.

MR. DINH:  Thank you, Michael.  Frankly, I don't know.  I don't know where that Scalia came from, that opinion came from.  I'm still trying to puzzle it out.  My initial take on it was that, you know, just as Bob Barr, whom I love and respect so much, is now aligned with Nadine Straussen (ph) that he is so far right, he has come full circle to the left.  That was my initial thought, and you can see that not from a political perspective, from Justice Scalia's opinion with respect to the Fourth Amendment and search and seizures and the like, a severe distrust of the government, especially in surveillance and criminal cases.  Perhaps that is one explanation rather than a less jurisprudential and more spiteful reaction.

But I will not give you a list of cases that I will cover simply because I have read so many opinions and so many cases in the last 24 hours that I simply cannot in any way keep them straight.  So I will try to stick to the main, the terror trilogy, and the case that came out today, Sosa v. Alvarez-Machain, and talk a little bit about the Warsaw Convention case simply because that fits within my theme.

I will simply, I think, try to make clear what exactly the terror trilogy does and does not do, and then situate that into the relevance of international law, the increasing relevance of international law or transnational or foreign law into domestic jurisprudence, I guess what I'll flippantly call the new federalism, between national government and supra- or extra-national governments, and then talk a little bit about the sources of interpretation that is in this brave, new interpretive world.

What happened with the terror trilogy, I think we can leave aside Padilla fairly quickly because that was disposed on venue and jurisdictional grounds on where that case should have been brought, South Carolina not the Southern District of New York, because the commandant of the brig is the proper custodian, not Secretary Rumsfeld.  And so, therefore, the case would have to be refiled in South Carolina.

The whole of the opinion between the Hamdi and Padilla, therefore, the most interesting one is Hamdi.  Here it is first a little bit hard to count the votes because there is a four-Justice plurality finding congressional authorization for executive detention of enemy combatants, and then there are two additional votes, from Justice Souter and Justice Ginsburg, explicitly saying we are writing this concurring opinion even though we generally would not because we want to give an opinion as to what to do on remand.  However, I think that those two votes were not necessary because Justice Thomas would affirm in all respects.  And so the four-judge plurality would be the narrowest grounds for remand, and so really Justice Souter and Justice Ginsburg, it was nice to have their vote, but I'm not sure that the restrictions put upon those votes in the opinion would apply as a matter of interpretation and classic vote counting.  There are rules of vote counting that  (?)  and Grishman (ph) outlined much better than I can in their Supreme Court practice books, outlined a procedure for vote counting in this regard.  If you happen to be unlucky enough to be litigating these cases on remand, I think that book would come in very, very handy.

Now, everybody has been asking me the last couple of days, the last one right before we came on to this panel, at least Justice Stevens in the Rasul case put in his footnote 15, basically the government loses on remand, citing to a concurring opinion of Justice Kennedy, a CF(?) cite, which is highly dubious because they're still working on remand.  At least he told the court below what to do in remand.  What did Justice O'Connor tell people to do in remand?  And, you know, my quick rejoinder to that is you just don't know how to read O'Connor opinions.  It is an art that one has to consider.  I think this is one of the most candid, in terms of judicial candor, opinions.  She just lays it out there in terms of considerations that are going on in the Court's mind.  It's a very difficult question.  We're at a time of war.  But at the same time, the general norm is criminal justice procedures.  And she's not willing to go as far as Justice Scalia's dichotomy, that is, whenever you're dealing with U.S. citizens on U.S. soil, you only have one of two choices:  criminal justice charges, and the full panoply of Fourth, Fifth, Sixth, Eighth, and 14th Amendment Rights, or suspension of the writ of habeas corpus.  But the Justice says, no, we can't overrule Ex Parte Quirin.  After all, it was a unanimous decision, a longstanding part of our war jurisprudence.  And Justice Scalia--to which Justice Scalia says Ex Parte Quirin was not our finest hour.

And so you have a fairly clear distinction, and Justice O'Connor would follow this tradition and tries to work out the mechanism, accepting the plurality opinion as controlling for the law and, therefore, disregarding the concurring votes of Justice Souter and Justice Ginsburg.  I think there are fairly clear markers that are established.

First of all, one needs to make clear that even though Justice O'Connor uses the word "military tribunal" in the case and suggests that may be an avenue, she does not mean military tribunal in the sense of the executive order establishing military tribunal.  All of these cases deal with the military version of a probable cause hearing, not a military version of a trial, which is what the military tribunals seek to set out to do, an actual trial on guilt and innocence on conduct that is unlawful under the laws of war.

Here what the Court is grappling with is the military version of a probable cause hearing.  Is there sufficient evidence to categorize this person as an enemy combatant and has the person been afforded an opportunity to contest that evidence?  And so the Justices suggest, the plurality suggest that, yes, where there is--as long as it's impartial and properly constituted, the executive may well have such an impartial hearing in a military or executive hearing.  It need not be judicial in the first instance.

In that hearing, you can use hearsay evidence, and indeed you can even adopt a presumption in favor of the government, as long as that presumption is rebuttable and the alleged enemy combatant has an opportunity to present facts to contest such a designation.

Where that is the case that there has been a preliminary hearing, then it becomes a straightforward question of military/administrative law, a review of pre-APA administrative procedures.  And here the Court--the Justices, the plurality says fairly clearly, the "some evidence" standard may well work as a standard of review, perhaps a review of such a preliminary executive decision.  It does not work, however, as a standard of proof in this particular case because we are not asked to review and defer to some sort of executive or military process.  We're asked to find facts, in essence, in the first instance.  And so the "some evidence" standard does not work as a standard of proof, and the Fourth Circuit was wrong to rely on it and rely exclusively on the  (?)  affidavit as the quantum of evidence that was adequate in order to classify these persons as enemy combatants.

And so I think that's fairly straightforward.  Once you see that road map, I think that the question, the next question on everybody's mind is what practical import does this have on the war against terror on these particular individuals and on continuing prosecution of the war on terror.  I think fairly minimal because the Court simply established as a matter of law, not constitutional--actually, here constitutional law, established as a matter of law that which the administration has already announced and committed itself to as a matter of policy.  The midterm review procedures for the Guantanamo Bay detainees are fairly similar to what we're talking about here, what the Supreme Court laid out.  They would have to be, of course, applied to persons like Hamdi and Padilla in the first instance in order to qualify for this type of deference.  But then going forward, I do not see that it will be a great sea change.

Of course, it was a significant affirmation and removes significant ambiguity in the law when the Court preceding all of this recognized that the authorization for the use of military force also gives the President the power to detain enemy combatants.  It did not reach the constitutional question as to whether Commander-in-Chief power under Article II gives the President inherent authority to conduct such military detentions, so thereby leaving open the opportunity for Congress to come in and perhaps to push the envelope as to whether or not the President has such inherent authority in the absence of the congressional authorization.  I think that will be the next round of legislative, political, judicial actions that we can expect, assuming that Congress gets up the guts in order to enter this very, very complicated and politically fraught with danger area.

I think the less clear and the more dramatic, if unclear, decision yesterday was the Rasul decision, the question on Guantanamo Bay.  And the full implications of this will not be made clear until I finish all of my presentation when I talk about the Alvarez-Machain case, because you see all--the entire world according to Justice Stevens coming together, at least how I read his three or four separate opinions, and it does paint a fairly dramatic picture.

The ambiguities are, as Ben Wittes (ph) pointed out this morning in the Washington Post editorial page, is whether or not the Rasul decision rests primarily or exclusively on the lease agreement with Cuba, which gives exclusive dominion and control over Guantanamo Bay to the United States or whether it rests on broader grounds which would perhaps--perhaps overruling or limiting to its facts Johnson v. Eisentrager, which would have very dramatic, very significant implications on how we conduct the war on terror, how the U.S. Government treats high-profile, high-value detainees such as Khalid Sheikh Mohammed or even Saddam Hussein.

If read beyond the lease agreement with Cuba, I'm surprised that a lawyer is not going to file a habeas--a petition before Saddam is transferred back to the Provisional Authority because it would not be limited to areas like Guantanamo which are under the exclusive dominion and control of the United States but, rather, anywhere where the United States exerts governmental action to an enemy combatant is subject to habeas review.  That obviously has a very, very dramatic effect on the war on terror.  I do think that, properly read, it should be limited to the lease agreement of Cuba and the United States, but that remains to be seen--that remains to be seen on remand down below.

We start seeing, therefore, a pattern where we have the Court entering areas of executive decisionmaking.  It is fairly surprising in one respect because we're coming off a series of terms where the Court, with respect to the vertical distribution of powers between the Federal Government and the states, showing a strong affinity for the Federal Government, Cross v. Garamendi, saying, States, you stay out of this area because it's foreign policy, this is where the big boys play.  And, of course, when it comes to horizontal division of powers--and this goes back to one of Michael's points--the Court here is fairly aggressive in asserting its own role and the role of the judiciary in the process, even though it recognizes these are areas of diplomacy, areas of the military where the Court--where the judiciary traditionally accords some significant deference to the executive.

Which, of course, now brings us to the case that was decided today, Sosa v. Alvarez-Machain, the sexy dispute of Erie Railroad v. Tompkins.  The case is fairly straightforward, whether the ATS, the alien tort statute, provides simply for jurisdiction or whether it also provides a substantive cause of action.  With respect to that question, the Court says very clearly only jurisdiction.  It does not provide for a substantive cause of action.  What it does is provides jurisdiction for common law claims violating the laws of nation.  And it is undisputed that at the time of its adoption, there were three common law violations of international law:  breaches of--promises of safe conduct, torts against ambassadors, and piracy.  The big dispute is whether or not there is any opening for new torts beyond those three torts that were recognized by Blackstone at the time of the adoption of the ATS.  Justice Scalia was saying no, because the shift from universalism to positivism in American law and also the advent of the Erie doctrine means that there is no opportunity for federal courts to find new common law torts; whereas, Justice Souter in his word would put, "The door is ajar, but the judges will be very vigilant sentinels" as to who gets through the door.  And I think he makes fairly clear reference to the Torture Victim Protection Act and the Filardega (ph) case, implying that torture may be one of the things that is recognized of the same stature as those three torts were at the time of the passage of the alien tort statute for it to be recognized today.  And so torture may well do it, and very few, if anything else, would suffice.

Of course, then, it becomes--the question then becomes what does one mean by torture, and here I go back to the fact that yesterday in deciding Rasul, Justice Stevens, writing for the Court, did not only decide the habeas question, but also reversed on the alien tort statute claim, where the court below says, no, we will not entertain the alien tort statute claim, Justice Stevens reversed on that.  And Tom Goldstein in his website yesterday remarked that does this augur a result for one way for Sosa, presumably the tort statute provides for a substantive cause of action.

I thought not because they could have ducked the alien tort statute, the ATS question, certainly couldn't have come out the way that it does because that would recognize that there is no such cause of action.  But when one sees what the definition, quote-unquote, of torture is under Justice Stevens' conception, one sees how this makes perfect sense.  And to see what the definition of torture is, one has to refer to Justice Stevens' opinion, dissent in the Padilla case in which he has the opportunity--really, the only opportunity in all these cases to write freely without the constraint of actually getting a crossover vote.  And he says fairly clearly--let me just find it here.  He says fairly clearly that, "It is not justified by the naked interest in using unlawful procedures to extract information.  Incommunicado detention for months on end is such a procedure.  Whether information so procured is more or less reliable than that acquired than by more extreme forms of torture is of no consequence."

So it's fairly clear in that statement that Justice Stevens, at least in his mind, believes that incommunicado detention of potential indefinite duration, the exact conduct that is alleged by the Padilla and Rasul plaintiffs, constitutes a form of torture; that is, when you look at all of the derivation that is actionable under the alien tort statute, which is why it's internally consistent for him to remand on that in the Rasul case.

Of course, all of this opens up the question:  Now that we've opened up this great Pandora's box, what constitutes a common law tort under international law?  Even once we determine that, what are the contours of that tort?  What is torture?  One sees the interpretive problem once one opens up the interpretive Pandora's box, and to which I will return to the question, the case Olympic Airways v. Husain.  At issue was a fairly straightforward interpretation of the Warsaw Convention governing what torts are cognizable in aircraft--for airplane torts.  A person was sat three rows ahead of a smoking section who has a respiratory problem.  The defendant flight attendant surprisingly and unexpectedly refused to move the person, as a result of which he gets asphyxiation and dies on the airplane.  And the question is whether or not this is actionable or not, whether mere inaction, even though unexpected, can constitute an actionable tort under the Warsaw Convention.

Britain and Australia says no, signatories to the Warsaw Pact.  The United States says yes.  The majority of the Supreme Court says we will persist with our interpretation; yes, it constitutes a tort that is actionable under the Warsaw Convention.

Justice Scalia throws up his hands in dissent and says, What are you talking about?  Haven't I just sat through Lawrence v. Kansas?  Haven't I just sat through the execution of mentally retarded persons in which I was crying foul when you guys were using the extranational sources of interpretation like the Human Rights Conventions and what other countries are doing with their own domestic law?  Here we have one that actually would work because signatories to a common compact would presume to know what each other meant at the time that they interpreted it.  So here, if anywhere, you should be liberal in your use of non-national sources, but here you do not, elsewhere you do--which, of course, just leads us all back to the question:  What is a valid--once we decide that non-national sources of interpretation is valid in our jurisprudence, we have to decide what sources are available, what sources are legitimate, especially since in the Sosa case today, really for one of the few times I see in Supreme Court decisionmaking, since the classic dispute between the--in Bull v. Calder where you have a dispute on universalism or fundamentalism, if you will, versus positivism, where the Court says fairly clearly--where Justice Scalia's argument is that the shift in American law from universal norms of reason to positivism more of human choice should augur against finding common law.  As we integrate, harmonize, whatever the word is you want to--import sources of law other than United States, most particularly European sources, one has to face with the different intellectual traditions that define our two jurisprudence.  It is somewhat of a facile gloss, but I think there is some truth to the fact that European tradition, because of its ecclesiastical civil law traditions and also the experiences of the last war, tends to be more universalist in nature, and American law being the more Blackstonian and Scalia-like in its development tends to be much more positivist.  And at some point, we would have to face up to that issue just as Justice Scalia and Justice Breyer seem to have faced up to the formalist versus pragmatist differences that Ed has so competently commented upon.

MR. GREVE:  Thank you very much, Viet.

Before we move to audience questions, I want to give the speakers an opportunity to respond to each other and to make additional remarks.  And I just have two optional questions to which you all may want to, or not want to, respond.

Like Viet, I found one of the things that's particularly striking here is the sort of seemingly opportunistic respect for international law in some contexts but not in others.  I hadn't noticed the point that Viet made, but the case that brings the same phenomenon to mind is this Intel case.  So what's happening there is that one American company sues another American company over a worldwide conspiracy in the European Commission.  And the reason why it does that, rather than sue here, is that their law on vertical restraints is much, much more liberal and much more generous towards plaintiffs--or complainants, I should say, than Section 2 of the Sherman Act.

It then goes to an American court under a comity statute that we have to obtain documents in discovery that would be discoverable neither here, if the entire proceeding were here, nor in Europe under the European Commission's procedures.

Now, it turns out that the European Commission in this case files a brief and screams at the top of its lungs, Do not assist us, do not help us.  We are not the tribunal, in the sense of this underlying statute which is passed for assistance in foreign international tribunals.  And the majority opinion says--and this is almost verbatim:  The European Commission's averments with respect to its institutional status are entitled to no deference.

[Laughter.]

MR. GREVE:  Now, I am the first person to cheerfully believe that a European Commission by virtue of being European is entitled to no respect.  But it is passing strange for Justice Ginsburg to write that opinion, precisely for the reasons that Viet Dinh mentioned.  She is ordinarily a great fan for importing international norms and respect for international norms and bodies into American law.

The question that grows out of this:  Is this supposed to--I mean, is this discontinuity, that is to say, respect for international norms in sort of human rights cases, or whatever you want to call it, on the one hand, and disrespect for norms of comity, is that sort of discontinuity going to become a permanent feature of the landscape in years to come?  Or is that just a result of the quirky cases that happened to come up this term?

My second question is this:  Tom Merrill (ph) has this interesting observation that one of the facts that is--or one of the features of this Court that is truly remarkable is they have sat together in an unchanged composition for longer than any Supreme Court in American history.  What that means, among other things, is that they get much, much better, the individual Justices ought to get much better at predicting each other's opinions or votes in individual cases.  And what that means--what that explains, among other things, is the remarkable lack of plurality opinions in the general run of Rehnquist Court cases.  Plurality opinion means, by definition, somebody mis-guessed or guessed wrong at the cert stage.

Now, what you get in these foreign affairs cases, and particularly in the trilogy, is, as has been suggested, you need a flow chart to sort it all out and to count the votes.  And, you know, naturally, true to form, the Washington Post obliges.

So the question is, my question is simply:  What is that a function of?  That is to say, I mean, they just felt they had to take the cases, so, of course, they didn't go around--look around the room and say let's see how they shake out, and if I can't marshal a majority here, I'll vote to deny cert.  So this is a unique set of cases, or is there something else at work?  Maybe it's like votes of conscience in the British Parliament.  Once it comes to these truly important matters, party discipline is relaxed, or is there nothing to this at all?

Again, it's optional.  Whatever you guys want to talk about, go ahead.

MR. WARREN:  First of all, Mike, one thing you--when you talk about the Intel case, the very point that you're making, Justice Breyer's dissent says Chevron deference, CF Chevron is the way he puts it.  We should be deferring to what the European Commission has to say about its own body, whether it's a tribunal or not.  So at least he is consistent, I think, in that case; whereas, Justice Ginsburg is not consistent.

I don't know what to say about the--I think that the Merrill point is really a very important point.  This is a Court that has been sitting together, gee whiz, for so long, 11 years now I think, or is it 10?

MR.           :  '93.

MR. WARREN:  '93, yes.  Eleven years.  And I don't know, my judgment would be that this Court has become both more self-confident in the sense that they think all important questions they're capable of deciding.  I mean, they seem to be willing to take on anything and almost anxious to take on anything.  At the same time, I think they're very cautious about the answers.  In other words, I think that the O'Connor--I mean, the way I would--I think this is the way I'm interpreting your opinion, what you're saying about her opinion, her plurality opinion, is that it's sort of--it's really very tentative in the end.  It's sort of throwing it back and saying, okay, I've said there's jurisdiction, you guys go work out the rest.  It gives the administration, if I understand it, quite a bit of latitude in responding to what O'Connor is saying.  She's not really trying to decide much more than, okay, there's a day in court, but exactly what that means--I mean, you can structure it administratively in such a way as to foreclose most cases, I think.  So I think they're both self-confident in the sense they're willing to take on anything and really feel that they're more competent to take on almost anything than any other body, but at the same time cautious in terms of the outcome [inaudible].

MR. GARNETT:  Ed, you organized your remarks around sort of the fate of Justice Scalia's thinking, and this wasn't on any of our dockets, but I think the Court's Fourth Amendment cases and also the Sixth Amendment case that you mentioned, Michael, the confrontation clause case, suggests that at least in that area Justice Scalia's and also the Chief Justice's views seem to be really carrying the day.  I mean, in the Fourth Amendment context, you see this view that Justice Scalia has been embracing for a long time, namely, you know, look at the Fourth Amendment, it says searches must be reasonable.  It doesn't say there's a warrant requirement, look, look, look.  That view seems to be embraced with greater consistency than before.  In this term, my quick survey of all of the Fourth Amendment cases suggested to me that there was really a general move toward, among a whole bunch of the Justices, toward looking at the core requirement of the Fourth Amendment as being reasonableness, not a warrant requirement, with exceptions, but just reasonableness.  So maybe Justice Scalia can take some comfort there.

On your point about confidence, I was thinking about the Pledge case, which struck me as sort of weird in the sense that you had this, what struck me as an opportunistic invocation of strict standing doctrine by Justice Stevens, who I don't normally think of as caring that much about tightening the door in establishment clause lawsuits, to avoid deciding the question that I imagine they thought was going to be sort of messy.

Again, their unwillingness to do that seems out of character to me with what I think you're right to point out is their hubris in almost every other context.

MR. DINH:  Just a very quick note on the incrementalism that Ed talked about, or the hesitancy.  Charles Freed, I think, in 1995 in the foreword to the Harvard Law Review, the November piece, traces Justice O'Connor's--at least Justice O'Connor's incrementalism to a jurisprudential history of Justice Stewart and--Justice Powell, Justice Stewart, and Justice Harlan as this sort of incrementalist approach that I've heard some characterize much less charitably as Republican club conservatism, Republican country club conservatism, sort of like Eisenhower   (?)   let's not rock the boat too much, let's just defer this to the government a lot, but step in when necessary.

I think there is a lot of truth to that.  I'm not sure whether the Court is assertive across the board in a whole host of areas.  But I do think that it is quite assertive regarding judicial authority.  I think Marbury--when the Rehnquist Court ends, Marbury v. Madison will stand very, very strongly as one of the most often-cited opinions.

MR. GREVE:  We'll move to audience questions.  If you have a question, I'll recognize you, and there's a microphone.  If you could please wait for the microphone, and then for the benefit of our recordings here, identify yourself and your affiliation and mention whether your question is directed at any individual panelist or at the panel at large.

[Pause.]

MR. GREVE:  This is Todd Zywicki from the Federal Trade Commission.  Are you still there?

QUESTIONER:  I'm still here.

MR. GREVE:  Okay.

MR.           :  [inaudible] wine cases.

[Laughter.]

MR.           :  Before Todd takes the floor, I have to preempt him.  So Ed is absolutely right, there is this really, really interesting cert grant on Grantholm, the Seventh Circuit, Sixth Circuit case and a Second Circuit case.  And Todd, I'm sure, will have lots of things to talk about on the policy.  But on the law, it seems to me that Judge Easterbrook has crystallized it as clearly as possible and says the case involves a conflict between the dormant commerce clause, which is not in the Constitution, and the 21st Amendment, which is in the Constitution.  Once you phrase the question that way, it's not very surprising where the judge came out in favor of the 21st Amendment and not in favor of drunken debauchery everywhere in this country.

[Laughter.]

MR.           :  [inaudible] in a case where there was no discrimination, so it has a kind of a dictum quality to it.  It's rhetorically interesting because it's a way to make the case sound interesting, and it is interesting.  But I don't think it really decides the--he didn't decide the issue because if you don't have discrimination, then the dormant commerce clause is not invoked, so it's kind of a false lead-in, although it is--that's the way it starts.

MR. DINH:  Although one can argue whether the Indiana statute in place also had a discrimination element.  I think it does, but that's neither here nor there.  Suffice it to say that this is an extraordinarily interesting case because it is federalism, on the one hand, but then from my perspective not federalism at all, because you've got a clear textual constitutional question, and it's the question of how do you interpret the 21st Amendment, including Section 2 and the unadopted Section 3, versus a dormant commerce clause, a pro-national provision.  So it's fairly, fairly interesting.  It's only for parochial purposes that I'm interested in it because I'm getting paid.  So--

MR. GREVE:  Now that we have answered your question, do you want to ask it?

QUESTIONER:  Yes, I wasn't actually going to ask about the wine case, but everyone should read the FTC's report on Internet shipment of wine.

What I was going to ask about was both Rick and Ed both suggested that maybe five years or so ago there was a flowering of concern about rules on the Supreme Court, that they used to--under Scalia's influence or perhaps in the federalism cases, at least they gave the appearance that they were concerned about rules, neutral principles, that sort of thing.

There seems to have been over the past few years just a complete collapse both in actual application of rules or even pretending like they're going through the enterprise of judging according to such standards.  And I was just curious if anybody has any speculation on that, either doctrinally or from a legal realism perspective, whether what Mike suggests, is there a casualness about their interactions such that they don't care about rules?  Is it that they've determined that rules actually don't bind judges because they'll always find some way around it?  Is there any reflections on that?

MR. GARNETT:  Just really quick, Todd, I think an example of this kind of movement, at least that I've seen, is in cases where in the past we would have expected your sort of first-year law school version of strict scrutiny to be applied, say, in the Campaign Reform Act case this term, the Michigan cases last term, Davey v. Locke this term.  Davey v. Locke, given the facts on the ground, should have been strict scrutiny applied to the Washington policy.  And instead I think we've moved sort of wholesale away from any kind of serious version of strict scrutiny and toward this sort of sliding-scale kind of notion that I think Justice Thurgood Marshall used to advocate in fundamental rights cases.

Contrast Glucksberg where you have the Chief Justice trying to cabin substantive due process with this sort of fairly clear framework about fundamental rights means strict scrutiny and non-fundamental rights means rational basis and leave it at that.  And that's just completely collapsed, I think.

I think it's analogous toward the move that Ed was talking about away from formalism and rules toward sort of all-purpose judicial mushiness.

MR. WARREN:  I think it's a bunch of things coming together.  First of all, I think Chevron is a very interesting example of this, and so--and it's the one I know the best, and so it's easiest for me to talk about.  But for Scalia, Chevron creates this sort of Aristotelian architecture, and everything has its place and everything fits together.

If you read his dissent in Meade, you really see this because he says, Oh, my God, you know, what you're saying is an authoritative interpretation by the agency no longer holds sway in certain situations; here are all the horrible consequences that flow from that.

And I think a little bit of the problem is that Scalia has such an elegant rule-based world that he can't get a buy-in from the rest of the Court because they just say this is too rulebound and it's too intricate and too elegant.  So that is, I think, part of it, is just--and I think that Souter is really revolting against that, and Ginsburg as well.

Then I think the instinct of the pragmatist sort of result-oriented Steve Breyer, who really just wants to do wealth maximization, it seems to me--I agree with a lot of things that he wants to do.  But I think this gets in the way of that.

And then I think you have the incrementalism of O'Connor and you have the practical incrementalism of Rehnquist, who's willing--I mean, he's just trying to lead the Court and make sure it doesn't get too far afield.  It just seems like to me that it leads inevitably to standards and to a lack of predictability and an absence of rules.  And unless and until we get new blood on the Court and some sort of new steam behind this kind of movement, the rule-based world is going to increasingly be under attack.

MR. GREVE:  Before we move to Hadley Arkes, I do want to pursue this a little further.  You say before we get some new blood on the Court, but I wonder whether the last term in the overall analysis may not suggest that that may not be necessary.  The paradigm of the Rehnquist Court that we had for a long time, which was informed by both of these--I mean, the sort of social cases, right?--and, mind you, the federalism cases, was it's 5-4 or maybe 4.5 to 4, right?  And we know in advance--well, no, I mean, there will be one swing vote or another, and as Viet says, you don't know how to read O'Connor opinions.  Well, no.  It's an art form that's reserved for former clerks, and it's very, very highly paid for in this town.

[Laughter.]

MR. GREVE:  I haven't done any systematic study or I haven't looked at this, but my sense is that as those cases decline in frequency, in relative frequency, you know, you see more fluid coalitions.  And it's harder for counsel to sort of argue at one block or another or, rather, sort of take three or four Justices for granted and then angle for the fifth vote.  I think the cases are just not of that sort anymore, I mean, most of them.  And my prediction is if once the National Law Journal or whoever publishes these studies of how often who votes with whom, that will show much more fluidity this term, and it may--you may see more of that in years to come.

Now Hadley Arkes, now that I've unburdened myself.

QUESTIONER:  Hadley Arkes, Amherst College.  Actually, I'm sitting next to a former O'Connor clerk, and I think the last time she was lucid was when Nelson was there writing.

[Laughter.]

QUESTIONER:  This is for Viet Dinh.  You seem confident that the Hamdi opinion would not be that much of a strain, that the military right now, the kind of screening it does, might be able to provide the information that they require, though Scalia complains at the same time that you're reversing the burden of proof in these cases.

But in Rasul, Scalia was invoking the concerns laid out in Eisentrager, that you're going to be transporting witnesses and records, you're going to unseal these cases, reveal the witnesses, reveal things we really should be keeping under seal, and do this for 590 detainees.  I'm concerned.  Is this quite as manageable as you think Hamdi is?  And there's a second  (?)  about was just as Harry Truman called the Congress into session in his day to focus on things, I wonder whether it might be useful on a number of fronts for Bush to include this and say if you are really serious about this, you ought to fund it, let's put this up as a separate funding measure, or change the habeas statute on this to get us all clear on this matter.

MR. DINH:  You're absolutely right, and your question really pushes the practical import.  It's not the Hamdi and Padilla and other people.  It really is the Gitmo detainees where there will be much more practical import, including the necessary implication of the Rasul case is not only are the intake procedures subject to judicial review, but also the military tribunals being held in Guantanamo Bay would be subject to judicial review.

And so for the military tribunals that are ongoing now, the Australian and the like, they're basically in the same legal position as Quirin was.  They will get some sort of deference after the conviction is done, but it's clear that habeas, at least under Rasul, doesn't take a very big stretch in order to apply--to have habeas apply in order to context collaterally the decision of those military tribunals also.

You know, frankly, you're right, I do think that there is a lot of give in the joints, as Ed points out, because Justice O'Connor's opinion I'm sure very clearly and I'm sure deliberately leaves a lot of leeway in the executive, recognizes the need for security and admonishes lower courts to take these things into consideration, including confidentiality and the like.  I think it now, you know, is back to Jim Haines to try to comply with it.  He does have a hard job in interpreting, but I think there's a lot of leeway there.

It would not be costless.  There's no question it would not be--it will be costly.  But among the questions that she leaves open--which is why I think, you know, as a practical matter, we can work it out.  Among the questions she leaves open is at what point is there access to counsel.  She says very clearly access to counsel to Hamdi and Padilla on remand, but she makes very--she also makes very clear that it need not be immediate access.  And whether or not there need be access at all is an open question because Rasul, the plaintiffs there, the only thing they asked for was an Article V hearing, Article V of the Geneva Convention.  And those are fairly straightforward hearings.  And it seems to me whatever the Court intimates, it cannot be more than an Article V hearing.  Whether you call it that or not is a different matter.  But it's basically three military officers off the battlefield with some opportunity for the detainee to challenge the facts surrounding his designation, and whether or not that is sufficient to get into the "some evidence" standard of review in a subsequent habeas proceeding is for lower courts to decide.  But I think a fair reading of the Cavalley (ph) opinion would permit such a conclusion.

MR. GREVE:  We have another question.  Yes, sir?

QUESTIONER:  I'm Tom Curry.  I'm with MSNBC.  Professor Dinh, you mentioned at one point legislative action.  Do you think Hamdi and Rasul--that there is an opportunity there or need for Congress to do something to clarify the situation?  Whether or not it's likely to happen soon, in the next few months, maybe not, but maybe.

And the other, you said something about Justice Souter and his opinion in the Alvarez--the case that was decided this morning, a reference to torture.  Can you explain that a little more?

MR. DINH:  Yes.  The first one is nothing new.  You know I have been calling for congressional involvement in this area for a year or so.  It's a little bit of a bluff to Congress because, you know, it's highly unlikely that Congress will take the politically risky step of seriously considering legislation in this area, in the world of inter-branch dynamics and not knowing what will -- [tape ends].

-- for example, there's not much action being taken, partly because a legislative solution, while elegant in proposal, is quite hard to execute.  One has to recognize that whatever legislative solution cannot cross one of the goalposts, which is that you cannot provide any procedures that is greater than or arguably greater than the procedures given to military service personnel of the United States or their family when they go under a military tribunal.  And on the other side, you want to create procedures that would circumscribe somewhat executive discretion, but you recognize that you don't want to push the envelope and arguably get into inherent executive authority under Commander-in-Chief power.

I know that--I have had conversations with people on the Hill who are very--on both sides of the aisle who are very conscientiously trying to find solutions to these very intractable issues.  And I think that this decision will help them in crafting such a solution.  With respect to whether or not something is introduced before the election, that's a political guess.  But certainly nothing is going to be passed before the election.

With respect to the torture element, Justice Souter's opinion leaves open the door.  He says--his exact phrase is, "The door is ajar, but judges will be very vigilant sentinels" in creating new--or recognizing new common law violations of international law.  He does cite to the Torture Victims Protection Act as a congressional enactment in one specific area that authorizes the recognition of civil penalties for torture.  In addition, he cites to Filardega and other cases, suggesting that torture may well be an established norm of international law.  I think although the decision does not conclusively establish that, there may be nuggets in there to argue that at the very least torture should be one of the additional torts that should be recognized in addition to violations of safe conduct or torts against ambassadors or piracy, the original three recognized at the time of the passage of the ATS.

[Inaudible comment off microphone.]

MR. DINH:  Those are eventualities that are really beyond my powers of speculation.  I'm sure that there are very imaginative lawyers that really specialize in imaginative uses of the ATS, which is why this case is so closely watched by not only the human rights community but the business community, because one did not know where this line of cases would have led.  And so I guess the artful--the answer to your question is a no answer.  I hope I've been articulate enough in my inarticulation.

MR. GREVE:  Judge  (?)  ?

QUESTIONER:  Once the majority has done what it's done in Rasul, what is the basis for thinking that the scope of these remedies is limited to Guantanamo or any place in the world?

MR. DINH:  Hope against hope, I don't know, I--

[Laughter.]

MR. DINH:  You know, it's two halves of the--I really struggle, really, I mean, one-half of the opinion really reads as if Eisentrager is now limited  (?)  , in which case, you know, open up the court doors to KSM, Bin Al-Shib(ph), Saddam Hussein, anybody under U.S. custody anywhere.

And then there's a second half which seems to rely pretty significantly on the exclusive dominion and control.  And, you know, which half wins out in the test of time, who knows?  And I really--I do not know whether it is deliberately so, but it does remind--it does, you know, remind me of the drafting of Lawrence v. Kansas, which not only is decided, the discrete case, but a very good argument can be made and has been made in a number of fora that it constitutionalizes a requirement to recognize gay marriages, for example.  So, you know, sorry, Judge.

MR. GREVE:  I can't resist this observation, but the case that Viet Dinh just mentioned, the precursor to Eisentrager, Arns(?), there was a dissent in that case by Justice Rutledge, and the dissent was nominally written, of course, by Justice Rutledge, but his law clerk at the time was a young man named John Paul Stevens, who now had a chance to make good on that dissent.  What goes around comes around, and I believe we should watch the current crop of clerks very, very carefully.

[Laughter.]

MR. GREVE:  Further questions, please.

QUESTIONER:  Nelson Lund, George Mason University.  I want to follow up on a couple of Ed Warren's kind of synopses of the Justices, namely, Breyer and O'Connor.  If I recall correctly, you characterized Breyer as a wealth maximizer and O'Connor as an incrementalist.

Now, it seems to me that one could say that, well, they're both pragmatists, and so what I'd like to ask the panel, Ed or either of the other speakers, is:  Is it possible to articulate a meaningful distinction, a little bit more elaborate than that one, between the versions of pragmatism on which O'Connor relies and Breyer relies?

MR. WARREN:  The way I would characterize it, first of all, the way I see Justice Breyer is as a regulator.  And so, therefore, what he is looking to do is uphold regulations that make sense from a wealth maximization standpoint.  I take Brown and Williamson as kind of a good example of this, just as a case to talk about, because I think he thought that however difficult it was to kind of wend your way through the Food and Drug Act to reach the result that the FDA had reached, nonetheless, it made sense.  It was going to produce net positive benefits, and, consequently, he was prepared to defer to the agency for that reason, not because of Chevron or anything else.

And the way I see O'Connor is much more cautious, very much one step at a time, and very much not looking at sort of the broad picture but, you know, much more tentative in a sense, that this seems right to me in this case, but I'm not so sure so I sure don't want to write anything that reads more broadly than this case.  Whereas, I think Breyer is not unwilling to write more broadly because I think he thinks his conception of where the agency, for example, ought to come out will hold true and if they don't follow his lead, well, he can always vote the other way.  But I think, in essence, he has more confidence about a grand picture, and so, therefore, he has more of a--he has a different sort of jurisprudential approach, whereas I think O'Connor is really a chancellor.  She's really deciding a case at a time.

QUESTIONER:  Let me, if I could, just try to clarify my question because I understood that to be what you meant by your shorter statements earlier.  What I meant to ask was not confining oneself to the regulatory or business area, but is this something that holds true throughout their jurisprudence?  And in that sense, are they kind of internally consistent over a broad range of topics in the way that Scalia seems to be?  Do we see the same kind of consistency in Breyer and in O'Connor?

I could ask about others, but just to keep it--

MR. WARREN:  Well, I'll let some others speak to the question, but let me try to respond one more time.

I think Breyer, the answer to that is yes.  I think Breyer thinks through to the result and then works back to the rationale.  And I don't say that entirely critically because I think honestly a lot of times he gets it right.  If you take Geier as an example of that, I think he gets it right there.  He doesn't want to write too broadly, but I think in that case he gets it right.  And I think the result is sensible, and I think he thinks it's sensible and so forth.

I find myself less confident about--my reading of O'Connor was sort of--when I did one of these gerrymandering cases about ten years ago, I read everything that she did.  And up to about 1995 or 1996, I thought she was really very consistent in the whole race area.  And then all of a sudden, it just seemed like to me I couldn't follow it as clearly.

I think she's much more--she tends to give on the one hand and take away on the other.  I think of Sweetholme(?) with her concurring opinion in Sweetholme.  You know, it seemed to me that she was going along with the majority but trying to say, well, it's really not as open-ended and as broad as the majority is saying, and so, you know, she's trying to be cautious about broad reads.

Is that helpful?

MR. GARNETT:  I have a slightly different--maybe a dramatically different take on Justice O'Connor, and maybe it's a bit less charitable as well.

I don't see, I don't take her cases as being evidence of a tentativeness, but I guess more the opposite, really.  I regard her preference for endlessly pronged balancing tests as being kind of a power grab.  Her preference for these concurring opinions is not out of a genuine humility, out of a desire to preserve her option to step in and second-guess legislators at a later date.  She's not hesitant to point to grand, sweeping theories where they happen to be ones that originate with her.  The endorsement test, I mean, this has become part of the Constitution in her mind.  It started off as kind of an idiosyncratic measure of hers that's now occupied the whole field.  That's probably uncharitable enough.

[Laughter.]

[Simultaneous conversation.]

MR. DINH:  First of all, whatever you are, everyone in this room today, yesterday was a great day for O'Connor chambers.  I mean, I read the entire line of all the decision yesterday, Miranda all the way down, and said, Wow, today I am proud to be an O'Connor clerk, just because I read all the opinion yesterday, I thought it was great.

You see some of that, you know, from my perspective, coming from a law enforcement perspective, you tend to see some of that.  I think there are strands in Justice O'Connor's jurisprudence.  She tends to be like the Chief Justice, more statist, more deferential to police authority's powers and testimony and the like, and much less suspicious of official motives and motivation in that regard.

She obviously is very strong in the states right area, until recently.  We will mark off "until recently" for a more holistic explanation.  She is quite strong and quite clear in the areas of the 14th Amendment, until recently.  And we'll leave that as a general remark.  And I think obviously she is quite strong in the religion area.  It may not be the test that you agree with, but it happens to be the test that has won and withstood the test of not only majority but so far the test of time.

And it's very interesting, it is in the religion context in which she has perhaps the most clearly articulated jurisprudential test anywhere in her jurisprudence.  The endorsement test is the only place, if you recall her dispute with Justice Scalia in Levy Weisman, where she said you don't need a grand unified theory in order to do constitutional law.  And yet in that area is where she does really have the most unifying of these perspectives.

What about the carve-out that I said with respect to, for example, my--you know, Paul Clement and I always joke about the fact that I argued Hibbs   (?)  Nevada last year with the Family Medical Leave Act, and he argued the Tennessee v. Lane case.  And I said, well, Hibbs was--we won because it was very well argued.  And Paul Clement won Lane because Justice O'Connor changed her vote in Garrett(?).

But the point is I think that in recent years, as she--I think as she and other people on the Court, Justice Kennedy, for example, actually realized the fruit of their labor, either in endorsement, in federalism, or in other areas, in the 14th Amendment, they have the cautiousness of victors, if you will.  That now it is the law, you fight a lot harder when you're trying to change the law and trying to get it right.  But now that you have the responsibilities of government, now you're in the majority, I think it does augur a more--a greater sense of responsibility.  Whether or not it is a conscious effort to rein in their own jurisprudence is open to debate.  Whether or not it is a lack of fealty to the original principles likewise is open to debate.  But I think that there is that market change, both in terms of O'Connor and Kennedy in that regard.

MR. GREVE:  I don't want to reopen the O'Connor debate, but I'm institutionally obliged to point out that Justice Stephen Breyer has advertised his own views in no less than a publication by the American Enterprise Institute--or, rather, the Brookings-AEI joint center.  And what is interesting about that talk is it basically revolves around the question:  Why is it that when I, Steve Breyer, actually know what I'm talking about, I'm all alone in dissent?

And he traces that phenomenon to the fact that he is simply much more comfortable with economic modes of thinking than any of his colleagues, and so what that entails more or less is that when his colleagues, or some of his colleagues, at any rate, think that, hey, this is a case about money, so that's when Stephen is at his best, so let's follow him, then he can marshal a majority; whereas, if it's a case that seems one removed from the core area where you might sort of believe in all this law and  (?)  claptrap, you know, the other Justices peel away.

I wanted to point out that there is actually one area where Justice Breyer's views on these matters may come to matter a lot if at some point he manages to swing a majority of Justices, or at least a number of Justices with him.  That is the international stuff.  Stephen Breyer was the author of the Epi(?)   decision which is a very, very important antitrust case which we didn't much talk about, which is all about international comity.  He insisted on these views about international comity and the way to carve up the world and to compartmentalize decisionmaking in an increasingly interconnected world in his dissent in Intel, which is ostentatiously  (?)   and says what are the benefits of a rule that says we will provide assistance to a foreign forum that doesn't want the assistance to discover documents to which nobody is entitled under either country's procedures, and the answer, if the benefits are zero, the costs of the rule are very, very high, why in God's good name do we insist on this rule?

And there is a small--I mean, it's a four-page concurrence in the Sosa case, which, again, insists on an additional restriction in addition to the ones that the majority would clamp on these foreign proceedings.  In any event, he says, look, if foreign countries don't recognize these kinds of actions, we shouldn't do so either.  That's--I mean, the way in which we compartmentalize the world and create international harmony is not simply by agreeing on the substantive norms, but also by voluntarily in the interest of comity restricting our own reach.

That is something I think that flows quite naturally from his perspective on the world, and it's a little dismaying that he's finding so little echo.

Due to my loquaciousness, we have time for one more question, but only one.

QUESTIONER:  Dennis Coyle (ph) from Catholic University, and I'm thinking of a couple comments you made here, and I wanted to contrast them.

One is there's general agreement that there's a tendency toward incrementalism or wariness about general principles.  And I would just footnote, to some extent it's being going on since the mid-1970s or so in the retreat from the  (?)   scrutiny and so on.  It isn't just a unique and reason phenomenon.  But what's the consequence of this basically for the rule of law?  If we are sort of losing general principles that are understood in the application ahead of time, then do we really know what the law is until a court says after the fact?  And is that troubling enough?

And it seemed to me this contrasts, though, with your point about there are fewer plurality opinions, and at least the Justices are getting better at predicting each other, because that suggests then there is some kind of pattern that is at least known to the Justices, if not to the rest of us.  And I wonder if part of the answer to that is they have a sense what the outcomes will be, but are more clueless about the law that supports that.

That's for anybody.

MR.           :  You know, I guess I think that it's sort of not giving Scalia his due when he first came on the Court, because I do think that he is such a systematic thinker and is so clear about the value of rules that he actually had quite a bit of influence in the first ten years.  The whole debate about legislative history, he virtually won that debate.  Now it's maybe slipping away.
 He certainly won the Chevron debate.  I mean, Chevron became a very important decision because of Scalia and only because of Scalia, it seems to me.  And in a number of other areas, he took a doctrine--I think takings is a good example with Lucas, where--but, look, what he did is he took something that seemed--the whole idea of regulatory takings, it seemed to be unmanageable, and he wrote an opinion that commanded five votes.  Now, the problem is that he can't carry it forward.  But I think he does deserve a lot of credit for what he was able to accomplish by sheer intellect and persuasiveness and ability to write with clarity. I think he accomplished a lot.

[Inaudible comment off microphone.]

MR.           :  Right, exactly, because I think that his influence--I mean, this is what I'm suggesting, anyway, that his influence in this respect is waning.  And the question is:  Why is it waning?  And that, I think--I don't know the answer.  I don't think any of us know the answer.  I think, though, that the notion that these are nine people that have been sitting together for ten years has got something to do with it.  I don't know what it is.  But I think it is waning.

MR. GREVE:  Ladies and gentlemen, just outside this room we have procured w