Erwin Chemerinsky Supreme Court book coverBefore November runs its course, I wanted to point out one item in this month’s Arizona Attorney you may have missed—a book review.

My fondness for book reviews—when well done—is unabashed. And this month, attorney Roxie Bacon examines a new book by Erwin Chemerinsky that dissects the U.S. Supreme Court.

Chemerinsky is Dean of the UC-Irvine law school, as well as an accomplished scholar and SCOTUS litigant. And his assessment of the Court’s standing is damning. He argues that the Court has fallen down on the job in regard to its most important missions.

You can read Roxie’s excellent review here.

Meantime, for those who think Chemerinsky and Bacon are being too hard on the High Court, consider the current thinking of someone who knows that tribunal well. Linda Greenhouse covered the Supreme Court for years for the New York Times (and I spoke with her once myself, here). Now, she merely shakes her head in dismay at the tortuous legal paths the Court’s majority have taken in significant cases.

Linda Greenhouse

Linda Greenhouse

You should read Greenhouse’s op-ed, and feel free to let me know if the assembled thinkers have overstated their case, or if you agree.

A grateful hat-tip to Kristen Senz of the New Hampshire Bar Association for mentioning Greenhouse’s essay.

Toni Massaro, Ted Cruz and Linda Greenhouse at the University of Arizona Law School, Sept. 16, 2011

Last week, I wrote about a great UA Law School event held on September 16. That was Constitution Day, and the school held a panel discussion on the topic of current legal cases that are significant and worth watching.

I mentioned that I had tweeted a bit during the presentation by moderator Professor David Marcus, former law school Dean Toni Massaro, lawyer Ted Cruz, former New York Times reporter Linda Greenhouse, and U.S. District Court Judge Neil Wake.

A few readers who struggled with the hashtag asked me what I had said. So, combining old and new school, I have posted just a few of those tweets below.

Before I get to that, though, I wanted to share a few moments that stand out from the day’s events:

    • One humorous moment occurred during that break, when I walked up to speak with Linda Greenhouse, whom I had interviewed about three years ago. As I re-introduced myself, she began speaking to me as if we had met just yesterday, and informed me that I had an error on my blog. I thanked her, walked back to my seat, and confirmed she was right. She has segued into the law professor role well.
    • I took a foot-in-mouth minute to thank Professor Marcus for the masterful job he was doing herding legal cats. But in complimenting his presentation, I added that the event was enjoyable and invigorating, unlike law school. A gentleman, the law professor smiled and said he would take that as a compliment. (I did not attend UA for law school, which undoubtedly is the reason for my misunderstanding

Linda Greenhouse

Panelists Dean Toni Massaro, Ted Cruz, Linda Greenhouse and Hon. Neil Wake

I never had the opportunity to sit down with the Founding Fathers at a Constitutional Convention. But last Friday, I—and a roomful of others—got the next-best thing.

That was the day in which the University of Arizona Law School celebrated Constitution Day. And they did it in the manner they do best—through mind-blowing smarts. Bravo.

Their plan, executed flawlessly, was to gather a distinguished panel of experts who could decipher Supreme Court and other cases. These cases, it was believed, could serve as a bellwether for the direction the Court was heading. Or not. Remember, panelists always reserve the right to point out that your mileage may differ from their prognostications.

The moderator did his part to keep the panel and the audience roused to a passionate and insightful pitch. In introducing each case in its turn, Professor David Marcus dispensed with a simplistic issue recitation in favor of crafting mini-vignettes. Each was a whirlwind, more tour de force than simple tour.

The effort and delivery he put into those moments signaled that the panel would be something out of the ordinary. I suspect, for instance, that those gathered in Philadelphia to sign the Constitution on September 17, 1787, would have rollicked quite a bit at Professor Marcus’s musings. Those gathered in a law school classroom certainly did.

Panelists, too, did their part to make the Constitution come alive (not that they all agreed it was “a living document”). The speakers were: former law school Dean Toni Massaro, esteemed Supreme Court advocate R. (Ted) Edward Cruz, Pulitzer Prize-winning writer (and now Yale Law Prof) Linda Greenhouse, and federal district court judge Hon. Neil Wake.

During a break, I spoke with an influential Arizona lawyer, and he marveled at the talented panel that the school had gathered. “Just listening to them,” he said, “I feel like I don’t know that much.” My writing hand and I agreed.

You can see some of what I tweeted that day (search for the hashtag #UAConstitution). I think they give you an idea about the wide-ranging conversation. What a tweet may not capture, however, is the breadth and passion of the panelists’ conversation. Those things came to the fore more than once, as the lawyers struggled to dissect the reasoning of a Court thrust into the public more and more often.

One point of the conversation may illustrate that.

Professor David Marcus

Judge Wake noted that Justice Scalia could be pointed in his opinion-writing, and he was disappointed that Justice Kagan had signaled a willingness to engage also in such muscular judging (my term, not Judge Wake’s).

Dean Massaro agreed, adding that the tenor of the Court is worsening, and that the benefit of pausing before engaging appears to be a declining art on the Court.

“The whole Court is becoming snap, snap, snap,” said Massaro. “When the Wall Street Journal says isn’t it great that Scalia is ‘delightfully brutal,’ it is no surprise that Justice Kagan may join in.”

She reiterated that point when she suggested that perhaps the Court would do well to take a pass on the lawsuits regarding the national health insurance reform law that are working their way toward the marble steps. (Judge Wake removed himself from the panel for that portion of the conversation.)

“The Court should restore a sense of the value of passive virtues. Leave the case alone for now.”

Disagreeing was Ted Cruz, who stressed that he hoped the law was found unconstitutional as soon as possible. He, Massaro and Greenhouse differed on whether the Court would—or should—find the law’s individual mandate unlawful.

Cruz said, “To uphold it would be to change us from a government of limited powers to a government of general powers.”

We shall see whose view a Court majority values. In the meantime, congratulations to the Law School for a stellar event.

More photos are on the Arizona Attorney Magazine Facebook page.

(I wrote about this panel discussion last week. Read it here.)

Tomorrow, a prestigious group of folks will gather to honor the United States Constitution. Because Friday is Constitution Day, similar (though perhaps less prestigious) groups may be chatting near you; Google it, get out there and constitutionalize!

The event (for which I’m still trying to clear my schedule so that I may attend) is at the University of Arizona Law School. The approach of their William H. Rehnquist Center on the Constitutional Structures of Government is to analyze five high-profile cases—whose resolution may tell us a lot about our nation and the Court.

Among those who will be speaking (full press release below) is Linda Greenhouse, formerly a reporter with the New York Times. She covered the United States Supreme Court and even wrote a book on Justice Blackmun.

In 2007, I had the opportunity to interview Greenhouse. Typically, reporters are not crazy about being interviewed themselves, but our meeting was a pleasure. You can read our Q&A here.

Here is the full press release. I hope to see you there (and if I’m there, I’ll post in various spots; keep your eyes peeled for #UAConstitution on Twitter).

13th Annual Constitution Day Supreme Court Review

The William H. Rehnquist Center will present a review of important cases decided during the most recent term of the United States Supreme Court at an upcoming public program:

Friday, September 16, 2011

1:00 – 4:15 p.m. (reception to follow)

James E. Rogers College of Law

1201 E. Speedway Blvd., Tucson, AZ

Ares Auditorium (Room 164)

The free presentation will be held in conjunction with a commemoration of Constitution Day, an annual event celebrated in schools and communities nationwide, marking the day in 1787 that the United States Constitution was approved by the state delegations to the Constitutional Convention and signed by thirty-nine of its framers.  The event is sponsored by the non-partisan Rehnquist Center at the James E. Rogers College of Law.  Additional information about Constitution Day is available here.

As space is limited, registration is recommended. Online registration is available here. Those interested in obtaining CLE credit should contact Marlene Cooksey at 530-626-5022 or via email at mcooksey@email.arizona.edu

Program panelists include:

  • Linda Greenhouse, New York Times Pulitzer Prize-winning journalist and author, and the Knight Distinguished Journalist in Residence and Joseph M. Goldstein Lecturer in Law at Yale University;
  • The Honorable Neil Wake, United States District Court, District of Arizona
  • R. (Ted) Edward Cruz, a partner in the law firm of Morgan Lewis, and head of the firm’s U.S. Supreme Court and Appellate Litigation Practice, former Solicitor General of Texas, and a former law clerk to Chief Justice William Rehnquist;
  • Toni Massaro, Regents’ Professor, Milton O. Riepe Chair in Constitutional Law and Dean Emerita of the James E. Rogers College of Law;
  • David Marcus, Associate Professor of Law, University of Arizona James E. Rogers College of Law, who will moderate the discussion.

The cases to be discussed are:

The Rehnquist Center was established at the James E. Rogers College of Law in 2006 and is dedicated to encouraging scholarship about, and public understanding of, the separation of powers, the balance of powers between the federal and state governments, and judicial independence.  Information on the Center is available here.