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Student Blogger - Chicago’s Best Ideas: Geoffrey Stone on Obama’s Supreme Court

Update: Video of this talk is embedded after the jump; it is also available for download as a .mov or .mp3.

A common perception is that since the Supreme Court frequently divides 5-4, it is balanced between conservatives and liberals. The vote breakdown, however, does not tell us anything about the Court's ideological breakdown. The Supreme Court has discretionary jurisdiction, and any group of nine justices will tend to choose cases that divide them because those cases are the ones that are the most legally uncertain.

On April 14, 2009, Professor Geoffrey Stone presented a talk in the Chicago's Best Ideas lecture series entitled "Obama's Supreme Court." He discussed what he thinks the makeup of the current Court really is. (Throwing the word "Obama" in the title is a good way to get people in the door.) In a series of entries on Huffington Post, he describes what follows in more depth.

First, Professor Stone served up some facts about the current Court. Seven of the nine sitting Justices were appointed by Republicans, as were twelve of the last fourteen appointees. The so-called "swing" vote on the Court has shifted from Justice Stewart to Powell to O'Connor to Kennedy, each of whom is widely considered more conservative than the last. According to an article by Professor Landes and Judge Posner, four of the current Justices are more conservative than any Justice since 1937 except Rehnquist. Finally, there are not any "full-throated" liberals like Justice Marshall or Brennan on the Court.

The Guantanamo Detainees and the Obama Administration

As an unabashed civil libertarian who sharply criticized many of the policies of the Bush administration, particularly in the “war on terror,” I have high hopes for the administration of President Obama. I know many of the officials in the Department of Justice and I know that they, too, are committed to the protection of civil liberties. But it is easy to defend civil liberties when one is not also charged with the responsibility of protecting the nation’s safety. Faced with that burden, the temptation to play it safe must be great, indeed.

Attorney General Eric Holder recently filed an important memorandum with the federal district court overseeing the habeas corpus petitions filed by more than two hundred of the individuals still detained at Guantanamo Bay. In this memorandum, the Obama administration made clear that it is “refining its position” with respect to the government’s “authority to detain those persons now being held at Guantanamo Bay.

An important element of this memorandum is the new administration’s repudiation of the Bush doctrine that the president has inherent authority as “commander-in-chief” of the armed forces to decide on his own whom he can detain, for how long, and under what conditions. The memorandum instead anchors its authority in congressional authorization and acknowledges that the president must act in accord with both the Constitution and the principles of international law. This is a much welcome return to the rule of law.

Obama's America: Liberty and Secrecy

The past eight years of the George W. Bush Administration have seen significant restrictions of individual liberty. Much of the impetus for these restrictions has come from the tragedy of September 11 and its complex aftermath: War inevitably magnifies the tension between individual liberty and national security. But there are wise and unwise ways to strike the appropriate balance. In the years since September 11, the Bush Administration has embraced a series of policies–including torture, aggressive surveillance of international communications, clandestine detention of American citizens, secret prisons in Eastern Europe, closed deportations proceedings, and restrictions on the writ of habeas corpus–that have unnecessarily undermined the fundamental American value of individual liberty.

However, the most unfortunate policy of the Bush Administration in terms of American liberty has been its deliberate and consistent effort to hide some of its most important policy decisions from the American public. Of course, there are legitimate reasons to keep certain information secret to protect the national security. But secrecy can also be used to evade responsibility and to manipulate and distort public debate and understanding. Overbroad government assertions of secrecy can cripple informed public debate. It is impossible for citizens responsibly to consider the merits of the actions of their elected representatives if they are kept in the dark about their conduct. As Sen. Daniel Patrick Moynihan once observed, "Secrecy is the ultimate form of regulation because people don’t even know they are being regulated." This has been a legacy of the Bush Administration.

Truth and Reconciliation

What’s to be done about the lingering questions concerning the arguably unlawful activities of the Bush administration? I refer, for example, to such issues as the use of torture, the creation of secret prisons, the secret detentions of American citizens, and the NSA surveillance program. These actions, and many others, pose serious, still unresolved, questions about the legality and constitutionality of the government’s conduct.

We cannot and should not shut our eyes to these questions. And we should not let ourselves be distracted from these questions by other pressing issues, such as the economic crisis facing the nation. If for no other reason than to set clearer ground rules for the future, we need a full public understanding of the decisions of the Bush administration. We need to know who made them, why they were made, why they were made in secret, whether they were justified, whether they were legal, and whether we can establish better decision making processes for the future.

We need to examine these decisions not so much to exact vengeance – or even justice, but to learn from our experience. This is an important distinction.  It is certainly not unprecedented for public officials to be criminally prosecuted for unlawful conduct. One need only recall Teapot Dome and Watergate to recognize that such prosecutions are perfectly plausible.

Democracy, Religion and Proposition 8

How can a free society reconcile the often competing values of democracy, religious liberty and the separation of church and state? This challenge was vividly illustrated by the recent controversy over California’s Proposition 8, which forbade same-sex marriage.

In a democracy, the majority of citizens ordinarily may enact whatever laws they want. Some laws, however, are prohibited by the Constitution. For example, the majority of citizens may want a law denying African-Americans the right to vote or prohibiting Muslims from attending public schools, but such laws violate the Constitution.

Does Proposition 8 violate the Constitution? There are several arguments one might make for this position. One might argue that Proposition 8 discriminates against gays and lesbians in violation of the Equal Protection Clause. One might argue that Proposition 8 unconstitutionally limits the fundamental right to marry. One might argue that Proposition 8 violates the separation of church and state. It is this last argument that interests me.

Obama's Justice

On Sunday, September 21, the New York Times published an editorial (“The Candidates and the Court”) predicting that, if elected president, Barack Obama will appoint “moderate” or “centrist” justices, like Stephen Breyer, rather than “all-out liberals, like William Brennan or Thurgood Marshall.” The Times argued this is a good reason to elect Obama rather than John McCain, who would appoint “archconservatives” and would “complete President Bush’s campaign” to make the Supreme Court “an aggressive right-wing force.”

The Times is right to predict that President Obama would appoint less conservative justices than President McCain. It is also right to argue that this is a good reason to elect Obama. It may even be right to predict that President Obama will appoint “moderate” or “centrist” justices, rather than justices like Brennan or Marshall. But if this prediction comes to pass, it will be bad for the law, bad for the Court, and bad for the nation.

 

Political Lies and Democracy

How does a democracy deal with lies? In the last several national elections, political operatives, exemplified by the Swift Boaters in 2004, have employed a deeply cynical and highly effective strategy to distort and manipulate public discourse. This strategy poses a serious threat to the very foundations of democratic self-governance.

The core of the strategy is simple: Consultants, political spokespersons and even the candidates themselves systematically repeat a false statement about their opponent’s positions, statements, or actions. The very assertion of the falsehood puts the target on the defensive. If he ignores the false accusation, it gains traction; if he disputes the lie, he dignifies it, gives it greater publicity, and sounds suspicious; if he calls the lie a lie, he comes across as accusatory and mean-spirited.

An essential element of this strategy is that the perpetrators of the lie will insist, no matter what, that the lie is true. Confronted with the facts, the perpetrators will reiterate the falsehood. The key to this strategy is the willingness to lie, and to lie repeatedly.

Audio/Video: Geof Stone, "The World of the Framers: A Christian Nation?"

It has become commonplace in American political discourse for Christian evangelicals to assert that the United States was founded as a "Christian nation" and that in recent decades secularists have gained control and distorted our nation's founding traditions and values. In this lecture, Edward H. Levi Distinguished Service Professor Geoffrey Stone examines the beliefs of the Framers on this question. What did they think about Christianity, about the role of Christianity in the American nation, and about the relationship between religion generally and self-governance? The answers to these questions are important not only to constitutional interpretation, but even more fundamentally to an understanding of who we are – and who we are supposed to be – as a nation.

This talk was recorded April 21, 2008 as part of the Chicago's Best Ideas lecture series.

Video of the talk is embedded below, or you may download a .mov file or .mp3 file.

Real Homeland Security

What is it that we Americans stand for? What is it about our nation that makes us most proud? What is it that makes other nations of the world respect and admire and emulate us? It is our unparalleled commitment to personal freedom and to the dignity of the individual. It is captured in our guarantee of freedom of speech, freedom of religion, due process of law, equal protection of the law, and freedom from unreasonable searches and seizures and cruel and unusual punishments. We are the beacon to the world because we aspire to be good and fair and just to one another. That is who we are and who we want to be.

We do not always live up to our aspirations. At times, we have embarrassed ourselves and tarnished our image. We have brutally persecuted dissenters, interned innocent persons, suspended habeas corpus, intrusively investigated innocent individuals and recklessly invaded reasonable expectations of privacy, we have even tortured our fellow human beings. We are a well-meaning but imperfect nation. We strive to be good, but we are only as good as our people, our leaders, and our institutions enable us to be.

Presidents have a wide range of official advisors, each with a designated portfolio. There is a Secretary of Defense, a Secretary of Labor, a Secretary of Energy, a National Security Advisor, and a Domestic Policy Advisor, to name just a few. The next president should create a brand new position, which should become a permanent part of the Executive Branch in the future: a Civil Liberties Advisor.

Loyalty Oaths and Un-Americanism

Last week, the State of California avoided a possible constitutional confrontation over its requirement that all public employees sign an oath affirming that they will “support and defend” the United States and California Constitutions “against all enemies, foreign and domestic.”

A mathematics teacher named Marianne Kearney-Brown, who is a Quaker and a pacifist, declined to sign the loyalty oath because it might later be construed as committing her to take up arms to defend the nation, which would violate her religious beliefs. The State finessed the situation by agreeing that the oath would not be interpreted in that manner.

But the real question is why California requires public employees to sign an anachronistic and relatively meaningless loyalty oath at all. Certainly, a truly disloyal employee poses risks to the government. She might (if she were doing something other than teaching remedial math) disclose secret information to an enemy; destroy important government files; make decisions intended to harm the public interest; and recruit other employees to engage in subversive activities. But just how does a loyalty oath guard against such dangers? After all, anyone who is truly disloyal will simply take the oath falsely. No dangerous subversive will be deterred by the requirement of an oath.