On the first day of law school, my constitutional law professor gave the class a homework assignment: go home tonight and read the Constitution.

That didn’t take long. Nor that night did the Constitution seem especially complicated, at least compared with the old English cases we were assigned to read in other first-year courses like torts and contracts. Even students who, like me, didn’t know a tort from a contract had been exposed in college and earlier to some formal learning about the Constitution. Read more…

Irish law prohibits all abortions except those necessary to save a woman’s life, and as a practical matter it imposes daunting obstacles to terminating life-threatening pregnancies as well. In a secularized Europe, Ireland is noticeably out of step. Of the 47 countries covered by the European Convention on Human Rights, only in the fairytale countries of Andorra, Malta and San Marino, where all abortions are illegal, is the law any stricter.

So a decision earlier this month from the European Court of Human Rights in the Case of A, B, and C v. Ireland, promised to be of more than routine interest. A challenge to the Irish law brought by three women asserting rights under the European Convention, it held the potential to express a Continent-wide consensus that abortion rights are human rights.

Indeed, the initial news reports in this country, at least in headlines, indicated that this is what had happened. The European court awarded 15,000 euros, about $20,000, to Plaintiff C, a cancer patient who feared that her life was at risk from an unintended pregnancy and who, like Plaintiffs A and B and thousands of other Irish women every year, had to leave the country to obtain an abortion.

But a closer reading of the 40,000-word decision tells a different story. Read more…

It has been 15 years since the Rehnquist court began applying the constitutional brakes to assertions of federal power that had seemed unassailable since the New Deal. Its first target was modest, a five-year-old federal statute called the Gun-Free School Zones Act that most people had never heard of, which made it a federal crime to possess a gun within 1,000 feet of a school.

The vote in United States v. Lopez was 5 to 4. Chief Justice William H. Rehnquist wrote the court’s opinion, observing that the Constitution’s commerce clause did not confer on Congress a general police power disconnected from the regulation of economic activity. To uphold this statute, he said, would be to blur the “distinction between what is truly national and what is truly local.” For the first time since 1936, the Supreme Court struck down a federal law as exceeding Congress’s commerce power. In dissent, Justice David H. Souter warned that “it seems fair to ask whether the step taken by the court today does anything but portend a return to the untenable jurisprudence from which the court extricated itself almost 60 years ago.”

Thus began the Rehnquist court’s federalism revolution, Read more…

Watching the post-retirement emergence of Justice John Paul Stevens is almost enough to make me a fan of term limits for Supreme Court justices.

Manuel Balce Ceneta/Associated Press Justice John Paul Stevens

Not to be misunderstood — I’m not suggesting that Justice Stevens should have ended his 35-year Supreme Court career a moment sooner than he did. But his new role as public truth-teller, not to say as aging rock star — posing in Wrigley Field’s empty bleachers for the benefit of the “60 Minutes” cameras and pointing to where, at the age of 12, he saw Babe Ruth hit his famous “called shot” home run in the 1932 World Series — makes me think what a great public resource Supreme Court justices can be if they retire with the appetite for living a public life and the vitality to do it. Read more…

“America has reached a fork in the road, and the time has come to make a decisive choice,” Daniel J. Popeo, chairman of the Washington Legal Foundation, wrote this week in his monthly column in The Washington Examiner. The choice he posited was between continuing to endure judicial intervention in the conduct of the war on terrorism and “returning control over national and homeland security decisions to the executive and legislative branches.”

I don’t mean to single out the Washington Legal Foundation, a respected conservative research and litigation organization. It is hardly alone in its ritualized framing of a dichotomy between law and national security.

And that’s the point. Read more…

Justice Sonia Sotomayor is accustomed to being underestimated and to surpassing the expectations of her doubters. So I’ll wonder if she even took the time to ponder the leak last week of a May 2009 letter to President Obama from a famous Harvard law professor lobbying for the selection of Elena Kagan to replace Justice David H. Souter, whose retirement had recently been announced. I’m quite sure it is the professor, Laurence H. Tribe, rather than Justice Sotomayor, who is mortified by the revelation that he had dissed the soon-to-be-nominee, a graduate of Princeton and Yale Law School, as “not as smart as she seems to think she is.”’

(Memo to self: Remember always to speak generously about others when sending the president a letter — which, even if not leaked by your enemies in close to real time, is bound to end up eventually in a presidential library.)

Professor Tribe told Charlie Savage of The Times last week that his early reservations about Sonia Sotomayor — who of course has since been joined on the Supreme Court bench by Justice Elena Kagan — have been “happily negated by her performance as a justice thus far.”

This episode, which needless to say has been the talk of the law school where I teach, reminds me that most people are probably unaware of how, or what, Justice Sotomayor has been doing since she joined the court in August 2009. Read more…

As 1997 wound down, Bill Clinton was in the White House, the Republicans controlled the Senate, and the Clinton administration’s judicial nominees were going nowhere. Nearly one in 10 federal judgeships was vacant, a total of 82 vacancies, 26 of which had gone unfilled for more than 18 months. In Democratic hands back in 1994, the Senate had confirmed 101 nominees. In 1997, under the Republicans, the number dropped to 36.

On New Year’s Eve, a major public figure stepped into this gridlock. He was a well-known Republican, and although he had set aside overt partisanship, his conservative credentials remained impeccable. He had given no one a reason to think he was favorably disposed toward the incumbent administration or its judicial nominees. Yet there he was, availing himself of a year-end platform to criticize the Senate and to warn that “vacancies cannot remain at such high levels indefinitely without eroding the quality of justice.”

His name was William H. Rehnquist, chief justice of the United States, using his annual year-end report on the state of the federal judiciary to declare that with “too few judges and too much work,” the judicial system was imperiled by the Senate’s inaction. Read more…

The attraction of reading what a sitting Supreme Court justice has to say about interpreting the Constitution is undoubtedly what has turned Justice Stephen G. Breyer’s new book, “Making Our Democracy Work,” into a surprise best seller. Commentators and reviewers have also emphasized the Constitution-related passages in the book, particularly Justice Breyer’s cogent analysis of why “originalism” falls short and why the interpretive goal should be to engage with the framers’ deepest values rather replicate their 18th-century frame of reference. His point, as the book’s title suggests, is for judges to make their way through the mists of history to a Constitution that works today.

These portions of the book are illuminating but perhaps just a bit familiar. After all, Justice Breyer and Justice Antonin Scalia, the court’s proud avatar of a non-living Constitution, have been debating their respective visions for years, both before live audiences and on the pages of United States Reports, the official volumes that collect the Supreme Court’s decisions.

My attention was riveted by another chapter that actually may be the book’s most important contribution to public understanding of the court’s work. Read more…

New Haven

When the Supreme Court begins its new term Monday morning, the fact that there are three women on the bench, thanks to the arrival of Justice Elena Kagan, will receive the most attention. But another fact about this first Monday in October should not go unnoticed. The three women and the six men who will emerge along with them from behind the courtroom’s velvet curtain at 10 o’clock constitute the fourth Roberts court.

Turnover on the Supreme Court has been unusually fast since John G. Roberts Jr. became chief justice five years ago, ending a period of 11 years with no change at all.

As the court’s personnel shifts, so does its collective personality, inevitably but not necessarily predictably. So on the eve of another First Monday, it’s worth taking a look back as well as forward.

The first Roberts court lasted only five months, from October 2005 through January 2006, while Justice Sandra Day O’Connor, awaiting confirmation of her successor, remained in place.

That brief honeymoon now seems a distant memory. Conflict was suppressed as the justices produced narrow opinions that papered over deep differences among them on such contested issues as abortion and federalism. Commentators celebrated the new chief justice as the consensus-builder he had vowed to try to be. More than half the term’s decisions were unanimous. Read more…