An Interview with Akhil Amar

Conducted by Mike Schmidt

Last year, Justices Roberts and Alito replaced Justices Rehnquist and O’Connor on the Supreme Court. What do you see as the most significant implications of the Court’s new composition?

We are witnessing with Alito and Roberts the culmination of a long-term change in the nature of the Supreme Court. I call it the “judicialization” of the judiciary. We’re seeing not only separation of powers, but a concrete separation of careers. The way you become a Supreme Court justice now is by working your way up the judiciary. For the first time ever all the members of the court are former judges. For the first time ever none of the members of the court have held a major elected office outside of the judiciary. For the first time ever we have a majority of justices who themselves were law clerks. We’re now witnessing a world where in order to reach the pinnacle of the judiciary, you work your way up through the judiciary paradigmatically, from clerkship to circuit court. All nine of the current justices aren’t just former judges, they are former federal judges; in fact, they are former federal appellate court justices and were all sitting federal appellate court justices at the time of their appointments. None of them was a governor. None of them was a cabinet officer. None of them was president of the United States. None of them was even mayor.

Is the “judicialization” of the judiciary a problem?

Well, it’s a change. John Marshall was a former congressman and former secretary of state. None of the justices from Marshall to Fuller had ever been a judge before being chief justice of the United States. Earl Warren: never a judge. Three chief justices in the twentieth century Stone, Hughes, and Rehnquist were appointed the court with no prior judicial experience. We’re in a different world. Some of the most famous justices of the past were prominent politicians: Warren was governor of California and the Republican vice presidential nominee. Charles Evans Hughes had run for president. William Howard Taft had been president. Samuel P. Chase was governor of Ohio and secretary of the treasury.

Many of the justices of the past stepped off the court to reenter the world of politics as well. John Jay left the chief justiceship to become governor of New York. Hughes left his position as associate justice to run for president against Woodrow Wilson.

Now you have to pick your branch at the beginning of your legal career. If you want to be a judge, you start out in the judicial branch and work your way up. If you want to be a politician, you start in one of the political branches. It is very hard, once you’re in those other branches, to jump tracks to the judiciary. That seems to me big news.

The Court has heard oral arguments for Parents Involved in Community Schools v. Seattle School District No. 1, a case concerning the constitutionality of the district’s race-based high school assignment plan. What will the Court rule? What should the Court rule?

Based on what I was able to discern from oral arguments and the observations of very astute court watchers, it seems to me that the justices were very skeptical that race could be used as such an important consideration and indeed a decisive factor in school assignments in the absence of a judicial decree to remedy past de jure segregation. The really interesting question is how narrowly or broadly they write an opinion. A broad opinion might call into question the use of race in college and post-graduate admissions.

The more narrow approach would be to leave those cases on the books, but perhaps undercut their logic to a degree and wait for a future case to revisit the issue.
I think we should expect an anti-Affirmative Action ruling. The question is how broadly or how narrowly the anti-Affirmative Action ruling will be. The big argument on the other side is that using race to integrate is very different than using race to segregate. Several students here at the law school were involved in the litigation and actually wrote a brief trying to show that the history of the Fourteenth Amendment allows certain kinds of use of race for integrationist purposes.

The Fourteenth Amendment has been subject to varied interpretations, both by judges and academics. In United States v. Morrison the Rehnquist Court cited the Civil Rights Cases of 1883 in its interpretation of the Fourteenth Amendment. What do you think of this?

I am very critical of the Rehnquist Court’s revival of the Civil Rights Cases of 1883, which in my mind are really similar to the later case of Plessey v. Ferguson. If you think Plessey was wrong, then its lone dissenter John Marshall Harlan was right, and he’s the same justice who dissented earlier in the Civil Rights Cases. If Plessey was wrong, the Civil Rights Cases were also wrong, and yet the Rehnquist court revived the Civil Rights Cases of 1883, and I think that’s really unfortunate.

There were lots of people who thought that, in effect, the Civil Rights Cases were all but overruled. When you read Brown v. Board of Education, here’s a sentence you will not find: Plessey is overruled. Brown basically undercut Plessey without formally overruling it. Later it became clear that Plessey had in effect been overruled. The Warren Court did the same thing to the Civil Rights Cases. It handed down a series of rulings that undercut the Civil Rights Cases but never formally overruled them, and many people thought that in effect they had been overruled. Like some vampire in a bad movie, the steak was not driven through the heart of them, and they have now come back from the grave to haunt us.

The Court is currently considering Gonzales v. Carhart, a case testing the constitutionality of the Partial Birth Abortion Act of 2003. What are your thoughts on this case?

One interesting question is whether this statute, which was adopted by Congress, will be given more deference than similar statutes adopted by individual state legislatures. The most relevant precedent is a case called Stenberg v. Carhart, which involved a law passed in Nebraska. That law was struck down, but it was only a state law. The Supreme Court historically has been more willing to strike down state laws than it has been eager to invalidate congressional statutes.

Since Stenberg v. Carhart, Justice O’Connor has been replaced by Justice Alito. What effect would this have in similar cases that may come before the Court?

This is a big deal. Justice Kennedy was actually in dissent in Stenberg v. Carhart; his vote is particularly important. He’s probably the swing-voter in such a case.

With many justices over age 70, the composition of the Court is likely to change again soon. What is at stake in the next election?

For much of American history, justices have been perceived to have timed their resignations so as to optimize the chances that they would be replaced by a like-minded justice. We’re in a time in which justices are sitting much longer than ever before. We’ve just ended a period of eleven years in which there were no vacancies. That’s the longest period in history that a nine-member Court has gone without a change in personnel. Many justices, like Chief Justice Rehnquist, wait until the end; there are few retirements these days. The next election concerns not just Stevens’ seat, for there are other justices that are over 70.
None of our major counterpart nations in the world has life tenure for its judges. Only one of the 50 states does. There is a better way of thinking about judicial independence, which is fixed terms 15-year terms or 18-year terms or mandatory retirements at a certain age.

One reason I like those models better than life tenure is that it’s easier to have a democratic conversation about the court at presidential election time. We discuss which seats will definitely come open and which issues will be in play because of those retirements. Now, because of life tenure, it’s more awkward we have to speculate, somewhat ghoulishly, about people’s health. It’s hard enough for us to have a thoughtful democratic conversation about the future of the court. It’s even harder because of life tenure, and that’s not really required by the idea of judicial independence. We could move to a model of mandatory retirement or fixed terms and it would be easier for “we, the people,” to see more clearly what’s at stake for the court in the next presidential election.

Do you recommend a constitutional amendment that ends life tenure on the Supreme Court?

I think that I would like to move to that model. It’s even possible that this could be done short of a constitutional amendment. There’s at least a thought that we could appoint people to the judiciary for life, but their tenure on the Supreme Court would be for a fixed term, after which time they’d still have their lifetime judicial appointment, but they’d serve the rest of it on some court other than the Supreme Court. Whether that’s a constitutional statute or not is open to some debate, but it’s not clear that we’d need an amendment.

The José Padilla saga continues to attract sustained national attention. How will this Court address the conflict between executive power and civil liberties?

It is true that in the early years of the so-called War on Terrorism the Supreme Court hung back just a bit. Perhaps in retrospect this was wise because it allowed us to see overly-exuberant claims of executive power. The country began to see that the executive branch was sometimes pushing to hard. The legislature began to see this, and the Court, by not ruling too quickly, preserved its ability to come in and say “no” at a time when that “no” was likely to stick. If they had said “no” very early on, that might have been good for the defendants in the case. But would it have been good if that judicial “no” had immediately generated a statute trying to overrule the judicial “no,” or a constitutional amendment to save us from the next 9/11?
One of my predecessors here, Alex Bickel, famously suggested that the Court could sometime choose to delay its ruling in order to allow the country to accept what the Court would say. In 1954 the Court handed down Brown v. Board of Education saying a state can’t have separate schools for separate races. And if that’s true, you really can’t have separate marriage laws either. But the Court didn’t pronounce that until 1967, because if they had announced that in 1954, it would have generated even more resistance to the effort to integrating public schools. Sometimes the Court may wait just a little bit in order that the country might evolve to a point where their ruling will be able to survive a possible political backlash. Maybe we are seeing some of that in the War on Terrorism.

The Court last term dealt the administration a serious setback in the Hamdan case, and Congress actually reacted by trying to overrule certain aspects of it. Had Hamdan come down this year rather than last there wouldn’t have been a statutory ruling the composition of Congress changed because the people thought that this administration had pushed too hard.

So the Court is taking a stand against executive power?

This court is beginning to say that unilateral exercises of executive power are suspect. If the president is going to do certain things, he’s going to need to show that the legislature has authorized them. That’s at a minimum. If certain things are going to be done at the expense of individual liberty, at a minimum we’re going to want Congress to authorize these restrictions.

Will the Court tackle the issue of gay marriage? If so, what will they rule? If not, why?

The Supreme Court has not really said anything that would require gay marriages. Many people thought that the logic of Lawrence v. Texas in which the Supreme Court struck down criminal sodomy laws meant that gay marriage was next and that the court was going to announce that gay marriage was constitutionally required. But the language of Lawrence v. Texas is much more modest. The court basically said in the case that laws criminalizing sodomy are not really enforced in most of the states, that this is really a small outlier practice, that this practice is dying on its own, and that we, the Court, are just accelerating that process a little bit, that we really are siding with majority of states that have chosen not to criminalize sodomy. So far there’s only one state that has gay marriage, and we’re very far on gay marriage from where we were on same-sex sodomy. Now, things are happening fast. Your generation is, I think, much more sensitive to the concerns of homosexuals than your parents’ generation has been. The Supreme Court hasn’t been leading the charge: it’s been in sync with the culture rather than ahead of it. It said no to the criminalization of sodomy only when the broad national culture said no. We’re not there yet as a national culture for gay marriage, but we may be in ten years. When it’s seen that the sky does not fall, when the Massachusetts experiment plays itself out, and when enough states actually move in that direction, then and only then do I predict that the Supreme Court might jump back in on the issue.

Chief Justice Roberts has called for a substantial pay increase for federal judges. Is his request warranted?

Well, it shows the power of framing and comparison. Compared to ordinary American citizens and taxpayers, federal judges make quite a respectable salary, thank you. Compared to other outstanding lawyers, they get paid very little their law clerks very soon after their clerkships will be making far more money than they are. It all depends on what comparison you make. When you compare yourself to your law school classmates, you’re not getting paid very much. When you compare yourself to what other hardworking, intelligent Americans are making, it’s a perfectly fine salary.
Many people who are federal judges come from varied backgrounds. Some of them have already made their money in practice. They have a certain financial independence, and they are taking a huge step down in pay. But they are serving their country, and there is prestige associated with it. Fewer of them come from backgrounds of government service, but some do. Sam Alito spent most of his life in government service, so he didn’t make a huge pile of money in private practice. A lot of his law school classmates whose grades weren’t as good as his are a lot wealthier than he is, but he’s led a life of government service. It would be unfortunate if lots of people felt they couldn’t afford to take a federal judgeship, and there probably are some people who say no because they think that they can’t afford it.

The chief justice’s job is really, in effect, to be the spokesperson, the advocate, for his branch of government. He’s not the chief justice of the Supreme Court he’s chief justice of the entire federal judiciary and chief justice of the United States. The idea that he really is judicial-administrator-in-chief, the judge-in-chief of an entire bureaucratic structure that includes about a thousand federal judges, is a model of the chief justiceship that was established by Yale’s own William Howard Taft, who, after he left the presidency, later became chief justice. He turned the position into an administrative position of sorts, where the job of the chief justice was to lobby Congress on behalf of the organized judiciary. Taft got through Congress a whole series of laws that made the life a federal judge a good bit better. There were issues of pay, there were issues of control over the court’s docket, and there was a streamlining of the administrative structure within the judiciary. Roberts sees his job as being the spokesperson for the other judges.
When I talk to judges they often complain about this, but they do so sort of quietly. Ordinary citizens don’t quite get it.

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