Judicial Notice (07.01.23): Technicalities

Hail to the Chief, farewell to affirmative action, a $650 million legal-tech deal, and other legal news from the week that was.

Who is that masked man, anyway? (Photo of Chief Justice John Roberts by Michael Reynolds via Getty Images.)

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For legal commentators during the final week of the Supreme Court Term, it’s typically all SCOTUS, all the time. But I was fortunate enough to have one happy distraction: Harlan’s kindergarten graduation, from the Spanish immersion school he has attended for the past two years. On Wednesday, Zach and I watched as our son and his classmates processed down the aisle in their little caps and gowns, then performed adorable song-and-dance numbers in English and Spanish. Felicidades, Harlan—Papa and Daddy are very proud of you.

I was worried about graduation conflicting with possible jury duty, since I received a summons to report on Wednesday. And I have a knack for getting picked: I was called for jury duty twice when we lived in Manhattan, and I made it onto the jury both times. Fortunately, on Tuesday night I received a text message informing me that I didn’t have to report—and my jury service in the state of New Jersey is complete for three years. Absent a scheduling conflict, I’d happily serve on a jury again; it’s not only a civic duty, but an interesting experience for attorneys.

It was a big week for another Harlan as well—namely, Justice John Marshall Harlan, one of our son Harlan’s two namesakes (along with the second Justice Harlan). Justice Harlan was all over the dueling opinions in the affirmative action cases—to which we now turn, along with all the other major SCOTUS rulings.

Lawyer of the Week: Neal Katyal.

Trying to console a progressive pal who was despairing about the final decisions of the Term, I texted him, “It could have been much worse: Moore v. Harper.”

As you surely know unless you’ve been living under a rock (or nominated to the federal bench), Moore v. Harper asked the Supreme Court to rule on the so-called “independent state legislature theory” (ISLT). According to ISLT, the Elections Clause of the U.S. Constitution—which declares that “the Legislature” of each state shall prescribe “[t]he Times, Places and Manner of” federal elections—state legislatures can establish rules for federal elections free from any restrictions imposed under state law, including state constitutional law as expounded by state courts.

In a 6-3 decision, the Supreme Court resoundingly rejected ISLT. As Chief Justice Roberts wrote, “State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause authority.” In an essay for the New York Times titled “The Supreme Court Just Helped Save American Democracy From Trumpism,” David French explained the significance of the ruling:

The implications are profound. In regard to 2020, the Supreme Court’s decision strips away the foundation of G.O.P. arguments that the election was legally problematic because of state-court interventions. Such interventions did not inherently violate the federal Constitution, and the state legislatures did not have extraordinary constitutional autonomy to independently set election rules.

In regard to 2024 and beyond, the Supreme Court’s decision eliminates the ability of a rogue legislature to set new electoral rules immune from judicial review. State legislatures will still be accountable for following both federal and state constitutional law. In other words, the conventional checks and balances of American law will still apply.

If you share David French’s gratitude to the Supreme Court for Moore v. Harper, then you should also be grateful to Neal Katyal of Hogan Lovells, the acclaimed appellate advocate who brilliantly litigated the case before the Court. Back in December, I praised Katyal’s skillful, originalism-oriented oral argument before the Court, and I won’t rehash that now. Instead, allow me to direct you to what Katyal himself wrote on his (excellent) new Substack newsletter, Courtside: “The hardest thing about Moore v. Harper wasn’t the argument, it was afterwards when a bunch of lawyers (including those on our side of the v.) tried to argue the case was moot.”

I don’t have the space to summarize the complicated mootness issue, but Katyal is correct: there was a strong case that Moore v. Harper was moot, thanks to subsequent rulings by the North Carolina Supreme Court that gave the petitioners in the SCOTUS case what they wanted. Indeed, the focus of Justice Thomas’s dissent is mootness, not the merits. (Justices Alito and Gorsuch joined Justice Thomas in arguing the case was moot; Justice Gorsuch also joined the short section disagreeing on the merits but Justice Alito didn’t, so there were only two votes for ISLT.)

This is where Katyal & Co. came in. In response to the Court’s request for supplemental briefing, he and his colleagues at Hogan Lovells wrote a letter brief laying out a sophisticated, nuanced, technical argument for why the case wasn’t moot. If you compare their brief with Chief Justice Roberts’s opinion, you can see how clearly they carried the day. With mootness out of the way, the Court reached the merits—and protected American democracy ahead of the 2024 elections.

In memoriam: Tom Wallerstein, a litigation partner in the San Francisco office of Venable, passed away on June 16 (although his passing didn’t become public until this week). I enjoyed working with Tom back when I was at Above the Law and he wrote a column, “From Biglaw to Boutique.” May he rest in peace.

Judge of the Week: Chief Justice John Roberts.

The judicial power of the United States shall be vested in… Chief Justice John G. Roberts Jr. Although not quite as omnipotent as he was before Justice Barrett replaced Justice Ginsburg, when he was not only chief justice but also the clear swing vote, Chief Justice Roberts is still first among equals and enjoys plenty of power.

The three most consequential cases of the Court’s final week were Moore v. Harper, discussed above; the Harvard and UNC affirmative action cases, discussed below; and Biden v. Nebraska, the epic student-loan-forgiveness case, also discussed below. And here’s one other thing they share in common besides landmark status: they were all written by Chief Justice Roberts. And written very well, I might add; the Chief is widely regarded as one of the best prose stylists on the current Court.

(Among my friends, Chief Justice Roberts and Justice Kagan are most frequently mentioned as the finest writers. As for picking between the two of them, the choice seems to come down to the conservatism of the evaluator, with the Chief being more conservative both politically and stylistically. Not surprisingly, conservatives loved his affirmative-action opinion; writing in the National Review, Ed Whelan declared it the Chief’s “greatest opinion in his eighteen years on the Court.”)

It shouldn’t be surprising that the three biggest opinions were written by the Chief. Although he doesn’t get an extra vote, his seniority does give him the ability to assign the opinion if he’s in the majority—which means he can take it himself. Some of his predecessors could get a little “piggy” when assigning opinions, taking the most fun and interesting assignments, but I don’t see the Chief in this way. Instead, as someone who cares about the Court as an institution, he seems to take the opinions where the Court’s credibility is most on the line (provided he’s in the majority—which he wasn’t in Dobbs v. Jackson Women’s Health Organization, overruling Roe v. Wade). In cases where the Court is likely to take the most flak, whether from the other two branches of government or the American public, the Chief sees it as his job to don the flak jacket—and I respect that.

In addition to being thoughtful in deciding what to write, the Chief is canny in deciding how to vote. Although he’s no longer the undisputed swing voter, he vies for that role with Justice Kavanaugh. Per Adam Feldman of Empirical SCOTUS, Chief Justice Roberts was in the majority 95 percent of the time this Term, just 1 percent behind Justice Kavanaugh (and last Term, they tied at 95 percent). I especially like how Ross Douthat of the New York Times describes the Chief’s approach to voting:

Roberts wields his Supreme Court swing vote as a kind of conservative statesman, with a vision of the long-term (not just immediate) interests of the right-of-center coalition in the background of his rulings. The minimalism is part of this attempted statesmanship, so is the occasionally implausible difference-splitting, so are the bigger swings like the affirmative action ruling—and so are brush-backs he occasionally delivers to the right. He acts, in many ways, like the farsighted Republican president we haven’t had this century—ideological but careful, moderating his own side’s demands but still seeking its advantage….

Any praise for Roberts’ acumen has to come with the proviso that it’s daft for a democratic republic to have an unelected justice play this kind of statesman role. But if no one else fills the part, I’m disinclined to rage against him: Better a different system, but in this system, better John Roberts than nobody at all.

Runner-up for Judge of the Week: Justice Ketanji Brown Jackson. According to Professor Ralph Richard Banks of Stanford Law, Justice Jackson “has hit the ground running. She seems to have already found her voice, both literally in oral arguments and in her opinions.” For a concise but comprehensive summary of the highlights of Justice Jackson’s first Term on the Court, see Mark Walsh’s piece for the ABA Journal.

In nominations news, the Biden Administration announced its thirty-fifth round of judicial nominees: