After Justice Scalia’s loss of life, I mourned not solely his passing, however the truth that we’d now not have any new Scalia writings. To today, nobody on the Court docket can maintain a candle to Scalia’s writing. Fortunately, the discharge of Justice Stevens’s papers has given us new insights into Scalia’s prime-time on the Court docket. CNN shared a four-page memo that Scalia wrote to the convention regarding Clinton v. Jones. This necessary case held that President Clinton was not immune from civil litigation for acts that arose earlier than he turned president. Justice Stevens wrote the bulk opinion for a unanimous Court docket.
Clinton v. Jones was argued on January 13, 1997. The memorandum was circulated on April 4, 1997. If I needed to guess, Justice Stevens’s draft majority opinion was circulated sooner or later in March. CNN didn’t share the draft opinion, although the construction appears to have modified. Scalia means that the opinion concluded with Half VI. However the revealed opinion has eight elements. It’s potential to match Scalia’s advised edits, with the ultimate model, to see whether or not Stevens adopted these revisions. Listed here are 9 highlights.
First, Scalia objected to the ultimate paragraph of the introductory paragraph:
The introductory paragraph ends: “Regardless of the drive of the arguments supporting the President’s submissions, we conclude that they should be rejected.” I occur to assume there’s not a lot drive to these arguments, however that’s only a secondary objection. The principal objection is that this: We don’t usually announce the relative power of the arguments our opinions reject, and right here there’s particular motive not to take action. Youngstown and United States v. Nixon have been equivalently political circumstances. In neither of them does our opinion comprise any apart about how affordable the President’s place was. We must always do the identical right here.
Stevens ignored that revision. His introductory paragraph concluded with that very same line:
Regardless of the drive of the arguments supporting the President’s submissions, we conclude that they should be rejected.
Second, Scalia objected to the primary paragraph of Half V:
The opposite level at which I get the uneasy feeling we’re flakking for the White Home is within the first paragraph of Half V, which begins with the assertion that the President has “superior a robust argument” supporting his immunity, after which goes on to clarify, fairly gratuitously, that the President shouldn’t be claiming royal prerogatives, or asserting that he “is in any sense ‘above the regulation.”‘ Royal prerogatives vel non is a degree of regulation, I suppose, however whether or not the assertion of any type of presidential immunity quantities to a rivalry that the President is “above the regulation” is preeminently a matter of opinion, and we will let the editorial writers argue about it. I feel we carry out an inappropriately political perform in taking a place on the purpose. I counsel saying, within the final sentence of the primary paragraph, merely “We conclude that the President’s arguments should be rejected.” In Half V, I suggest dropping the phrase “highly effective” within the first sentence, and deleting the rest of the paragraph, besides the final sentence, which I might introduce considerably in a different way: “He contends that his declare is supported by the character of the workplace that was created by Article II of the Structure, and by separation of powers rules, and so forth.”
The primary paragraph of Half VI makes use of slightly-toned down language, however makes the identical level about “above the regulation.” Stevens modified “highly effective argument” to “strongest argument.”
Petitioner’s strongest argument supporting his immunity declare is predicated on the textual content and construction of the Structure. He doesn’t contend that the occupant of the Workplace of the President is “above the regulation,” within the sense that his conduct is solely immune from judicial scrutiny
Aside from altering “highly effective” to “strongest,” Stevens appeared to ignore the proposed revisions.
I’m very confused by CNN’s commentary right here. Devon Cole wrote:
Scalia urged Stevens to chop from early drafts references to “the drive of the arguments” made by Clinton’s attorneys, in addition to an element the place the liberal justice writes that the then-president “superior a robust argument supporting this immunity declare that’s based mostly on the textual content and construction of the Structure.” The latter sentiment, Scalia wrote, gave him “the uneasy feeling we’re flakking for the White Home.” Earlier than Stevens might reply in full to Scalia’s issues, at the least one different member of the courtroom spoke up in assist of the strategies: Justice Anthony Kennedy. “I feel Nino’s studying of the opinion is efficacious and insightful. I endorse all his feedback and hope you possibly can settle for them,” Kennedy stated in a word to Stevens. Stevens did finally settle for the adjustments, and he conceded to Scalia in a response memo that he might need taken some liberties in his early drafts.
The phrase about “drive of the arguments” stays within the opinion. And “highly effective” was modified to “strongest.” It’s deceptive to say Stevens accepted these adjustments. Joan Biskupic additionally appears to have misinterpret the import of Justice O’Connor’s memo in Bush v. Gore. O’Connor mainly wrote what would change into the Rehnquist concurrence, however later O’Connor finally joined Kennedy’s extra reasonable opinion based mostly on the Equal Safety Clause. Derek Mueller makes this level persuasively. I do know there’s a rush to publish shortly, however these articles weren’t accomplished effectively. The Stevens papers should not going anyplace. They are often mined over time.
Again to Clinton. Third, Justice Scalia objected to a footnote that cited a tutorial amicus temporary. His criticism is sharp.
On web page 4, I strongly dissent from footnote 4, the encomium to the litigating professoriate. I didn’t discover that their briefs added a lot substance to what was already within the scholarly literature, and I frankly doubt that was the aim. Signal-on, multiple-professor amicus briefs in a case akin to this are for my part a political relatively than a tutorial train; partisanship, and sure, even hopes for preferment, play an element. I didn’t signal on to such briefs myself within the days once I was a tenured tutorial, and I object to our applauding them right here.
Bravo. The criticism of scholarly amicus briefs has gained traction up to now decade. I am glad Scalia was forward of the curve means again in 1997.
Justice Stevens did, in actual fact, delete the “encomium to the litigating professoriate.” This beautiful flip of phrase jogs my memory of a barb Scalia unloaded on Alan Gura throughout argument in McDonald v. Chicago, regarding the Privileges or Immunities Clause
Antonin Scalia: And if the reply isn’t any, why are you asking us to overrule 150, 140 years of prior regulation, when—when you possibly can attain your outcome beneath substantive due—I imply, you already know, except you are bucking for a—a spot on some regulation faculty college–
[Laughter]
Alan Gura: –No. I’ve left regulation faculty a while in the past, and this isn’t an try to—to return.
Antonin Scalia: Effectively, I imply, what you argue is the darling of the professoriate, for certain, however it’s additionally opposite to 140 years of our jurisprudence.
Scalia’s wit got here by way of, whether or not in a ready memo or an ad-libbed remark from the bench.
And for these curious, the regulation professor amicus temporary he talked about was ready by Professors Pam Karlan and John Jeffries, each at UVA on the time. The temporary was signed by 16 professors, together with Akhil Amar, Richard Fallon, Dan Farber, Phil Frickey, Sandy Levinson, Judith Resnick, Kathleen Sullivan, and Laurence Tribe. Talking of Tribe…
Fourth, Justice Scalia objected to a footnote that cited Professor Tribe’s treatise.
For a unique motive, I object (much less strenuously) to the educational quotation (with citation) in footnote 12 on web page 9. Does the Supreme Court docket of the US should rely on Prof. Tribe for such an apparent proposition, set forth so clearly in its circumstances? Are we selling his e-book?
Scalia’s much less vigorous dissent did not work right here, as Footnote 12 did in actual fact cite Tribe for a really “apparent proposition.”
As a result of the Supremacy Clause makes federal regulation “the supreme Legislation of the Land,” Artwork. VI, cl. 2, any direct management by a state courtroom over the President, who has principal accountability to make sure that these legal guidelines are “faithfully executed,” Artwork. II, § 3, might implicate issues which can be fairly completely different from the interbranch separation-of-powers questions addressed right here. Cf., e.g., Hancock v. Prepare, 426 U.S. 167, 178–179, 96 S.Ct. 2006, 2012–2013, 48 L.Ed.2nd 555 (1976); Mayo v. United States, 319 U.S. 441, 445, 63 S.Ct. 1137, 1139–1140, 87 L.Ed. 1504 (1943). See L. Tribe, American Constitutional Legislation 513 (2nd ed.1988) (“[A]bsent express congressional consent no state might command federal officers … to take motion in derogation of their … federal duties”).
Fifth, Scalia objected that the opinion left open the query whether or not a state courtroom might compel the President’s attendance at a listening to:
I’m glad that the opinion makes clear (at web page 9) that we aren’t addressing the query whether or not a courtroom might compel the attendance of the President at any particular time or place. I agree with Sandra {that a} courtroom couldn’t take that step. I’m involved, nonetheless, that the best way during which Half V of the opinion frames the President’s argument, and our response to it, suggests a solution to the left-open query. The President’s argument is launched as follows (web page 13): “[P]etitioner contends that he occupies a novel workplace with powers and duties so huge and necessary that the general public curiosity calls for he be continually obtainable to discharge his duties and to take care of unanticipated emergencies that will come up at any second.” (Emphasis added.) . . . . (a) Within the second paragraph on web page 13 (which introduces the President’s argument), exchange “he be continually obtainable to discharge his duties and to take care of unanticipated emergencies that will come up at any second” with “he commit his undivided time and a spotlight to the duties of his workplace.”
Stevens made the precise revision Scalia proposed:
As a beginning premise, petitioner contends that he occupies a novel workplace with powers and duties so huge and necessary that the general public curiosity calls for that he commit his undivided time and a spotlight to his public duties.
Scalia urged Stevens to make a number of revisions regarding the burden on the President:
(b) Within the third line from the underside on web page 17, exchange “impose an unacceptable burden on the President” with “impose an unacceptable burden on the President’s time and power.”
(c) In strains 2-3 on web page 19, exchange “impose vital burdens on the Govt Department” with “considerably burden the time and a spotlight of the Chief Govt.”
(d) Within the third sentence of the second paragraph on web page 21, exchange “the burden on the Workplace of the Current that could be a mere by-product” with “the burden on the President’s time and power that could be a mere by-product.”
Stevens adopted these change:
(b) As a factual matter, petitioner contends that this explicit case—in addition to the potential extra litigation that an affirmance of the Court docket of Appeals judgment may spawn—might impose an unacceptable burden on the President’s time and power, and thereby impair the efficient efficiency of his workplace.
(c) The truth that a federal courtroom’s train of its conventional Article III jurisdiction might considerably burden the time and a spotlight of the Chief Govt shouldn’t be ample to determine a violation of the Structure.
(d) The burden on the President’s time and power that could be a mere byproduct of such evaluation absolutely can’t be thought of as onerous because the direct burden imposed by judicial evaluation and the occasional invalidation of his official actions.
Sixth, Justice Scalia provided what he referred to as a cri de coeur. Justice Stevens provided examples of how the separation of powers restricts the Congress and the President, however had solely a single instance of comparable restrictions on the Court docket!
This subsequent remark is probably extra of a cri de coeur than one thing you possibly can treatment: On web page 16, after describing a couple of of the actually vital respects during which this Court docket has imposed separation-of-powers restrictions upon Congress (Plaut, Metropolitan Washington Airports Authority) and upon the Govt (Youngstown), the one factor we will give you for a separation-of-powers restriction upon ourselves is that we can’t concern advisory opinions. Appears fairly trivial, at the least to the unsophisticated; and never one thing we’d be more likely to lust after. It will have been good to give you a extra self-denying example-and maybe one later than the administration of George Washington. A couple of years in the past we had a possibility to say that we can’t impose taxes, however even that proved an excessive amount of for us. See Missouri v. Jenkins, 495 U. S. 33 (1990). The comparability with the constraints we now have positioned on the opposite branches makes us look fairly dangerous. Are you able to consider any issues we want to try this we now have stated we won’t do?
Certainly there should be one thing greater than the prohibition on advisory opinions, proper? Not a lot. Justice Stevens got here up with one different comparatively minor instance:
And, the judicial energy to resolve circumstances and controversies doesn’t embody the availability of purely advisory opinions to the Govt,33 or allow the federal courts to resolve non justiciable questions.34
Footnote 34 cites Luther v. Borden, Nixon v. United States, and Baker v. Carr. Not a lot of a self-imposed constraint. CNN studies on a memo Stevens wrote to Scalia:
“Many thanks in your considerate and constructive letter. I’m significantly grateful in your cri de coeur, for which I’ve a response,” he wrote partially.
Seventh, Scalia provided revisions to the paragraph discussing Youngstown. Particularly, Scalia made clear that the President hardly ever takes motion by himself. Slightly, the President directs his subordinates to implement the regulation. Certainly, the passive voice of the Take Care Clause acknowledges this precept. The President doesn’t personally execute the regulation. Slightly, he “shall take care that the regulation be faithfully executed” by others. My colleague Seth Barrett Tillman has made this level earlier than.
On web page 19, it appears to me that the paragraph coping with Youngstown ought to make it clear that our energy to maintain the President’s official actions inside the regulation has to this point been exercised solely when the President acts by way of subordinates. Two adjustments would suffice: (a) increase the primary sentence, as follows: “First, we now have lengthy held that when the President takes official motion by way of subordinates (which is after all how he virtually at all times conducts the nation’s enterprise), the Court docket has the authority, and so forth.”; and (b) change the fifth line from the top of the paragraph to learn: “resolve whether or not the conduct that the President directed the Secretary of Commerce to interact in conformed to the regulation.”
[c] Conforming adjustments must be made within the final paragraph on web page 21: Within the second sentence, “by reviewing the legality of the President’s official conduct” must be modified to one thing like “by reviewing the legality of official motion taken on the President’s course”; [d] and within the third sentence, “invalidation of his official actions” must be modified to one thing like “invalidation of official motion taken at his course.”
Stevens didn’t make both change:
(a) First, we now have lengthy held that when the President takes official motion, the Court docket has the authority to find out whether or not he has acted inside the regulation.
(b) Regardless of the intense impression of that call on the power of the Govt Department to perform its assigned mission, and the substantial time that the President should essentially have dedicated to the matter because of judicial involvement, we exercised our Article III jurisdiction to resolve whether or not his official conduct conformed to the regulation.
(c) If the Judiciary might severely burden the Govt Department by reviewing the legality of the President’s official conduct, and if it could direct acceptable course of to the President himself, it should observe that the federal courts have energy to find out the legality of his unofficial conduct.
(d) The burden on the President’s time and power that could be a mere byproduct of such evaluation absolutely can’t be thought of as onerous because the direct burden imposed by judicial evaluation and the occasional invalidation of his official motion.
Eighth, Scalia objected to inserting the “historic document” in a footnote.
On web page 22, placing all of the “proof from the historic document” right into a footnote shouldn’t be significantly flattering to the speculation of constitutional interpretation that locations major reliance on such supplies. I agree that the historic document is inconclusive, however placing all of it in a footnote means that even when it have been clear it might be solely marginally related. In actual fact, nonetheless, if the historic document have been clear, I might way more be guided by it than by the separation-of-powers dialogue within the textual content. It appears to me you may simply put most or all of this within the textual content of the opinion, on the very finish of Half V. It will even look higher.
Right here, Stevens adopted Scalia, and positioned the historic materials within the physique of the paragraph.
Ninth, Scalia urged Stevens to drop the penultimate paragraph of the opinion:
On web page 27, I urge you to drop the penultimate paragraph of the opinion. If that paragraph stated merely “Congress can present better safety for the President,” it might be merely superfluous (there isn’t a real-world chance of such laws). In actual fact, nonetheless, all of the paragraph says is that Congress might go “acceptable laws” to provide the President “stronger safety,” though after all (footnote 38) any laws giving the President stronger safety is likely to be inappropriate, i.e., unconstitutional-we’re not saying. This looks as if pettifogging, and it might be higher to say nothing. Certainly it’s self-evident that denying the existence of a constitutional proper says nothing (both means) about Congress’s skill to create a statutory proper.
Stevens left that paragraph within the opinion:
If Congress deems it acceptable to afford the President stronger safety, it could reply with acceptable laws. As petitioner notes in his temporary, Congress has enacted a couple of statute offering for the deferral of civil litigation to accommodate necessary public pursuits. Temporary for Petitioner 34–36. See, e.g., 11 U.S.C. § 362 (litigation in opposition to debtor stayed upon submitting of chapter petition); Troopers’ and Sailors’ Civil Reduction Act of 1940, 50 U.S.C.App. §§ 501–525 (provisions governing, inter alia, tolling or keep of civil claims by or in opposition to navy personnel throughout course of energetic obligation). If the Structure embodied the rule that the President advocates, Congress, after all, couldn’t repeal it. However our holding as we speak raises no barrier to a statutory response to those issues.
It’s fascinating to see how rigorously Justice Stevens, who had a transparent majority, adopted Justice Scalia’s feedback.