My Monday Afternoon

October 20, 2014

Monday afternoon, I attended a lecture at the Sandra Day O’Connor College of Law at Arizona State University. Harvard Law School Professor Laurence Tribe spoke for two hours, with a final one-hour panel—I had to dash—led by MRW reader Gary Stuart. For lay readers, it takes someone special for me to give up an afternoon, drive to Tempe, walking onto the ASU campus, etc., and this one was an easy call! (Three hours of continuing education credits—the early departure left me with two—factored into my decision to attend.)

The lecture grew out of Professor Tribe’s new book, Uncertain Justice:  The Roberts Court and the Constitution. Professor Tribe focused on four segments, or quartets, given each about 30 minutes. First up:  Who’s Afraid of Divided Decisions, where Professor Tribe posited that 5-4 decisions = bad and 9-0 decisions = good misses the point at best and, at worst, misses opportunities. I enjoyed this quartet most, for I believe we are too often stymied by notions that we should “just get along,” “find the middle ground,” and be bi-partisan. (I’m a big fan of compromising and, soon, I’ll explain why comprising differs from the other concepts.)

As part of the first quartet, Professor Tribe mentioned areas where there is no disagreement, and bad decision-making. He talked about class actions and arbitration, areas where the Court routinely finds unanimity/near-unanimity and leaves regular people with no effective remedy for wrongs. Interestingly, Professor Tribe does not attribute these outcomes to a pro-corporations mentality; instead, he talked about how none of the justices have tried a case to a jury, how Court decisions reflect a lack of faith in the  civil justice system as an effective means for regulating conduct, and about evident faith in arbitrators and other paid “experts.”

He also discussed cases where forced unanimity may leave a minority point of view behind. In an interesting counter-factual, he wondered how the nation might have accepted Brown v. Board of Education if those not fully in agreement with the majority had written dissents. (He didn’t sell me, for I think his perspective does not appreciate the depths of racism, but his comments have me thinking.) He also discussed cases where a dissent has provided an intellectual or political focal point for future decisions on an issue. (He discussed Olmstead v. United States, where Justice Lewis Brandeis dissented on privacy grounds in a wiretapping case. More recently, we saw a similar situation when the dissenting point of view in Bowers v. Hardwick became the majority’s decision in Lawrence v. Texas, in the cases regarding private consensual sex between consenting adults.) Finally, he did not leave out U.S. Windsor, where Justice Antonin Scalia’s hoary dissent predicted that the majority was forcing courts to permit same-sex marriage.

The remaining three quartets discussed the First Amendment (Nine justices; nine perspectives), How a “Humble Member of the Cabbage Family Nearly Hobble[d] President Obama’s Signature Domestic Achievement – and What are the Main Lessons for Constitutional Chefs?,” and separation of powers/federalism issues. Interesting material, some of which I will discuss in future posts.

Professor Tribe was delightful and informative, even for a generalist like me with a pretty thin understanding of con law. (I did get one of my few As in law school in Con Law, but I took the class more than 35 years ago.) I am going to close with a brief anecdote he shared, but before I do I need to share my biggest takeaway, and one I too often fail to remember:  When something worthwhile and rare stands before you—whether it’s a lecture, a trip, or even a lunch with your visiting daughter, despite very  busy day—take it!

Professor Tribe is an extraordinarily accomplished man, without any significant amount of evident pretense. (He surely has an ego; accomplished people in public life do. It simply was not evident on this afternoon.) So in the discussion about broccoli—which was, of course, about the Affordable Care Act—he mentioned having been in the national college debate finals in 1961, where the affirmative argument was:  Resolved, that the United States should have universal health care. He and his partner argued the affirmative and won, 4-3. He suggested, after reporting on this part of his past, that he was not sure what was more surprising:  That we would not have “universal health care” for 49 years, that his former research assistant at Harvard Law School, an African-American man named Barack Hussein Obama, would be the President of the United States who signed the bill, or that another former research assistant, Elena Kagan, would vote to uphold the ACA as one of three women sitting on the United States Supreme Court. We’ve come far in 50+ years, but often without any sense of urgency!



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