Fifth Annual Supreme Court Review

June 29, 2005

Edited transcript prepared from a tape recording.

3:00 p.m.	Registration
3:15	Panelists:	Jonathan H. Adler, Case Western Law School
		Robert Nagel, University of Colorado Law School
		Neil Siegel, Duke Law School
		Nina Totenberg, National Public Radio
	Moderator:	Michael S. Greve, AEI
5:15	Adjournment

Proceedings:
MR. GREVE:  I am Michael Greve.  I am with the American Enterprise Institute’s Federalism Project.  As some of you know, we have been unmasked as the nerve center of the "Constitution in Exile," so welcome to Elba.

Before we begin, I want to say a few words by way of introduction.  We have this panel every year.  Two years ago, we had equally distinguished experts to discussion the then-concluded term, and none of them, let alone me, could make any sense of the Court's output.  We all agreed that this is a court that throws its weight around, sometimes in a conservative, sometimes in a liberal direction.

We had the same panel last year and the same consensus last year, and while I neither want nor can predict today's outcome here, I think it is safe to say that clarity of purpose was not the hallmark of this term.

What explains this erratic behavior, this consistently erratic behavior? most people say, "Well, the composition of the Court." Of course, there is a great deal of truth to that, but I want to speculate briefly about a different possibility, and that is that whether this activism is in the nature of the game now.

Start with a traditional account of the Constitution, which runs something like this:  what protects citizens is the structure of government, not so much rights on parchment.  Federalism, the separation of powers and so forth, are supposed to discipline government.  Of course, there are also rights, but they are woven into the general structure, and it is striking how many times in the Constitution the text actually protects people against one level of government or another, but not against all.

The Contract Clause applies only to the states, not to the federal government.  Conversely, the Takings Clause bars uncompensated takings by the federal government, but not by states, at least in the traditional view and so on.

Now, the modern view is to ignore all of that and to make rights hold against government, period, government in general.  The Bill of Rights has been incorporated against the states, and the Equal Protection Clause has been reversed, incorporated against the federal government and on and on.  I think the move toward rights is related to and necessitated by the fact of demise of structural constitutional protections.

As we all know, the New Deal unleashed the federal government in, for instance, Wickard v. Filburn, which was reaffirmed dramatically this term.  The New Deal also unleashed the states, and once you have an unstructured government like that, you basically have to universalize the rights.  They are the only protection that the citizens will get.

Now, it turns out--if you think about it that way--rights aren't a precise substitute for structural protections because they operate with very different institutional effects. Let me mention three of those.

The first and most obvious effect of the move from structure to rights is that courts play a much more formidable role.  They are the bulwark against a government that is otherwise omnipotent.  So naturally the court will look very activist in that environment.

Second, the Supreme Court will look very constituency-oriented.  The structure is basically neutral with respect to constituencies.  If you enforce the Commerce Clause, you end up protecting dope users one day and Halliburton the next.  You cannot have one without the other.

On the other hand, rights usually have a constituency.  You know in advance who the beneficiaries are, and you can tailor the rights to their demands.  The modern First Amendment, for example, was tailored to empower civil rights groups and other disenfranchised groups without affording similar protection to the powerful, for example, employers.

Third, that sort of mimicking of political results works so long as the Supreme Court is quite confident about who its friends are and so long as those constituencies are unquestionably the good guys; but when the Supreme Court loses track of its constituencies and when it is no longer clear who the good guys actually are, the rights doctrines come under enormous pressure. The different trajectories of Brown v. Board and Roe v. Wade, respectively, illustrate that point.

When the Court then responds to the more fluid political environment by intervening sometimes in this direction and sometimes in another, it won't look impartial or principled.  It will look simply heavy-handed and erratic to everyone: witness the Rehnquist court.

The implication of that little diatribe is that perhaps for the near term, we may have to live with an erratic and activist court; and all we can influence is the direction in which it is going to be activist.

On that cheerful note, let me introduce our distinguished panel today.  We will start with Bob Nagel from the University of Colorado Law School,  author of a terrific book on the implosion of American federalism.

We will then go to Jonathan Adler, who has written extensively for both scholarly and journalistic publications on matters ranging from environmental protection to the Commerce Clause to takings.  He teaches at Case Western Law School and will be teaching at George Mason University Law School this coming term.

Nina Totenberg from NPR, we all know. We are particularly grateful that she has agreed to join us because, as you might imagine, these are very busy days for her, and she will have to leave prior to the conclusion of this panel.

We will conclude with Neil Siegel from Duke Law School.

On that note, we start.  Bob.

MR. NAGEL:  Everybody always says that dissenting opinions are more intellectually vigorous and interesting than majority opinions. I thought that was more than usually true with some of the major cases from this last term.

In fact, I think that if you compare the dissents and the majority opinions in these cases, you see a consistent type of difference between them. I want to give you a little sense of what I mean by that.

It is worth thinking about the differences because it helps to explain one of the more puzzling aspects of the Rehnquist Court's conduct in general, which is the emergence of the doctrine sometimes called "judicial sovereignty." That is, an enhanced tendency for the Court to monopolize the role of constitutional interpreter.

In an effort to get at that more ultimate puzzle, let me talk about some of the cases very briefly.

In Kelo v. New London, Justice O'Connor's dissent made a convincing argument that the majority position essentially eviscerates all limits on the idea of public use. She takes the two limits the majority proposes.  One is the distinction between public benefit and purely private benefit. She says that in economic development takings, the private benefit and incidental public benefit are by definition merged and mutually reinforcing. I think that is a potent point.

The second proposal advanced by the majority for a limit on public use is the motive that went into adopting the economic development plan. She asked--I think very sensibly--if it should matter what inspired the taking in the first place, since it has no bearing on whether there will be a public benefit. I think that is true.

Justice Thomas also has a strong dissent.  He makes a sustained textualist and originalist argument that the Court has essentially replaced constitutional text, that is, “public use,” with an entirely different concept of “public purpose” or “public benefit.” He is bold enough to call for revisiting all the public use cases.  He says that this is appropriate when "constitutional principle clashes with a line of unreasoned cases wholly divorced from text, history, and structure of the founding document."

By way of contrast, the majority opinion I is convincing only in its treatment of the precedent that Justice Thomas wants to revisit.  To simplify, there is something obvious but profound going on between the dissenting and majority opinion. One way to put it would be this:  The majority is being accused of elevating its own decisions and its own doctrines over the authoritative document that is supposedly being interpreted.

To take another case, the Granholm v. Heald case, Justice Thomas offers a strong dissent. Again, a very potent textualist and originalist argument that the plain meaning of the Twenty=first Amendment authorizes states to discriminate against out-of-state liquor.

Again, the majority position relies almost entirely on a line of recent cases that, as Justice Thomas points out, reflect the same preference for an expansive dormant Commerce Clause that prompted the 21st Amendment in the first place.  To oversimplify: precedent supersedes the Constitution.

In Gonzales v. McCleary, Justice O'Connor's dissent makes powerful criticisms of the way the majority trumps Lopez with Wickard, and also of the majority’s expansive definition of the adjective "economic."  She is right, I think, for as we all knew before Lopez, to suggest that a private activity affect the demand for market goods essentially draws no limiting line on the commerce power at all.

Justice Thomas' dissent argues that to allow the federal regulation of marijuana, as he puts it, "that has never been bought or sold, never crossed state lines, and has no demonstrable effect on the national market for marijuana" means that the federal government no longer is one of limited and enumerated powers.  I think he is essentially right in this.

By way of contrast, the majority relies on Wickard v. Filburn and a single line in Lopez. Again, the text in the cases is elevated over constitutional principles and understandings.

Going to Roper v. Simmons, and a very different subject, death penalty for juveniles, Justice O'Connor's dissent makes some very insightful points.  She says that the majority is wrong to go from the fact that juveniles are less mature and less culpable than adults to the conclusion that they cannot be sufficiently culpable to warrant the death penalty.  I think that is a devastating point to pages and pages of the majority's opinion.

Justice Scalia's dissent is a devastating critique of the majority's evidence for a national consensus on standards of human decency as well as the majority's explicit subordination of objective evidence about that consensus to its own judgment.  I think you would be hard-pressed to find any plainer example than the Roper case of the Court substituting its own authority for the authority of the Constitution itself.

As for the Ten Commandments cases, I will say a couple quick things.  In the Texas case, Justice Thomas has a concurrence that gets down to fundamentals when he says that the reasonable observer standard does not protect the sensibilities of real people on either side of the dispute because the reasonable observer does not conform to any human being except the Justices of the Supreme Court who are deciding the case, and he is bold enough to propose that the Establishment Clause does not apply to the states and that the Court should adopt the original meaning of "establishment" which he claims requires some form of coercion. In short, he urges the Court to abandon long-used and relied-on doctrines in favor of the meaning of the original document.

In the Kentucky case, Justice Scalia offers a very effective argument that according to original understanding, the government can endorse or favor religion.  In other words, it is a blunt, strong attack on the oft-cited doctrinal requirement of governmental neutrality with respect to religion. It is very straightforward and has a great deal of evidence to support it.  He says nothing stands behind the Court's assertion that the governmental affirmation of society's belief in God is unconstitutional except the Court's own say-so. That I think pretty much sums up what I have been saying about all of these cases.

What you really have is a struggle between dissenters who, for the most part, are trying to find some authority independent of the Court's opinions and a majority that is persistently interpreting the document as if it were the same as and indistinguishable from the Court’s own prior opinions and verbiage.

How might this set of observations bear on what I refer to as "judicial sovereignty" at the outset?  It seems to me that descriptively, a majority of the Court conflates the Constitution with the Court's own decisions.

This helps to explain the emergence of judicial sovereignty because, to the extent that constitutional interpretation is not about some meaning that is external to judicial decisions, it necessarily follows that no other branch or level of government can have opinions that are relevant to establishing constitutional meaning.  They can't because the meaning is wholly contained within judicial opinions.

Also, to the extent that the constitutional interpretation by the Court is, as I have tried to suggest, increasingly solipsistic or self-referenced, the Court's moral authority is jeopardized.

The Court is, in this term and in other terms, increasingly separating itself from the authority of the document. It is also separating itself from widespread understandings and practices that reflect the meaning of the document.  It relies instead on its own language and opinions, which are frequently empty or incoherent, even by the majority's own admissions. Under that circumstance, it seems to me quite natural that the Court would find that the opinions of other branches of government about constitutional meaning would not only be irrelevant, but also deeply threatening.

MR. GREVE:  Thank you, Bob.

Jon.

MR. ADLER:  Thank you, Michael.  It is a pleasure to be back.

I have a confession to make up front: I go back and forth—and some of you who have read some of the things I put on National.review.com’s “The Corner” recognize that I go back and forth—on whether or not federalism is alive and well, is hiding, or is on some life support and dying.

I am going to start my remarks by explaining a couple of the reasons why I am trying to remain somewhat optimistic that federalism is at least potentially vibrant, despite some of the cases of this term and last term, and that there is still much in the Court's cases to work with in the future to further both limit the scope of the federal government and expand state autonomy.

I think it is very easy to over-read cases when they first come out, though the implication of cases often isn't understood for quite some time.  In the context of federalism, we have seen premature obituaries many, many times.  Certainly, the New Deal could have been the premature obituary for federalism, but we saw a revival in cases like National League of Cities.  National League of Cities was overturned in Garcia and once again an obituary for federalism might have appeared. But then we got cases like New York,  Lopez,  Seminole Tribe, Printz and so on.

While Raich from this term and cases like Tennessee v. Lane may suggest that this federalism revolution, if it ever existed, has been lost, I am not entirely convinced of that.  I think there is still contested terrain, and even were there to be no retirements on the current Court, there is still some reason to believe that the trend of cases like Seminole Tribe, Lopez, and the like could continue.

Now, this is obviously a difficult endeavor because there are clearly four justices on the Court that are opposed to all of these lines of cases and are willing to overturn any or all of them if given the opportunity.  Holding five together to build on or expand these cases is difficult to do because the five justices that have been the majority in these cases don't share a consistent view in terms of why these cases are important, in terms of why enumerated powers, for instance, is an important doctrine.

The coalition in favor of limiting the federal government is inherently unstable.  If there will still be a federalism revolution, it will be a long, tough slog.  So that is one reason to be guardedly optimistic, but, of course, when you read cases like Raich v. Gonzales, that optimism disappears.

I want to say a couple of things about the medical marijuana case.  First, at some level, it was an inevitable case because, in the Court's Commerce Clause cases, there had been an underlying tension with how to deal with challenges to federal statutes that the Court had never really addressed, and that is with how to deal with the challenges: facial or as-applied challenges.

Morrison and Lopez were both, by their terms, facial challenges to federal statutes.  It didn't matter that Alphonso Lopez was carrying a gun to school because he was a courier in an economic transaction.  The law in question had nothing to do with his purpose.  It merely was a law prohibiting possession in or near a school, and that clearly wasn't economic or commercial at all.  The law could be challenged facially.

That is easy to do with small, narrow, symbolic legislation. But if you are talking about something like the Controlled Substances Act or the Endangered Species Act or any piece of large regulatory legislation that doesn't have a jurisdictional element that allows you to cut off the economic incidents from a non-economic incidents, you either need a court that is willing to swing an ax through whole sections of the U.S. Code or you need something other than a facial challenge.

That was one of the things that the Court was faced with in Raich.  The Ninth Circuit had issued several opinions trying to find a way to uphold as-applied challenges—the medical marijuana case, the case involving a homemade machine gun, and a case involving homemade child pornography—saying, “well, these are separable classes and we don't have to deal with the entire class that is regulated by the statute, we can cordon these off and deal with them in an as-applied fashion.” But there never had been a successful as-applied Commerce Clause challenge, and since the Court really hadn't set down doctrinally how one would deal with an as-applied challenge successfully, how one might define a class in terms other than are defined in a federal statute, you were inevitably going to have a case like this in which Wickard came back and upheld the very broad assertion of federal power.

That said, I think Raich on its terms is distinguishable from a lot of other potential cases that could come up, distinguishable from cases, say, involving the Endangered Species Act or involving other federal statutes.  The problem is that we are unlikely to see those cases for quite some time.

The Court denied cert in the various ESA cases, Rancho Viejo and GDF Realty, denied cert in all of the wetlands cases trying to revisit some of the issues that were dealt with a few terms ago in the Solid Waste Agency decision, it GVR’d, the Klinger case.  The Court has, at least for next term, made pretty clear it doesn't want to talk about these Commerce Clause issues.  So it is not going to be distinguishing Raich from other Commerce Clause cases the next term, by saying perhaps that a commodity represents a different type of case than, say, an arson.

Given that the Court hasn't expressed an interest in hearing these cases, it is very unlikely that lower appellate courts are going to tee a case up.  As a practical matter, the Court is far more likely to take a Commerce Clause case if a circuit court has struck down a statute or struck down the application of a statute than if it upholds it.  That is what happened in both Lopez and in Morrison.

As Glenn Reynolds and Brannon Denning have shown with the exception of these three cases from the Ninth Circuit, the federal appellate courts have been fairly uniform in their unwillingness to take the next step in striking down a statute on Commerce Clause grounds.  So you are not going to have a case teed up.  So, if Raich is distinguishable or is to be distinguished from other scenarios, that is not something we are going to see in the near future.  That is one of the things I think about when I am more pessimistic.

There are a few things to look in terms of next term to look for related to that.  One is that while enumerated powers federalism is on weak legs, federalism as a canon of statutory construction or something that influences statutory construction may well be alive and well, and that will certainly be front and center in the Oregon case.

I think it is important because if the political safeguards theory (which some of us thought had been put to bed and put to rest) is the dominant way of viewing federalism cases, that is to say the political process is the primary way we protect federalism values and the primary way we protect a state's interests, then something like a clear statement rule has to be a vibrant check on the expansion of federal power. If the federal government is, for example, going to for the first time start running around defining what is and is not acceptable medical use, and to contravene state determinations along those lines, presumably it should be done with Congress' say-so and not through the administrative process.  That is certainly something we might see next term.

We didn't really see much in terms of sovereign immunity this term, but next term, we get a chance to see what Tennessee v. Lane means.  We get a second shot at the Hood case, whether or not Congress can use Article 1 to abrogate sovereign immunity.  Under Seminole Tribe and the following cases, we assumed the answer was no, and the Court has taken a case for next term where it is going to revisit, that looking at the Bankruptcy Clause and whether or not the Bankruptcy Clause can abrogate state sovereign immunity.  If the answer is no, then the doctrine of sovereign immunity is alive and well post Lane.
   There are two consolidated cases involving Title 2 of the Americans with Disabilities Act, which will also test the scope of Congress' ability to aggregate state sovereign immunity under Section 5 of the 14th Amendment, and those will be important tests that we didn't see this term in terms of what is going on with sovereign immunity.

The last point I wanted to make--and I think this is very clear at the end of this term--in terms of state autonomy or the states' ability to go their own way, we see a very different treatment of economic matters from what we could characterize as social or moral matters.  While we may not see this consistently in individual Justices, the Court as a whole clearly is far more willing to let states go their own way in economic matters. In, for example, the three property rights cases this term, the property owners lost in all three.

Doctrinally, I think that the Court was probably right in those cases, but one implication in those cases is that states have more flexibility in how they deal with property rights and economic regulation.  Certainly, the Dow preemption case is in line with that.

But when it comes to moral and social issues, we see something quite different, whether it is Roper v. Simmons, whether it is the Ten Commandments cases.  We see the Court far more willing to say that different strokes aren't for different folks when it comes to these sorts of questions and, in fact, there must be a single national rule and it will be a national rule given to us by the Court, including precisely how many other monuments relating to other historical matters have to have been sitting next to a Ten Commandments for how many years before it suddenly is transmuted into something sufficiently secular not to violate the First Amendment.

That is a division which in many ways is very unstable.  It is a division that the Court will revisit next term in looking at the New Hampshire parental consent law, but it is very unstable in part because regional differences and personal views about moral and social issues are certainly far more intensely held than those about economic issues.

In many cases, the arguments for national diversity and allowing communities to go their own way are that much stronger in the context of moral and social issues, and the Court seems to be in these last few terms approaching these things in a backwards way, ignoring the fact that communities have very different values and moral preferences, but willing to let them go their own way in economic matters even if, as we see in some of the preemption cases, that allows states to take small steps towards balkanizing what would otherwise be a national economy.

MR. GREVE:  Thank you very much, Jonathan.

Nina.

MS. TOTENBERG:  I am in way over my head because they are all scholars and I am not.  Let me just ask you a quick question; do you think that Justice Scalia's vote in the marijuana case sets him up to vote differently than perhaps other states' righters might in the Oregon death with dignity case?

MR. ADLER:  I would say, “No,” because I think the death with dignity case is separable as a statutory interpretation case.  It is really a Gregory v. Ashcroft-type case (or at least it would be very easy for the Court to deal with it that way).  The Court could focus solely focus on Congress’s lack of explicit direction to the Justice Department to do this. Until it does, Oregon gets to define "medical practice" the way it wants.

MS. TOTENBERG:  I come not to praise or bury Caesar here, but just to make a few observations, some of which may make me look stupid because I didn't go to law school.  I approach this all with a certain level of knowledge after a lot of years of covering the Court, but there are limits to it.

In regard to what has already been said, it does seem to me that, at least in modern Supreme Court jurisprudence, there is a difference in the way the Court has treated so-called "individual rights" versus property rights. Property rights have largely been viewed in the context of just compensation; that is, you get paid for your property if the Government takes it from you, not that the Government can never take it from you.  At least--again, in modern jurisprudence--the framers were not focused on so-called "public uses" as much as they were on just compensation.

As wide open as this area has been over the years, it does seem to me that while there is a certain level of flabbiness in the Court's opinion in the Kelo case, there are at least some things that lawyers can probably take and will take and try to use. After all, Justice Stevens says at one point, "You can't just take somebody's home to put a Wal-Mart there because it is going to provide more tax revenue." If I were somebody's lawyer, I would use that.  There are a lot of places where they do just that, and I would use that.  They are very general, and they are hardly fleshed out. If I were a property rights advocate, what I would be trying to do in the next 10 years is flesh those things out. I would bring some good fact-specific cases in the old sort of Ginsburgian way, so I could get myself some rights I didn't have before.

It has struck me that these ten opinions in the Ten Commandments cases that we all have written so many reams about and probably will continue to--I am not sure about this because we live in different times than we did 20 years ago--but if you look back about 15 or 20 years ago, there were a huge number of crèche cases in front of the Supreme Court. Then the Supreme Court decided the Lynch v. Donnelly case from Pawtucket, Rhode Island, involving a crèche that was in a public square, and that led to what has laughingly been called the "plastic reindeer test."  If the crèche is surrounded by other indicia of the holiday spirit, as in the plastic reindeer and Santa Claus, it is not a religious display, it is a holiday display, and it is okay.

After that was that there continued to be crèche cases, and there still are today, but they are largely decided by the lower courts without too much of a huzzah about them, and they have not come back to the Supreme Court.

There is a sort of a factual framework for judges to look at these things in, although we made a lot of fun of them in the 1980's when the Court came up with the plastic reindeer test, and we have made a lot of fun of some of what is in Justice Breyer's opinion this week.

I suspect that the test will be relatively innocuous: has been there quite a while and nobody has objected? Is there other stuff around it that is not overtly religious? And does it pass the smell test?  If it passes the smell test--and everybody's smell test is a little different, but there still are parameters--I don't think these cases are going to come back to the Supreme Court for quite a while.  There are going to be a lot of them and there will be different smell tests, but they are not going to be dramatically different.

As I said, the caveat is we are in a lot nastier and more volatile times than we were 20 years ago in terms of religion and religion cases.

On the question of federalism overall, I think one of the problems for the federalists, as it were, is that we again live in very different times.  The post-9/11 time makes much more difficult for those who are advocates of states' rights.  I would suggest that even the gun control stuff might have come out differently had it been post 9/11.

Obviously, there are edges of this, but I think it really gave those who support a strong central government and federal preemption an enormous tool when we started worrying for our very lives and safety.

Now, I wanted to talk just for a moment about the personalities a little bit on the Court.  I suppose, as one professor I was talking to today suggested, this Court is a little bit like an old married couple—they are used to each other's idiosyncrasies.  They can live with them.  They manage.  They get along, and their old fights are less vituperative than they used to be, perhaps.

I still think that the Chief Justice will likely retire at some point.

When Justice Kennedy testified before Congress, he quoted Justice White as having said to him, "When there is one person that changes on the Court, everything changes," and Kennedy said, "I don't know why that is, but it really is."  And I suspect that will be true, even though the actual ideological line-up may not change overall.

Looking at the Court for the moment, I think that in the last few terms, Justice Stevens has been the powerhouse, whether you are looking at Kelo, Raich  the affirmative action cases, or Lawrence v. Texas.  No, he didn't write those, but he assigned them, and there is something to be said for a non-selfish assignment power as well.

When I had, along with Linda Greenhouse, the exclusive on the Blackman papers, I spent a month with Justice Blackman which is maybe 20 days too long.  If I took one thing away from that experience, it was the realization of how important Justice Stevens is as a justice behind the scenes. I will give you one example of this and then I will shut up.

This goes back already 15 years at the time of the Casey decision.  Justices O'Connor, Kennedy, and Souter circulated their opinion upholding, as they put it, "the core of Roe.”  It was an opinion for just three of them, but it was Stevens who—within 24 hours is my recollection—sent a memo to them.  It was not a fawning, obsequious memo.  It was just a complimentary memo on what a good job they had done and how interesting it was.

He had then numbered the paragraphs in key sections of the opinion and suggested that if they moved just a few of them around, he could join much of their opinion, and he supposed, correctly, that Blackman would as well.  That is exactly what happened.  They instantly moved those paragraphs around, and they had a Court majority for most of the opinion.  It was an incredibly clever piece of editing sort of done on a dime, and I think that that is the best example I can give you of somebody who is incredibly influential on this Court.

He dissents occasionally only for himself or one other person, but usually only when it doesn't matter, when he hasn't got a prayer of a majority.

MR. GREVE:  Nina, this was indeed a huge term for Justice Stevens.  He wrote the opinion in the medical marijuana case.  He wrote the opinion in Kelo.  He wrote the opinion in the preemption case, Bates v. Dow Chemical, which is really a monstrous decision if you are interested in those boring cases.  It really changes a whole lot, I think.

There is another important decision, San Remo Hotel, which is one of the property rights cases, which is of considerable practical--

MS. TOTENBERG:  Sounds lascivious to me.

MR. GREVE:  It is of considerable practical importance.  In several of these opinions, he really took what he could get, and he got an awful lot.

Now, conversely, on previous panels we talked about O'Connor the most and, my, has she had a bad term.  There are dissents in very important cases, several dissents, and the one that springs to mind is the dissent in Raich, the medical marijuana case.  That is really like a woman betrayed.  It is actually sort of an interesting factoid.

I will add to this.  What is the one case where Justice O'Connor voted "against women?"  The answer is “United States v. Morrison,” the federalism case involving the Violence Against Women Act.  This Raich dissent reads like, "I walked the plank for you guys.  I did that.  I went along with that, and now you do this to me."

If you look back over the more federalism-intensive terms, Justice Stevens wrote all these very harsh dissents for the minority.  Is this switch just a curiosity?  Is it the mix of cases that comes there, or has something else changed?

MS. TOTENBERG:  Well, first of all, if she is betrayed, the only person she is betrayed by is Kennedy.  She is not betrayed by the other four because they are where they have always been, but I think it was predictable.

I mean, she has been a states' righter always.  She is the only person there who has ever held state office.  She was the Republican leader of the State Senate in Arizona.  She is a rancher.  Why wouldn't we think that she is for property rights, for God's sake?  None of this particularly surprised me.

Perhaps Kelo did a little bit because she seemed more hostile in oral argument.  Usually, you can tell where O'Connor is going in oral argument if she talks, and she talked.  So that surprised me a little bit, but other than that, I don't think it is terribly unexpected coming from where she has always come.

MR. GREVE:  Thanks, Nina.

Neil.

MR. SIEGEL:  Well, I want to thank AEI and Mike Greve for having me.  I think it is a sign of the intellectual power and self-confidence of this place that they would have at these events people who don't want to join them in exile.

I do think Justice O'Connor was in dissent to a greater extent this term than last, but let us recall, she was also in dissent in very important cases last term, Blakely v. Washington, which was the prelude of the writings on the wall for the sentencing guidelines cases; and Booker and Fan Fan; the Newdow case, she wanted to decide the merits of the pledge controversy; Crawford v. Washington, a very important case about testimonial hearsay, which really changed the law and the Sixth Amendment.  She didn't get away in very important cases last term as well.

I want to say a word, too, about the Court and why this Court gets along so well.  I think something that people aren't going to be talking about when it comes to the Chief stepping down is that while Justice Stevens has a lot of power and influence on this Court and we see it being wielded, the Chief is also a great Chief Justice.

I don't mean in terms of being a Chief, the way he runs the Court, and the fairness with which he deals with all of the Justices—whether he signs opinions to punish people for voting against him, you don't see that.

I think a good part of the reason why this Court gets along so well is because he is so good at managing all sides. If you read Linda Greenhouse's biography, you cannot take as a given that the Chief Justice is going to be that skilled with dealing with eight very opinionated lawyers with their own methodological and ideological commitments.

MS. TOTENBERG:  Don't you think he benefited from following Burger, too?

MR. SIEGEL:  Yes.

This term was like the recent terms in some ways, but very unlike it in others.  You had 80 cases decided on the merits, including cert grants and summary reversals.

Last 5 years, OT '99 to 2003, you had anywhere between 77 and 81 cases decided, so this term was right within the typical bounds.  Twenty-five percent of those cases, 20 decisions, were five-four.  Over the last five years, it was anywhere from 16 to 30 percent.

The way in which this term is remarkably different is that the conservative majority of the Chief Justice, Justices O'Connor, Scalia, Kennedy, and Thomas were together as a group of five in only four of those 20 five-four decisions.  That is 20 percent.  In the last five years, it is anywhere from 45 to 65 percent of the decisions you have the conservative majority together.  I think you see a real difference now in terms of the coherence of the conservative majority. We will see going forward if there is another term they’re altogether, whether or not that maintains itself or whether there are important changes.

I think one useful way to look at this term is through the lens of different modes of constitutional interpretation.  Professor Nagel talked about some of them: the authority of the text, the authority of the original meaning, what he called widespread understandings and practices.  I would call that an evolutionary understanding or the constitutional authority of ethos or collective identity.  You can talk about the authority of the Supreme Court's doctrine, stare decisis, how it has previously decided cases.

I think you see in Roper v. Simmons, the juvenile death penalty case, the most explicit and unusually vigorous public debate between Justice Stevens and Justice Scalia over constitutional interpretation.  Justice Stevens joins Justice Kennedy's opinion, but he writes a one-paragraph concurrence, joined by Justice Ginsburg.

He says, "Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs the Court's interpretation of the Eighth Amendment.  If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment on the execution of a 7-year-old child.  The pace of that evolution is a matter for continuing debate, but that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text," and then he goes on to say that if Alexander Hamilton were alive today, he would be voting with us.

That is clearly a way of sort of sticking it to Justice Scalia who pens a vitriolic dissent. Scalia cites Hamilton in Federalist 78 saying, “You don't have to worry about the courts having the power of judicial review because they have neither force nor will, merely judgment, and he says we were talking about courts that were bound down by strict rules and precedence, bound down indeed.  What a mockery today's decision makes of Hamilton's words of solace to people who were worried about the power of the courts.”

There are a number of things that are very interesting here.  The first is, like I say, it is an unusually explicit and vigorous debate.  Usually, these debates are implicit, right underneath the text of what is going on.

The second is that when you compare both Justice Stevens and Justice Scalia in this case versus others, you see that they switched to very different modes of interpretation, without any sort of explanation.

So, for example, in the Raich case, the medical marijuana case, Justice Scalia writes a concurrence in the judgment in which he signs off enthusiastically on the majority's decision which talks about Supreme Court precedent but doesn't say a word about original meaning.

How exactly does that switch happen?

Justice Stevens talks about the original understanding of the 21st Amendment in the wine case. What is fascinating about Granholm v. Heald is that the oldest Justices on the Court are all in dissent with Justice Thomas, who cares the most about original meaning. I think those are the three Justices who were around, so to speak, at the time of the 21st Amendment, who understood what jurists at that time had in mind, how different alcohol was perceived then as opposed to now.

Now it is an article of commerce, just like any other.  This is the blatantly protectionist discriminatory statute.  What is the problem here?  Strike it down.  Well, the 21st Amendment.  Justice Thomas and the three oldest Justices on the Court were aimed at taking that power away from Congress.  The states were supposed to have the power over alcohol distribution throughout the country.

Why exactly is it that Justice Stevens is now all about the original meaning of the 21st Amendment when he agrees in his own opinion that the meaning of the clause or of the Nation's understanding of alcohol and commerce has changed.

Now, I am not one of these folks who believes you have to have one mode of interpretation that is ruthlessly consistent, no matter what.  I think different modes have different strengths in different cases, depending upon how clear the text is and how clear the history is, but I do wish that certain Justices were more theoretically self-conscious when they switch from one mode to the other.  They could at least offer an explanation for why they are beating their colleagues over the head for not being an originalist in one case and saying nothing about original meaning in another.

I do think Justice Thomas makes a real effort to be a principled originalist.  I also think Justice Souter in McCleary is making an earnest attempt to deal with original meaning.  He is saying Justice Thomas is making a very important point about the Establishment Clause, but there are others.  There is other evidence there that Justice Thomas is not talking about.

For example, President Jefferson wouldn't say the Thanksgiving Proclamation because he thought it was too religious.  What about that?  The original meaning is not as clear.  I think Justice Souter is a justice who cares about history, who cares about original meaning, but realizes that it is not as clear as sometimes other Justices make it seem, and also there is the independent authority of Supreme Court precedent, as he put it in that case.

So I think in sum, there is more talk than usual about constitutional interpretation this term, but I don't think we made much progress in terms of understanding why the Court or why certain Justices embrace one mode as opposed to another.  I would hate to think it is just a matter of what does the work one needs at the time to decide a case the way one wants.  I don't think that is necessary or inevitable, but I do think the Justices sometimes give us fodder for our ruminations if we want to be cynical.

I think there are unavoidable tensions between the medical marijuana decision and the Lopez decision, but that is because there are unavoidable tensions between Lopez and Wickard, and yet, the Court in Lopez embraced Wickard with both arms and said, "We are not overruling Wickard.  Wickard is good law," and I think Professor Nagel, shortly after Lopez was decided in a piece, "The Future of Federalism," really explained doctrinally, analytically, descriptively what is going on here, and you have got commitments to incompatible values.

On the one hand, we have a written Constitution in which there are enumerated limited powers.  It means something short of everything.  On the other hand, those enumerated powers are offered so broadly that it seems that Congress can regulate just about everything when you add the Commerce Clause to the Necessary and Proper Clause.

So what does the Court do?  Professor Nagel said that it engages in successive validation.  There are two horns of the dilemma.  So it holds one up in one case and another up in another case.

Now, I think that is a decent descriptive explanation, at least at a high level of abstraction, but normatively, I don't think that is satisfactory.  At the very least, you have litigants and you have lower courts that have to decide cases.  Just to say that there are two horns of the dilemma, take your pick, is not exactly the way we want to run a vast federal judicial system.

I do think that Raich is distinguishable from Lopez.  I think it is one sentence in Lopez.  The Court says that the Gun-Free School Zones Act is not an essential part of a larger regulation of economic activity in which the regulatory scheme could be undercut unless the intrastate activity were regulated.  That is Wickard, and I think that is Raich.

I think Paul Clement, the Solicitor General, makes really just a devastating argument in his rebuttal during oral argument in which he says, “Look, you have got California cases in which a guy caught with a ton of pot and a scale is arrested by the police, and he is claiming medical marijuana and these cases are going to a jury. How are we seriously supposed to enforce the federal drug laws when we have constantly got to be defending this kind of thing?”  I think there is a strong argument that, in fact, if you believe the war on drugs is okay and Congress has that power and there are six Justices who believe that, I think it is not easy to distinguish Raich and have it come out a different way.

What does this mean in the big picture?  Does it mean the revolution is over?  What I would submit is that there never was a revolution, and if you think there was, it is because you are reading Justice Thomas' opinion in Lopez and not Justice Kennedy.

Justice Kennedy says, "The history of the judicial struggle to interpret the Commerce Clause gives me some pause about today's decision."  This is Lopez.  He talks about the Court's limited holding, "The Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence," and then he distinguishes the Gun-Free School Zones Act, but he says you need five votes to have a revolution and you don't have them.  At most, you have got four, and Justice O'Connor signs his opinion in Lopez.

So we are going to go to a certain extent.  When the statute doesn't seem aimed at economic activity, it is not part of a larger regulation of economic activity.  That is Lopez.  I am not going to go along with the federal commerce power, but when you have got the war on drugs and the war on guns, that is okay and I am not going to go that far.  And it is not just Raich.

I can tell you every year, there are tons of cert petitions filed at the Court making really colorful arguments that federal drug and firearms statutes are unconstitutional in light of Lopez and Morrison, and the writs are denied with great dispatch.  There aren't very long debates dealing with them.  The Court has no interest in revisiting the federal government's power, its control over guns and over drugs.  I think there are at least six solid votes for the proposition that that is okay.

Next term, I think both the right and the left on the Court get to deal with the message they have created in the area of state sovereign immunity in Section 5.

In the Seminole Tribe case, the Court says even though we are dealing with the Indian Commerce Clause, there is no power to abrogate sovereign immunity under Article 1, including the Bankruptcy Clause explicitly.

Well, last year, the Court in the Hood case, they had the question can you abrogate under the Bankruptcy Clause, and they avoid it.  They say, “Well, this proceeding in bankruptcy is not really in adjudication, the state is not really being held into court,” even though it is.  They avoid the question.

Now they have to come back and decide if they really mean what they said in Seminole Tribe, and how, by the way, do they have a uniform system of bankruptcy if, in fact, the states can opt out of it.

Then the liberals, in what they did in Tennessee v. Lane, by having an as-applied Section 5 analysis, which is not an as-applied test, they don't really tell us how you define the context in which these challenges take place.  Why is it access to courts and not something narrower like physical access to court proceedings or something broader like all public buildings?  The Court seems to be able to define the right and the remedy, and I can tell you, the government doesn't really know what to do.  We will find out the answer, and hopefully soon.

MR. GREVE:  Thank you, Neil.

I will ask just one additional question, sparked by what Neil said at the outset about Justice Stevens' Roper opinion.  It is not the only opinion like that, that he wrote this term.  His opinion in the Ten Commandments cases is just like that.  It talks about democratic aspirations, saying, in effect, “Mercifully, we are not bound by the founders, we are just bound by the principles that they put on paper.”  It really sounds like Ronald Dworkin on acid.  It is the living Constitution, and it comes at a time when publicly that camp of the judicial debates has tried to domesticate the living Constitution and tie it down a little.  Judicial minimalism is one example of that tendency.

This returns to the very fundamental debates that we had 20 years ago when Ed Meese debated Bill Brennan.

My simple question is:  Is this still the same Justice Stevens who was appointed 20 some years ago?  Is this the Justice Stevens of 20 years ago, or has he changed?  And if so, what has pushed him?  What has driven him?

We will start with Bob.

MR. NAGEL:  Well, on Justice Stevens, I can hardly think of a more dispiriting, but accurate thing to say than to say that Justice Stevens is influential on the Court.

I went through and read, a couple of years ago, many of his constitutional decisions, and it is true that he, like others, has different methodologies for different cases.  Sometimes he is big on precedent, and sometimes he is big on history, but I would suggest to you that his default position, the position he goes to most often and most naturally, is a position that treats constitutional law as nothing more than a kind of ad hoc balance that the justices make in each case.

"There is interest on this side.  There is interest on that side.  I favor the interests on this side, and they win," is basically the way he writes most of his opinions.

I could put it more strongly: I think Justice Stevens doesn't go all this distance, but he goes very far towards ripping away all conventional sources of legal authority.  Of all the Justices, he seems most at ease with that.  In other words, “The law is what we say it is.  The Constitution is what we decide it is in any particular case,” almost as unvarnished at that.

While there is a tremendous amount of honesty in that and maybe some insightfulness in it, I think it is a very dangerous road to go down, and we are very far down that road because of his influence.

MR. ADLER:  First, on Stevens, on questions of federal power and state power, I think that is one of the areas where he has been more consistent over his 30 years on the Court.  There are areas like race, where from Bakke to the Michigan cases, there clearly was an evolution.

In terms of federal power and in questions like preemption, I don't think there has been that same sort of evolution.  Cases that would signal that kind of evolution don't come to mind.

I have just two other quick thoughts promoted by some comments on the panel. In terms of this whole federalism post-9/11 idea, I think the argument that, we need a very strong central government post 9/11 because we need this vigor and energy to deal with the threats facing us is actually a compelling argument. I admit I find it more compelling that post 9/11, we actually have a situation where our federal government can't afford to engage in frivolous exercises of authority to address things that the federal government really doesn't need to handle. The federal government needs to worry about our borders, needs to worry about terrorism.  It doesn't need to worry about whether or not Texas has the best policy to deal with gun couriers in schools or whether or not Virginia has the ideal liability system for gender-motivated violence.  It has things that only the national government can deal with, that it needs to deal with, and the more it fritters its attention away or its resources away on other matters, the less able it is actually going to be to deal with the things that we really needed to do.

MS. TOTENBERG:  But as you lawyers would say, that is a policy argument.

MR. ADLER:  That is a policy argument, and the fact that there is this countervailing policy argument would suggest to me that the Court at the very least should not deal with these questions any differently post 9/11 than it would have pre 9/11.

I am not going to present that all nine Justices are immune to these sorts of external effects, but I don't think that there is really a strong reason why they should consider them.

On the Lopez issue, I think, Nina, I actually agree, but I would spin on Lopez in whether or not there was revolution or not.

The Kennedy/O'Connor opinion in Lopez was hugely important.  Rehnquist's majority clearly was trying to align itself with Wickard, although I would argue by redefining Wickard.  Wickard meant something different in Rehnquist's hands than it had 50 years earlier, but that is why to some of us, Morrison was so significant because you didn't have the Kennedy/O'Connor concurrence in Morrison and you had this line that admittedly had a qualification in it saying we have never aggregated something that wasn't economic.

Now we have a situation where under our current case law, Alphonso Lopez—who was engaged in economic activity—his activity was not aggregated because the statute was not an economic statute, and the reason he was within the scope of the statute had nothing to do with his economic activity.

Angel Raich, on the other hand, who the federal government was willing to admit was engaged in non-economic activity and whether or not as a factual matter it was true or not, the federal government was willing to accept that nonetheless was aggregated even though the actual activity that put her within the scope of the federal statute was non-economic; that is, it was mere possession and use that put her within the scope, not some commercial component to it.

That, I think is a problem in terms of having coherence in the cases, and I think it really does raise a lot of questions about what Morrison was or was not doing, when I think we could certainly say, like other Morrisons, this Morrison was killed by drugs.

MS. TOTENBERG:  Nobody stays the same for 30 years.  Justice Stevens was appointed I think in '74, so it is 30 years.

I think in the civil rights cases and women's rights cases he wrote a concurrence in the opinion that said discrimination based on pregnancy wasn't sex discrimination.  I don't think he would write that, even without the Pregnancy Discrimination Act.  I don't think he would write that today as a result of having a lot of women law clerks, among other things, since then.

Overall, I can't escape the notion that he was in the 1970's considered a sort of moderately conservative Republican judge, and that that kind of judge is not a Republican judge today.  There are very few of those people, that kind of person who was nominated by Republican Presidents since and including President Reagan, unless, of course, there is a very powerful Senator who has an interest in it and that person was their campaign manager or something like that.

I think the center of the Court has clearly moved dramatically to the right and he is now on the far left of the Court.  Yes, he is a little more left than he was before, but I don't think that if you looked at the biggest picture. I think the one place he has been very consistent is in his view of when and in what area states have rights and don't have rights.

So I am a little bit agnostic on it, but I don't think his change has been huge.

MR. SIEGEL:  My view is essentially the same, with some qualifications.  I think structure versus rights captures the consistency in the change.  With regard to federal power, I think Justice Stevens has been relatively consistent.  On race, gender, affirmative action, I think he has moved significantly.  Overall, I think he has moved significantly to the left.

What has caused it? I think he is concerned about what he perceives as the center moving significantly to the right, and sometimes he thinks it is up to him to keep the rest of the Court honest.  So there is going to be one dissent with a different version or understanding of the facts of what happened in the Court below, just so there is a record.  I think there is some responsibility he feels in that regard.

I think one could maintain the argument that he is the least inclined to be constrained, the most inclined to be what he wants, to put it coarsely. But, I don't think it is fair to say that in Justice Stevens' view, the law is whatever we say it is.  If that were the case, then he would be voting in every death penalty case voting that the death penalty is unconstitutional, and in fact, he has said publicly, "I believe the death penalty is constitutional, but I have no doubt that we would be much better off without it."  So that is a real distinction between him and, say, Justice Marshall or Justice Brennan.

It seems to me it is hard to say that there is no distinction between what he wants and what the law is when he will publicly maintain that position and also his votes in stays of execution.  For example, in capital cases, he is not dissenting all the time.  When he sees no colorable claim, he votes to deny the stay application.

MS. TOTENBERG:  The other thing that I think is kind of interesting about him is that he is the ultimate in what I would call "old school."  I don't know if he is Episcopalian or not, but he might as well be if he is not.

Evangelicalism is something that really I think is foreign to him, and that probably has been upsetting to him He is very old school in terms of what lawyers are supposed to do, public ethics.

I mean, let's not forget that he wrote Clinton v. Jones, and I would imagine that the Chief Justice assigned it to him with great clarity of purpose.  He didn't seem to have the slightest hesitation about Clinton v. Jones.

Clinton v. Jones was a matter of ethics, and when you do what I have done, which is to write the obit, you go back and you see how he started out in public life was as a special prosecutor.  That was his first public assignment.

There is a picture on the front of a biography that a couple of law professors have done, and he is stooped over, leaning down, talking to a guy in the wheelchair.  Well, the guy in the wheelchair was a kook—I think his name was Sherman Skolnick—who was the kind of person that is always bugging people in public life or reporters, telling them that there is some terrible conspiracy or whatever, except that this time his conspiracy turned out to be right.  As a result of it, Stevens did this special prosecutors investigation of the State Supreme Court where he found gross ethical violations, because he had listened to Skolnick's complaint.

You see that he always dissents when they disbar people or they tell them that they can't file any more frivolous appeals.  He listened to a ton of frivolous appeals from Skolnick, but one of them turned out to be right.

MR. GREVE:  We will move to questions.  There is a microphone.  Will Wilson has the microphone, and he will find you.

Before you ask a question, state your name and your affiliation.  We will start with the gentleman from over there.

MR. HOLLIMAN:  Hi.  Christopher Holliman, Small Business Administration.

If I can ask Ms. Totenberg to look into the future a little bit, the names that are apparently on the President's short list for whatever vacancy on the Court arises have been brooded in the press, the Attorney General, Judges Luttig and Roberts., From your reporting on this issue, do you know if any of the names that have been publicly mentioned are more or less acceptable to the Senate Democrats and the interest groups who are gearing up to oppose the President, or would they consider all of them out of the mainstream and intend to force the President to appoint another Souter?

MS. TOTENBERG:  They don't have a majority.  So it gets very difficult to force him to appoint another Souter, not to mention the fact that I don't think that the first President Bush thought he was appointing a Souter.

I think that they would find it impossible to really oppose Gonzalez not because of what they think his views are, but probably because he is Hispanic.  His confirmation hearings for Attorney General were hardly a triumph, and there were a lot of votes against him.  There would probably be a fair number against him again, but I think all three of those people would likely be confirmed.  The hardest to confirm is probably Mike Luttig, but that doesn't mean that he wouldn't be confirmed.

I think politically the Democrats would least like Gonzalez.  They can't do much then, no matter what they think he will be on the Court, and I don't think they have any clear notion of what he would be like on the Court.

There are Democrats I know who, I would say, vote their wishes rather than anything they know.  They don't know anything.

There are people this President could appoint who are quite conservative.  Most of them that I can think of are lawyers.  I don't know why Maureen Mahoney isn't on the list, other than that she argued a case for a client which was the affirmative action case and won, but as far as I can tell, she is a very, very conservative woman Catholic.  I don't know why she is not on the list, but she isn’t.

There are people like that, and I could name others, who the Democrats would probably find acceptable, but I don't think that is where this White House is going, and I think the three names you mentioned, one of them is likely going to get named for this position, if there is a position.

MR. QUINNAN:  I am Rob Quinnan from the Massachusetts Attorney General's Office.

Although it is a bit off topic, I have to ask, Nina, why you felt that spending 20 days with Justice Blackmun's paper was about 20 days too long, and maybe to tie it in, with which of the current Justices would you like to spend a long weekend at a private retreat?

MS. TOTENBERG:  A long weekend or with their papers?

The candid answer, I guess, about Justice Blackmun is that other than Casey and Roe, he really wasn't a force.  When you see memos in the files that are so significant from Brennan and Powell in the earlier years, you really are looking at something very important and interesting and compelling.  There really isn't that much like that from Justice Blackmun.

What you see is an incredibly careful, hard-working, slightly schitzy personality, who could take great umbrage at small perceived insults and who was much beloved by his lessers—by that, I mean the people who worked for him and the people who worked at the Court and the public who met him—and less beloved by his colleagues.

As I said, I am not a scholar.  So going through 15 drafts of an opinion is not my idea of fun, no way, no how. You are going through this stuff and there are very few, if any, "aha" moments. Most of the ones I found were from other members of the Court, like the one I described about Stevens.

Since so much stuff about Roe had been published already, we had a fair notion of that material, and even there, some of the "aha" moments are not from him.

There is this memo which I think has been seen from Justice Brennan that basically says to him, “Look, this is either the woman's right or the doctor's right, but you can't have it both ways; we have to decide which it is.”  Those are the really interesting things to examine.  So that is why 20 days was hard slogging.

As for who I want to spend a long weekend with, it would depend whether they were actually going to relax and tell me anything or not.

And with that, I've got to leave.

MR. GREVE:  Thank you very much, Nina.

MS. TOTENBERG:  Thank you for spending your long weekend with me.

MR. SCHWEITZER:  Dan Schweitzer, National Association of Attorneys General.

The opinion I found most striking of the ones I read over the last couple of weeks was Justice Scalia's dissent in McCleary County, which was a very forceful statement that the framers would have wanted to permit the government to actually encourage religious practice, at least monotheistic religious practice. Justice Stevens responded by saying, "If you had the courage of your convictions, you would have agreed that the government could encourage Christian religious practice specifically."

I wonder who you all think won the battle of originalism there. Also, if Justice Stevens is right, as a matter of originalism, what does that tell us about the competing approaches to constitutional interpretation because I wonder how comfortable we would feel if as a true originalist matter it were okay for the government to actively encourage Americans to believe in Jesus as opposed to other specific religions?

MR. ADLER:  I would like to say neither won because Justice Thomas said—I don't think it was in that opinion, I think this was in Newdow—that the First Amendment was in part designed to prevent the federal government from telling state governments what religions to endorse or not to endorse. There are certainly those who have made the argument that incorporation is hardest to argue with an amendment that begins "Congress shall make no law."  In that regard, since they are both operating under an assumption of incorporation of the First Amendment, a tension is there because what Stevens is saying Scalia should do really only can work if states are all free to go their own way.

I am still not sure it works then, but it could only work in that context.  So Scalia is essentially arguing for a more nonsectarian, almost kind of ceremonial deistic encouragement to believing in monotheism recognizing it as part of the nation's overall tradition.  It isn't wholly in line with original meaning either.

MR. SIEGEL:  What I most admire about Justice Scalia at oral argument and in the opinions is his candor.  For instance, he turns to the Attorney General of Texas and says, "You have got to be kidding me when you say the Ten Commandments are not religious.  You really want to win on those grounds?  You won and you can show them because they are meaningless or they have no religious moment?"  If you were cynical, you could say, well, that is because he wanted not only to win, but win big.  But in fact, I think he is being very candid about what was at stake, and my own judgment is that is what scared Justice O'Connor.

I think it is must harder for Justice O'Connor to pretend this is not religious when Justice Scalia, Justice Kennedy, and the other Justices—in fact, everyone but Justice Breyer—are saying emphatically, "We are talking about religion here."

I don't think this is just about ceremonial deism for Justice Scalia.  When you read his one-paragraph concurrence in Van Orden, he says, "I would prefer to reach the same result by adopting an Establishment Clause jurisprudence that is in accord with our nation's past and present practices and that can be consistently applied, the central role and future of which is that there is nothing unconstitutional in states favoring religion generally, honoring God through public prayer and acknowledgement, or in a nonproselytizing manner venerating the Ten Commandments."  I don't think that is ceremonial deism.  That is not "under God" and the pledge.  That is we are a religious people, and there is nothing wrong with the state reinforcing that in public settings.

MR.  NAGEL:  I would like to respond on a slightly different line, but the same set of opinions.

I thought Justice Scalia's amassing of evidence about our religious heritage and so on was very, very powerful, and he says at the end of it something like--almost with the tone of exasperation, "In light of all of this, how is it even possible for the majority to say that the government has to be neutral with respect to religion?"  He has got Presidential proclamations, Presidential speeches, and all kinds of actions. Anyway, certainly he piles evidence of endorsements of religion that are far more explicit and powerful than a statue sitting on public grounds.

There is a moment in Scalia's dissent that I particularly enjoyed because he responds to Justice Stevens' effort to deal with all of this evidence. You might remember Justice Stevens says, “Well, Scalia has got all of this evidence, but these are all people speaking, Presidents speaking and so on, and that is different from a statue because a statue sort of represents the government's position, whereas, when a person is speaking, the public can see it is partly personal opinion.  You are partly a President speaking, but you are partly just an individual, and those might be your individual views.”

Scalia replies to that by saying that is a very strange point to make by someone who in the Santa Fe case took the position, which Stevens did, that a brief address over a public address system before a high school football game by a student, the message of that was properly attributed to the school district, spoken words of a private person.  That is the government's endorsement of religion for Justice Stevens in the Santa Fe case. I don't think Justice Stevens ever did really respond to the central point, the central historical argument that Scalia was making.

MR. GREVE:  Can I just pursue this a little further because there is one response that Stevens has.  He can say:  Look, if you go to the original understanding, you can't just go to sort of the establishment has to involve coercion.  You also buy--how shall I put this?--the anti-incorporated view of the Establishment Clause.  You buy at a minimum that.  It comes in a parcel.  You can't be an originalist with respect to the meaning of "establishment" and ignore the incorporation stuff altogether.  If I can just ask the panelists of what the force of that objection is.

The second thing that is interesting about the second argument Justice Stevens makes there, which I think is very potent, is to say, look, the rights here don't survive incorporation without a change.  The way this goes, according to Justice Thomas: the Establishment Clause is a protection for the states against a national church.  If the Establishment Clause is incorporated along with everything else against the states, it obviously can't mean that.  So it has to change from a right that protects the states to a right that protects against the states, and then the logical next step is to say, well, then what does it mean?  There, Justice Stevens' neutrality is the best answer, and if that means we are into interior decorating, then so be it.

So what do we make of those two arguments?

MR. ADLER:  I am taking them in reverse order.  If you incorporate the Establishment Clause, I think it would still retain a parallel structure; that is to say, it was a protection of the states as against the federal government from establishing a specific church, but it did not require the federal government to be neutral in terms of being religion versus zero religion or references to monotheism versus secularism, and some of the evidence is in Scalia's dissent.  So that you could in a parallel way maintain the nature of the right, and it would not mandate neutrality on the question of religion versus lack of religion.

On the incorporation point, I think that is a stronger argument in part because many of the other rights that are incorporated, there is at least a plausible argument that were it not for Slaughterhouse and were it not for decades upon decades of history and precedent, many, although not all, of these rights would have been incorporated in a slightly different way.  I mean, that is certainly an argument that is made, and some of the criminal procedure protections and certain other protections would have been recognized as privileges and immunities of citizenship.  That is obviously contested, but there is certainly some historical scholarships suggesting that at least some of those who ratified the Fourteenth Amendment intended to do that.

You can maybe even get free speech and you can maybe even get free exercise there, but establishment is really hard to get through that.  So, if you are going to take the view that, well, doctrinally we went down the wrong road, but we are trying to get to, more or less, the same results we would have gotten, we wouldn't be doing this through due process--we would be doing it through privileges and immunities--you still have the problem with the Establishment Clause because that is not one of the things that would have likely been a privilege or immunity.

So I think that objection has force.  Whereas, even if it is incorporated, all states have to be secular, I don't think that has as much force.

MR. COLEMAN:  I don't know why scholars just ignore the first part of the First Amendment.  It says, “Congress shall make no law.”

MR. ADLER:  Oh, I agree.  I think the incorporation argument is hardest with the First Amendment precisely for that reason, that it is the one amendment that begins "Congress shall make no law," and I am saying that even if one gets over that hurdle and believes that, for example, the free speech protection would be protected as a privilege or immunity at least in the political context, that one of the privileges or immunities of federal citizenship was participation in the political process, again, scholars contest or debate whether or not it would have been.  Establishment is going to be the last thing.  That is the hardest argument to make for incorporation, and that is my point.

I mean, I agree with you that generally from an originalist standpoint, the First Amendment presents problems for incorporation that at least many of the others don't.

MR.  SIEGEL:  I think the "Congress shall make no law" language underscores what you are buying when you buy originalism and with respect to the First Amendment incorporation.  So it is not just the Establishment Clause.  It is the Free Exercise Clause, the Speech Clause, the Petition Clause, and the Assembly Clause.  None of that is incorporated which means any State of the Union can blatantly violate your First Amendment rights, suppress the press, do all sorts of things that the First Amendment in the year 2005 is uncontroversially—at least eight of nine Justices—understood to protect.

So this is what Justice Scalia means when he calls originalism the lesser even, that sometimes it can be too bitter a pill to swallow.

I think in his earlier days, he was more candid with respect to the implications of originalism.

MR. COLEMAN:  While I know there are other scholars in the room, but the difficulty with that argument is that the Speech Clause, I think in the Bridge case, got to be something that applied against the states long before Black did his crazy thing about incorporating the first eight Amendments.

MR.   SIEGEL:  Right, but you just switched from the text and original meaning of the First Amendment to Supreme Court precedent and doctrine.  It doesn't change what the First Amendment says which is "Congress shall make no law."  So, if you are going to start maneuvering with respect to speech, then it seems to me you have to explain why you are not going to start maneuvering through precedent and evolution with respect to establishment.

MR. GREVE:  Yes, sir.

MR. SPANIS:  Thanks.  Ed Spanis, Executive Intelligence Review.

 Since you were discussing Hamilton and original meaning, I would like to ask how you all think Hamilton would have decided the Kelo case, and if Michael says what I think he is going to say, I want a rebuttal. If you say he would have agreed with Thomas.

MR. GREVE:  You won't believe this.  I am inclined to think there is no public use limit in the Takings Clause, at least none that I would want to see enforced by federal courts.

MR. ADLER:  I would certainly agree with that.

I think the history on what "public use" meant is sparse.  I think that is one of the reasons why if you look at Thomas' opinion very closely, there are some gaping holes.  He quotes Blackstone on saying property rights are inviolate, you can never take it, and we know that is not what the founders said.  The founders said you can take it, but you have to pay for it.  So there is a disconnect.

The historical materials are fairly sparse on this point, but I think the weight of that evidence suggests the founders were far more concerned about whether or not there was consent in the taking of property; that is to say, did the legislature or representative say this is property that is needed.

If you look at Locke, for example, that was his concern, and there are passages in Locke where he juxtaposes taking of property for some sort of public use with taxation.  The key test in both cases for him is consent, and they were very much concerned about compensation as a check and kind of an equal protection sort of thing; that is to say that one person shouldn't be forced to bear burden and should be borne by all of us.

There is not a lot of historical material saying that public use has some defined meaning. In some early cases, we get the language about you can't take from A and give to B.  So that may have been a concern, but even there, you are looking at a solo opinion by Justice Chase.  There is still not a lot on which to hang a rigorous enforcement of public use requirement.  As someone who hates eminent domain, who thinks probably 95 percent of the uses of eminent domain in the last 15 years were immoral and inefficient economically, I think that if the burden is on the individual asserting a right as against the state or local government, it is hard to make an originalist case as a constitutional matter, and it is certainly a lot harder than Justice Thomas' dissent suggested.

MR. NAGEL:  If I could add something to what Michael said, you said something like you don't think there is a public use limit that at least that is enforceable by the Court, and I was struck at how different that position is from the position of the majority in the case because they actually say there are limits that we can enforce.  And then they announced a couple of proposed ones, which I think O'Connor deftly shows are not really enforceable, they are not really coherent, or they don't have any content.

It leads one back to the old question: wouldn't it better if they had written the opinion the way you stated it because then it would have at least been possible for someone else to take responsibility?  If courts can't enforce the public use limit, it still might be worth it for other institutions to think about it because they have other ways of thinking besides the way courts think.

The same is true in the Commerce Clause area.  They insist on saying, even in this latest case, that there are limits to the commerce power, just that you can hardly ever find one, and when they do announce what it is, it doesn't hold up conceptually.

So, again, maybe it would just save so much suffering if they would admit there are some things they can't enforce and let someone else take a crack at it.

MR. GREVE:  There is another aspect to this: just because I am inclined to think that there is no enforceable public use requirement does not mean that I am indifferent to property rights.  Quite the contrary. This concern for the public use requirement distracts from the valuation problem.  Ninety percent of those cases, you could get right.  They wouldn't even arise in the first place if the government could bring itself to pay full compensation, and full compensation has to mean not the dollar cost, which is what the government looks at presently.  It has to include the social cost to the owner as well.

What is wrong with libertarian rhetoric in these cases and many other cases is that they say, “We will not sell under any circumstances because this is my home on earth and I have lived here for the past 50 years” or God knows what.  I have full sympathy with those kinds of attachments that people have, but for better or worse, what the Takings Clause incorporates is a rough consensus.  And that is to say, the question of whether or not we condemn the property is in all cases a collective decision, it is the government's, and what disciplines us is the full valuation.

In a weird way, the public use requirement that the property right groups have now seized on or used to seize on distracts from that basic compromise and gets you away from the valuation problems. To the extent that the Supreme Court for all sorts of reasons clings to that mode of analysis, it sends the wrong message and loses track of what actually matters here, to my mind.

MR. ADLER:  I think that is right.  If there is a case or two that property rights advocates should really want to strain their sights on, they are Williamson County and Penn Central.  Penn Central means this can’t show it is a regulatory taking, you lose.  Either that or it is going to take you so long and cost you so much money to litigate this, you might as well give it up in the first place. That is a much bigger threat to property rights and the individual land owner who is suddenly saddled with the cost of a collective decision about how we should handle some issue than a case that says the legislative process gets to do stupid things from time to time.

MR. GREVE:  Yes, sir.

MR. SCHNARE:  Thank you.  David Schnare.

The tension that I haven't seen relieved with regard to this takings is that when you had the government being required to pay for the taking, you had a natural ability to slow down the takings because the government doesn't have that much money, and when you see things such as the Chesapeake Bay Act in Virginia where if it is 100-percent taking of the land for sure, so that they can't build on it at all, then you can build anything you want because they refuse to accept the payments for the property.  Whereas, if it is a partial taking, then that is tough.  You lose.

In these cases where you have got economic development, it is not the government that pays.  It is the developer who pays, and they have deep, deep pockets.  So that ability to slow it down, this rough justice you were talking about, is gone, and I think Jonathan is just right.  It is the Penn Central case.  What is it that you can't take if you can afford it as long as you aren't the government?

MR. ADLER:  If I could just add one thing there, you are exactly right that the dynamic with the developer paying for use of eminent domain changes it a lot.

There is a case we have in Norwood, Ohio, where it is pretty clear the developer went to the city and said, "This is the land we want.  We will write the check to compensate the land owners.  You just do it publicly," and it looks like we may have something in the city limits of Cleveland that is virtually identical.

But we also have a case in Lakewood, Ohio, where something similar to that seemed to be going on, and when the Institute for Justice came to town and started talking about the case, people looked around at what was being done to their neighbors and they got upset.  The fact that Lakewood had to pretend that one community or one neighborhood was blighted, even though 95 percent of the homes in the entire city met that definition of blight, it meant that a lot of politicians suddenly were really embarrassed, and the mayor got voted out of office on this issue.

So I think that there still is a political check in a lot of these cases, and I think it is interesting that the majority opinion, whether or not it is ever enforced, does talk a lot about the sorts of things that would make it easier for a community to say, “This doesn't smell right, we are not going ahead.”

MR. GREVE:  Yes.

MR. JOST:  Kenneth Jost with CQ Press.

Can I ask about a suit that is not yet there, probably three to five years away?  A federalism states' rights analysis of the case where a couple legally married in Massachusetts goes to some other state that doesn't recognize same-sex marriage and one party or the other seeks to enforce rights recognized by the Commonwealth, but not at the state where jurisdiction lies.  How would the state and how would this Court analyze such a case?

MR. GREVE:  Some of us have written about it.

MR. ADLER:  The only thing I would say is I have no idea what this Court would do.

I know that states would vary.  I would feel reasonably confident that Virginia would pretend as if the marriage had never occurred.  At least when I took the Virginia Bar, Virginia asserted a right to not recognize marriages that were against public policy.  The state still understood it as good law.

Now, if that has changed since I left the Commonwealth, I don't know, but I would assume that there are some states that would say this isn't a marriage we recognize.  Whether or not federal courts would intervene or not, who knows?

MR. GREVE:  Mr. Rosman.

MR. ROSSMAN:  Michael Rosman, Center for Individual Rights.

I came in a little late, so, if they have already discussed this, just stop me, please.  One of the things that struck me about this term is the number of times that Sandra Day O'Connor was in dissent on important cases, really important cases in which the vote was either 5 to 4 or 6 to 3 or, in some cases, because of Rehnquist's absence, 5 to 3.

She dissented in the Ten Commandments case in Texas, Kelo, Raich, the wine shipment cases, the sentencing cases, the death penalty for juvenile cases, and the ADEA disparate impact case, although technically a concurrence was more or less a dissent on the big issue, and I am skipping less important cases that she dissented on, like supplemental jurisdiction.

Am I wrong?  Can any of the panelists remember another term in which she was in dissent so frequently, and do you have any conjecture as to why this is?

MR. SIEGEL:  She dissented an unusual number of times this term.  I have data somewhere in my pile.  I think it is 11 cases.  Is that your count?

She dissented in significantly more cases this term than in the last five terms.  If I find the numbers, I can announce them.  I think it was around 11 cases.  I think last term, it was something like four or five cases.

I mentioned earlier that she was in dissent or actually knew that was a concurrence in the judgment.  She was in some important cases last term, so, for example, Blakely.  Booker is just a result of Blakely.  A lot of people thought the writing was on the wall.  Some didn't, but most did; Crawford as well last term.

No, I think that is right, but you are certainly right to observe that she has been in the dissent to a much greater extent this term.

I don't know how much to make of that because it is one term, but you are certainly right in your observation.

MR. FARRELL:  Hi.  John Farrell from the Denver Post.

Going back to the comment that one person can change the whole Court, if the Chief does resign, can you guys just extrapolate a little bit and suggest how that may happen?  Because the conventional wisdom is more that it is just the one Republican conservative vote, it is not that big of a deal.

MR. SIEGEL:  I would rather not speculate.  I could just talk.  I mean, lawyers are good at that.  I could fill up the microphone, but I don't know who it is going to be, and I don't know what the implications are going to be.

I don't think the votes in very important cases are going to change if just the Chief steps down.  If you look, he was on the losing side of important cases or cases that were decided by more than a 5-4 margin, but certainly the internal dynamic of the Court is going to change.  There are going to be different colleagues there.

MR. GREVE:  The one thing, there are actually some theoretical pieces in the Law Review literature about this, and they all start with the observation that this Court is the longest-sitting nine-member Court in history, and that has certain consequences.  The most important consequence is perhaps the fact that the Court becomes like these prison inmates in that old joke where somebody says, “18,” and they all laugh because they have numbered the jokes. They have told them so many times that they don't have to tell the full joke anymore.

The justices know each other very well.  They have all played the same card several times, and nothing is gained by playing it yet another time.  That has consequences, both on the opinions which tend to get sort of lazy at times to my mind. It has consequences arguably on the voting pattern.  You get fewer plurality opinions, which is why the religion cases are actually interesting; ten opinions, not a single majority opinion among them.

Because a plurality opinion means somebody failed to predict how somebody else would behave at the merits stage; those kinds of things could easily shift if somebody new came on the Court, especially if it is somebody with a very creative and influential and powerful mind.

MR.  ADLER:  Just to add on that, I think it was Tom Merrill's piece that talked about one aspect of this Court having been together so long, which I think is implicit in Michael's comments, is that in the vast majority of cases they take, they know how it is going to come out when they take it.  The more turnover on the Court there is, the less likely that is to be the case because the dynamic is different.

The only other thing I would mention is--and this came up earlier--we know that as Chief Rehnquist has been so much different than Burger was in terms of the way he has managed the Court, I think it is fair to say that whoever the next Chief is or whoever the nominee is, whenever Rehnquist decides it is time to step down, the debate in this town will focus on ideology and how is this person going to vote, but no less important in terms of what the Court does and how it functions.

Even in what happens in certain cases because of the power of assigning opinions will be how the next Chief Justice operates as an administrator or as the Chief, and that won't get a lot of attention when Senators are praising and beating up on the nominee, but that will be tremendously important in terms of how the Court operates in the years to come.

MR. GREVE:  We will take one more question, assuming there is one.

MR. Coyle:  Dennis Coyle from Catholic University.

Thinking about that last question, I wonder if we give the Court too much credit these days when talking about essentially being a court when so much depends upon the votes of the particular Justices, how they fall out, and then you try to make sense of doctrine when it represents many different coalitions and that doctrine of the Court is really held by virtually no one on the Court consistently.

With that as a backdrop, thinking about the significance of if Rehnquist were to step down, it seems he has been clearly a more popular Chief Justice within the Court than Burger.  That may be partly because he hasn't been pushing people around.  He works well with the other Justices, is sensitive to where they are going to go, how he assigns opinions and so on, but whether that is really necessarily good for all and good for the Court itself remains a question, because I can't think of another Court that has been so divided not so much between the Justices, but within opinions.  They read like statutes, there are so many subsections; there will be X-Justice assigning it to this part and those onto that part.  So you can barely even put together a precedent from a single case.

You probably can speak more informatively on this, but I think that probably is reflected by the reticence of Rehnquist, instead of a heavy-hand of Chief Justice. I wonder whether that is necessarily good when you can mine a fractured opinion with the key votes typically being held by the Justices who are not particularly driven by principle anyways.  Do we really have much of a long doctrine that we can speak of these days?

MR. SIEGEL:  Insofar as your description of the reality at the Court is correct, I don't think it is attributable to the fact that the Chief plays nicer with others than Chief Justice Burger did.  I think it is really the methodological and ideological commitments of the Justices, which is very historically contingent, specifically Justice O'Connor, Justice Kennedy, Justice Breyer write a lot of what people had said they don't like about this Court today is reflected in their decisions.

I think a heavy-handed Chief Justice can't make another Justice vote the way he or she wants.  If anything, I think the Burger-type approach would be more likely to alienate Justices further.  So I don't see how heavy-handedness could make Justices coalesce on one majority opinion as opposed to writing separately.  A Justice always has the right to write separately.

The last thing I will add is I was right about Justice O'Connor.  She had 11 dissents this term, 5 last term, but then she had 10 in '01, 11 in '97, and 10 in '96.  So I don't think we should make much of the fact that she had 11 in this term.

MR. GREVE:  I want to conclude this on one question, which I had actually mapped out in advance.

Part of the fracturing of these opinions may simply be a function that they hear so few cases.  So they have a lot more time to noodle around.

MR.  SIEGEL:  No way. Work there for a year.

MR. GREVE:  It is the Bahamas circuit.

Anyhow, I do want to end on the Raich and marijuana-inspired note, so to speak. I will rephrase that.  Jonathan mentioned--and we have talked--about the sort of strange fate of the federalism cases.  You go back 3, 4 years, there was real oomph or seemed real oomph behind the case law.  Then came the decision in Nevada v. Hibbs, Tennessee v. Lane, and now the Raich case.  It may well be true that next term, everything will look different, but it certainly seems as if the Court, that the federalism bloc, so to speak, has lost its footing, has lost a lot of its coherence in individual cases.

My question is simply this:  Why did the Rehnquist Court make that its top agenda item in the first place?  And I don't think that is a trivial question at all.  What was it actually trying to do there, regardless of whether you think it is over?

Or, let me rephrase that.  If you think it is over, then explain to the audience, please, why you think it might have been worth having; and if you think it is not over, what is there that can still be salvaged that is worth salvaging?

MR.  ADLER:  In terms of what is worth salvaging, I think the part that is going to last the longest is the anti-commandeering rule--although that is probably a trivial rule because there aren't that many things out there that commandeer state legislatures, so that state legislatures or executives are not going to bother complaining.

I know there are a handful of environmental statutes that quite clearly commandeer, but no state could ever challenge them because it is just not worth the political cost.

I think sovereign immunity is not as robust as it may have seemed at its height, but at least, unless something dramatic happens next term, it is two steps forward and one step back.

I don't think this Court is going to carve out Congress's ability to abrogate certainly under the Commerce Clause.  The Court’s stance on bankruptcy is important, if it becomes a footnote exception, it may be a footnote exception, but I would think it is going to be the exception, and whatever happens with the Georgia prison case--Neil already talked about this--is forcing the Court to confront the mess it has made of its Section 5 abrogation jurisprudence.

It is not going to be neatened up in a way that says anything goes under Section 5.  If Congress makes a finding and they say it is Section 5 abrogation, they can do it, but I don't think that is a likely outcome.  So there will be something there.

Now, that may be the part of federalism that is at least worth saving, and the part that is most worth saving would be enumerated powers, and that is the part where doctrinally we could all write really long articles about how Raich is really distinguishable and we can put Raich and Wickard in a box, and involve things that are grown and that people buy and sell and that will be its own special case, and we will allow the Commerce Clause to be robust in other places. But the problem already mentioned is: I don't see how the Court gets another case if we assume that the Court is unlikely to take a case in which a law is upheld by the circuit court and the Court refuses to take cases involving the Endangered Species Act.

Whereas, as has been noted by several judges, you have appellate courts across the country all reaching the same result, but doing so in ways that are analytically incompatible, and the lower courts have noted this. The Fifth Circuit and D.C. Circuit have pointed out that their rationales are mutually inconsistent, and you had an en banc split in the Fifth Circuit and the Court still doesn't take that.  So I don't know where that next case comes from.

Lurking in the background is the Spending Clause, and we may learn something about the Spending Clause.  In the Solomon Amendment case next term, even though it is not a federalism case, we may learn something about unconstitutional conditions that might inform what Dole is going to mean.

MR. GREVE:  Explain briefly what that case is about.

MR. ADLER:  The Solomon Amendment case means basically if a university accepts federal money, which most universities do, they have to allow military recruiters on campus on equal terms with other recruiters. That really means that law schools can't deny military recruiters access to campus, which is what a lot of law schools had been doing.

One of the arguments is a question of whether or not this is an unconstitutional condition on the receipt of federal money.  It is a messy case.

Whether or not law schools as such have a First Amendment right that is burdened by allowing a JAG officer to show up and interview somebody and post when the interview times are going to be and whether or not the First Amendment rights are even being burdened there in the first place or whether or not the law schools have an expressive association right akin to the Boy Scouts is itself questionable.  So we might not get to the real Spending Clause part of it, but it is there.

In the Clean Air Act, there is the opportunity for some real Spending Clause litigation as states struggle to meet SIP [state implementation plan] requirements.  So there may be something there.

Why do it?  I mean, I think the short answer is because you have five Justices who, for every different reasons, believe it is important.  The fact that they believe it is important for different reasons is why it has been hard to hold together. They don't have a coherent consistent view of why it is important.

For Justice O'Connor, it is state autonomy.