Neal Katyal

How to Craft Constitutional Consensus

Air Date: April 25, 2015

Neal Katyal explains how the Supreme Court is forging a new era of compromise.

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I’m Alexander Heffner, your host on The Open Mind. On today’s program, we’ll consider critically the most powerful unelected decision-makers in American democracy: the nine Justices who sit on the United States Supreme Court.

Our guest, Neal Katyal, is former U.S. Solicitor General for the Obama Administration, a highly-decorated lawyer who has successfully argued numerous cases before the High Court. Now, he’s partner at the prestigious firm Hogan Lovells, the Saunders Professor at Georgetown Law and widely considered a possible Supreme Court nominee.

From his argument in the landmark 2006 case Hamdan v. Rumsfeld, which led to the Court’s invalidation of the system established to try enemy combatants in Guantanamo Bay to more recent decisions, Katyal’s knowledge of the America’s constitutional system and its machinery is exhaustive.

I want us to consider his assertion for a moment that the Court, despite the appearance of hyper-partisanship along the lines of 5 to 4 votes, is actually forging a new era of compromise.

And given the entrenched ideological conflict in the cases public opinion dictates to be most consequential, let us interrogate what he calls a “powerful new consensus.” And to Neal Katyal, I ask the first question: If we’re on a path from Constitutional crisis to Constitutional consensus, how can the Justices find greater harmony – to remove the political considerations in effect – in the social issues on which they seem so bitterly, still, to be divided. And welcome Neal Katyal.

KATYAL: Well, thank you, thank you so much for having me. It’s a great question. And, you know, I don’t think that … and my point is not that the Supreme Court is forging compromise left and right. It’s rather that they’re trying to find common ground, but still adhering to principle in a way that’s fairly unique.

So if you look statistically at the last Supreme Court term that just ended, the Supreme Court agreed 9 to 0 in two-thirds of it’s decisions.

That’s very unusual. You’ve got nine Justices, five appointed by Republican Presidents, four by Democratic Presidents … one would expect a lot more conflict. Indeed, you’d have to go back to the year 1940 to find another Supreme Court term when you had that much agreement.

So what’s going on? What, what’s that about? Well, I think one thing that’s going on is that Chief Justice Roberts along with some of his colleagues, Justice Breyer in particular, I think, have said, “Look, can you try and find places in which we can still establish principles, not, you know, speak with a muted voice. But where we can cross lines and find that common ground.”

And, you know it’s, it’s really quite inspiring to see, I, I am fortunate to live in Washington, DC, but I look across the street from the Supreme Court, at the Congress, I look at The White House and administration after administration and you see so much kind of rancor and partisanship. And boy, you think about it … these nine Justices have forged this path forward in which they’re working together, there’s deep respect among all of them.

I mean I think Justice Kagan, I think one of her closest friends on the Court is Justice Scalia. Same with Justice Ginsberg and Justice Scalia. Justice Breyer, the Chief, there’s all sorts of just wonderful relationships that have developed and, you know, I think one great thing about a program like yours is that it allows the public into that … a little bit of a window, into that to say, “You know, not everyone in the government (laugh) is at each other’s throats”.

And sure, there’s disagreement and your question asked about the social issues and my point in the, in the OpEd was not to suggest that we’re going to have 9 to 0 decisions on abortion, on school prayer … you know, those are things in which Justices have very strong views, and indeed, they get nominated by President for those views. It’s not a surprise that President Clinton put Justice Ginsberg on the Court, who was pro-choice and it’s not a surprise that Republican Presidents have put some pro-life Justices on the Court. Elections have consequences and I don’t think any of us wants a Supreme Court to be so compromise driven that they start to back-track from, you know, who they are fundamentally. You know they each stand for a certain view, a certain vision … and, and yet at the same time, if they can find places to agree, they should.

And, and let me just give you one very concrete example of that which is the cell phone case, the cell phone privacy that the Supreme Court decided just a, you know, a few months ago. And the case was about if the government stops you and you have a cell phone … can the government search your cell phone?

Well, you know, there had been an old Supreme Court case that said if you’re stopped, you know, and you have a crumpled up cigarette container and there may be, there was heroin in it … yes, they can open it up and look and see what’s inside.

The Supreme Court said, “Yeah, that search is okay.” Well, here nine Justices all joined this opinion that said, “Nope, not in this age”. ‘Cause your cell phone now, with the smart phone is really unlike that cigarette case. It may have, you know, you’re romantic relationships, it has your health information, your financial information, so much stuff and they said, “You know, the law … the world has changed and we, the Supreme Court, need to change with it.” Nine to zero … the Justices on the Left and Right, the most law enforcement justices, the most pro-defendant Justices, all coming together to write a powerful opinion in favor of criminal defendants. Very striking.

HEFFNER: I mean you point out that a cell phone or a smart phone is a passport to so much information about that particular constituent or constituency. But what you’re describing as an example, of a case where they were able to forge compromises, one of which in which there was a bit of the humanity of 2014 or ’15 or ’16 and beyond the real life circumstances. And does that give more credibility to the living Constitution argument as opposed to a strict Constructionist argument?

KATYAL: So there are kind of two classic views in the Constitution. One is, I think is espoused well by Justice Scalia, the strict construction … the Constitution means what it mean in 1787 or if it’s a latter Amendment like the Equal Protection clause enacted in 1868, it means what it meant in 1868 … that they have pretty fixed meetings. And there is this other view which I, I don’t actually think there’s any strong adherence on the Court to now, but Justice Marshall … Thurgood Marshall was a strong believer in this idea of a living Constitution, that it evolves and changes over the times.

And I think, you know, the problem with both camps is there are different clauses in, in the Constitution and they mean very different things. So the phrase in the Eighth Amendment “Cruel and unusual punishment”. Well by definition, “unusual” is going to be different. I mean I don’t think we’re going to play by 1787 rules on “cruel and unusual punishment”, you know, that … tarring and feathering … quartering, you know all these things may have been not unusual then, and therefore not unconstitutional then, but now, in this day and age, if a state decided to implement the death penalty through one of these very horrific means, I think almost everyone on the court, maybe everyone would say “That’s a violation of the Eighth Amendment, that is cruel and unusual”.

By contrast other clauses in the Constitution have a very fixed meaning. The President shall be, you know, you have to be 35 to run for President. Ahem, you know, that means 35 … there are some clever scholars who said, “Well, 35 life expectancy in 1787 is different than now. But I think the Founders gave us a very strong textural clue that they want that to mean the same thing. 35 is always 35.

And then there are clauses that, you know, fall in different places. And one of the wonderful, robust debates on the court right now is which clauses fall where? And so with cell phone privacy, you know, it’s unreasonable searches and seizures, that the language of the Fourth Amendment.

Well unreasonable really does move with the times. You know, James Madison could not have imagined a smart phone, it just was so outside of his realm of comprehension. But he did know what an unreasonable search looked like. And then you can ask yourself what would James Madison have thought were he alive today? You take the principles, what was he so upset about in “search and seizure”? And then say, “Is this like that?”

And yeah, it turns out that this is like that … it looked a little bit like what the … King George the Third did with his general warrants, being able to go and rummage through anyone’s house, looking for any thing incriminating and then arrest them for it.

Same thing with the cell phone, you know. If I look at your cell phone, we’ll find some good stuff on there. (Laugh)

HEFFNER: The Republican appointed Justices … they don’t apply this logic to the Second Amendment, for example. And I want you to get into the weeds of why texturally that, you know, they’re forbidden from doing that. Or according to their logic.

KATYAL: Right. Well, so, you know, I think you have problems on both sides, which … you have Constitutional methodology that is espoused and then you have substantive commitments on policy issues. And that some Justices have.

HEFFNER: That are sometimes unbending.

KATYAL: And, and, you know … yes … and sometimes … on both sides, I don’t’ think it’s just a Conservative problem, I think it, it’s both sides.

I mean for many years it was Conservatives who preached judician restraint. The idea that … as you put it in your opening … the unelected judiciary should leave room for the political branches to operate.

So whenevefr the Supreme Court strikes something down as unconstitutional, they’re really removing it from the public discourse … “you can’t do it” …. So, Rowe versus Wade, if 99.99% of people in Texas wanted that abortion law, still five Justices could strike it down … just five versus millions. Okay, so that’s the kind of problem, the worry that people have when they talk about judicial activism, that’s what they’re saying is … you know, five Justices shouldn’t be able to decide, you know, what goes in a state or indeed, the entire United States. And that is a very powerful and has been historically a very powerful conservative idea.

I went to law school from 1992 to 1995 and The Federalist Society which is a group of conservative scholars and students was dominant in pushing this idea of judicial restraint. That we live in a democracy, five people, no matter how smart they are shouldn’t be able to take this off the table.

And it really deeply influenced me and a lot of other people as well at the time.

And then, well they got some more Republican Justices on the Court and you saw the Court being much more comfortable being … striking down action. They struck down the Violence Against Women Act, they struck down the Brady Bill … Brady Act on handguns. You know, as so many different things and, you know, that left a lot of us scratching our heads and saying “Wait a minute, what happened to judicial restraint? What happened to that idea?” That’s what you taught and it was a very powerful good idea and now you’ve all turned it around and are doing the reverse.

HEFFNER: I mean in a sense the political agenda trumped whatever the jurisprudential output had been.

KATYAL: Yeah, I mean I don’t want to characterize …. You know anyone of these cases might have come out, may, may have been right or wrong, I don’t, you know … I don’t’ know about that, but I do know that, that they … that there has been a role reversal in the way in which people Conservatives and Liberals are talking about the role of the judiciary. For a long time it was liberals who wanted judicial activism and Conservatives wanted judicial restraint.

That was the so-called Warren court era. Brown versus Board of Education, Roe versus Wade. All that kind of stuff. And now, the tables are turned and it’s the Conservatives who are comfortable with judicial activism and it’s the Liberals who are saying “Oh, no, no, no, no …unelected Supreme Court and so take, for example, “Citizens United”. You know the very controversial 2010 Supreme Court decision that struck down various campaign finance restrictions. It was the Conservatives saying “Yeah, this law was passed by bi-partisan Congress, you know, it was called McCain-Feingold and yet they said it’s unconstitutional, can’t do it.

And it’s the Democrats who are saying “Absolutely not, this is something that Congress passed and we should let the political branches decide this. It shouldn’t be up to the courts to strike down the will of the majority.”

HEFFNER: I think you would agree that Justice Ginzberg when she on more than one occasion has read passionately her dissent from the court. It sends a signal to the American public who can’t be inside the oral arguments, although more readily than ever they’re accessible in audio files.

It, it sends the signal that her interpretation could not ever possibly resonate with some of her counterparts with whom she may have some affable friendship, relationship, but in a case like Hobby Lobby, for instance, was she really trying to send the message beyond the judiciary that she can’t, in terms of when they go into conference, she can’t make the argument to a Justice Scalia.

KATYAL: You know, I can’t get into her head, but it’s a fair question. And, I mean Justice Ginsberg over the last few terms has really spread her wings and written some of her most powerful opinions on … Hobby Lobby is one … that’s about the Obama contraceptive mandate. Another one, last year, was the Voting Rights Act, in which the Supreme Court struck down this kind of cardinal provision of the voting rights act which had been around since 1965 … really important provision and boy, that dissent, it may have been her best opinion.

And in terms before … Lilli Ledbetter … this was a discrimination case about women and pay in the workplace … she wrote a dissent, Congress picked up that dissent and passed the Lilli Ledbetter Act to overrule what the Supreme Court had done … I think it might have been President Obama’s first act in office or close to it, was signing that law.

So she has really become a master at dissent. And Justice Scalia as well, in different ways. But some of her dissents have captured the public consciousness, you’re absolutely right. Whether that’s her intent, I don’t know, but, but they certainly have. Ledbetter’s a really prefect example of that, in which she’s writing an opinion that says, “Congress, you better fix this”. And they do. They say, “You know this kind of pay discrimination makes no sense in the workplace in today’s day and era.”

And actually, you know, that’s a very healthy thing for a democracy to have a conversation between the Justices on the Supreme Court and the Congress of the United States.

Not done in backrooms in DC and so on, but actually done openly through written opinions.

HEFFNER: I wanted to ask you as someone who has advocated successfully and argued in front of the Supreme Court, given what I alluded to before that the audio recordings are more publicly available than ever before. Is there an argument that the public consciousness should seep in as a result of video recording? How do you feel about that?

KATYAL: It’s a really hard question, cameras in the US Supreme Court and ultimately, you know, I think, we have to defer to the nine people on the Court because they’re the ones who have to live and breath it and they know more than any of us, really what the impact on cameras could be.

For a long time I was really worried about it because I’ve seen televised trials … O.J. and things like that. And you know the one thing about the Supreme Court, you go in and you make your argument … it’s a Temple of Truth. All nine of them working super hard, they’re crazily well prepared. I mean they have every question down, they know every footnote and every opinion and they’re asking you about one word in your brief and what it means and, you know, and it’s really, it’s the hardest thing a lawyer can do I think, to argue before them.

Now we’ve got nine really brilliant, capable people who are there. So, it’s a wonderful conversation, it’s a scary conversation (laugh) as an advocate. But it’s a wonderful one. And I am worried, I’ve always been worried about any disruption to that … cameras or something else … that might induce people to, like, play for the cameras, or be too funny, or not say something because you know it’s going to come off as controversial even though you know it’s the right answer to a Justice’s question. So, you have all those problems on one side. On the other, and it’s a little bit what I was saying about the Roberts court, pointing a signal about not being a partisan ranker and so on … “Boy I wish the American public could see what I see. I mean, you know, going in there a couple times a week, and, and watching the high level of discourse and respect for people who think differently. The Supreme Court only has, I think, something like 300 seats for the public.

You’ve got to wait in line and it’s a real shame because it’s one of … maybe it’s the most inspiring thing I’ve seen in government, is sitting there and watching them case after case, some of them are really exciting … abortion or something like that … some are really, really dry and technical, you know, Section 142A of the Bankruptcy Act. They give every case serious attention. They give every case … they give every one of their colleagues the respect and the discourse, and it’s great, and so, you know ultimately, I, I think cameras … you know, my personal view is that I think cameras should come in for that reason. I’ve just recently come to that view. But, hmmm, I see the costs, too.

HEFFNER: What are the mechanisms through which they can really breakthrough the ideological grid lock that we talked about?

KATYAL: Yeah. So I think there’s a couple of things. I mean one is the Supreme Court really does have a tradition that … and I don’t know how far back it goes, but it goes pretty far back in which when they walk into their conference, when they decide to vote on how they’re going to vote … every Justice shakes each other’s hand first. That’s the first thing … that’s a lot of handshakes … nine factorial, whatever it is.

And then they sit and they speak and each of them speaks once before anyone can speak twice. And it’s highly structured. And I think that kind of structure yields I think a more powerful ability to listen and hear each other and engage with one another. So that’s one thing.

And another is … who are we putting on the Supreme Court? Well, you know, we’ve put on, for example, John Roberts and Elena Kagan … two people who I think were extremely well known for their ability to reach across and to really engage the other side. And sure they both have very strong substantive views on certain things. But, boy, they really listen and argue with and respect the other side. And I think if we put people on like that, we’re going to get a little bit more of that consensus. Again, you’re not going to see it in every case, it’s not going to be in school prayer and abortion and the like. But it’s going to be in more of the cases than it has been in the last 20, 30 years.

HEFFNER: Because you can’t ever totally remove the political dimension is what you’re saying.

KATYAL: Yeah.

HEFFNER: But you can move toward a universe in which decisions will have greater consensus …

KATYAL: Absolutely, and you know and to be fair to the court, I don’t think they ever think that they’re voting on political lines. I think they do think their substantive view of the Constitution is one way or another and, and it does happen to track the views of the President who nominated them as a policy matter. But that’s also just the President usually knowing that ahead of time and saying “Oh, if I send this person up … if I send Justice Ginsberg up, we know that she’s going to vote, ultimately to uphold some version of Roe versus Wade. You know, that’s not a surprise. Nobody should be surprised by that.

HEFFNER: And in that respect … given the Constitution and I want to ask you about that, too, you can’t really prevent the inseparabilitiy of the political institution, which nominates a Justice and how that person may fair on the court … I mean that’s just the Constitution.

KATYAL: Absolutely, that is the Constitution. At the same time, of course, Justices do famously vote against Presidents who nominated them. We’ve had this very recently with the Obama healthcare law, in which Justices Breyer and Kagan voted to strike down a huge part of the Obama healthcare law as unconstitutional … and so it was a seven to two decision. And so, you know, Justice Kagan, just appointed by, by President Obama a few months earlier and votes to strike it down.

HEFFNER: Mmmmph. Is the Constitution still a work in progress?

KATYAL: Sure, I mean, you know, I think our Founders … and, and I really do think every American should read the Constitution … I think it is the most incisive document, certainly that I’ve ever read in terms of really thinking through some things. One of the things they thought out was, “Look, you know, we’re not the smartest people for all time. We might make mistakes, so let’s put something in the Constitution itself, in the form of Article Five to allow for it to be amended.”

And they set out different paths to doing that. And, of course, it hasn’t been kicked in a lot, but it has been kicked in sometimes in the Amendment process and 27 times … and that’s a really, I think, was wise on their part. It obviously leads to an evolution, so the Constitution itself, what was enacted, didn’t have a free speech clause or freedom of religion or freedom of press or the Second Amendment on guns or the Eighth Amendment on cruel and unusual punishment … that all happened four years later with the Bill of Rights.

And, of course, it didn’t have any, any equal protection guarantee. That happened after the Civil War in 1868. And any number of other changes that have happened over the years, you know 16th Amendment income tax … people don’t like that one.

Ahemm, but … so there’s always going to be some work in progress along the Amendment lines.

And then there’s another piece which is not really the Constitution being a work in progress, but the meaning of the Constitution as applied to different circumstances. The smart phone/cell phone case is a perfect example of that.

The Fourth Amendment’s meaning didn’t change. But technology changed. And we had to adapt to those old principles and translate them into a new era.

HEFFNER: Are there amendments, Neal, that you think would positively alter the intersection or interface between the judiciary and other political bodies and, and the public at large?

KATYAL: Well, I don’t think I, I’d focus on amendments as much … the … but I would say that there is a robust dialogue and lots of Constitutional discourse between the court and the Congress. And one thing that Supreme Court nomination hearings can do, for example, is start to get at that dialogue and to say, you know, quiz the nominee on whether or not they thought a particular decision was right or wrong and why. And, you know, unfortunately, Supreme Court confirmation hearings have become a little bit sound byte-y and you know, there is an opportunity there to do a little bit more and to get under the surface.

HEFFNER: I mean they seem, at the time so explanatory and so informative and if you just remove the political rancor then you, you would have just the highlight of what our democracy aspires to be. Right?

KATYAL: Yeah. No, I mean … I remember, you know, several hearings when Senator Arlen Specter, the Republican from Pennsylvania, was running them, and they were like high seminars in Constitutional law. They were fantastic. And, and so, you know, there’s a definite opportunity there and other places, as well, to try and get some of that cross branch dialogue that you’re speaking of.

HEFFNER: The issue of same sex marriage is one that is hitting the court now more than ever. Do you see a path for compromise or consensus in how the court may ultimately, definitely judge gay marriage.

KATYAL: So I’m representing the challengers to the Utah law that restricts marriage to only opposite sex couples. So, I have some views on this, but your viewers should know that, you know, I’m, I’m a lawyer in one of the cases.

Ahem, I think that the issue of same sex marriage is maybe the defining civil rights issue of our time. You know, and it’s, it’s heartbreaking when you hear story after story of person who gets married, they maybe even have children in one state which allows same sex marriage and they can’t move jobs to another state, they may not even be able to travel to that state on vacation because they might not have all of the different sets of rights about partner care, children’s care and so on. It’s a really horriblelimbo setting that people find themselves in right now.

And I think, you know, this is a very good example of where it’s not partisan. Who’s the person on the Supreme Court who has, you know, so eloquently stood for the rights of gay and lesbian Americans since, since … for, for a long time, since 1996 … since, you know, at a time when a lot of other people, including President Clinton were signing things like the Defense of Marriage Act, a guy named Anthony Kennedy, nominated to the Supreme Court by President Reagan, but has spoken so powerfully and movingly … he’s changed the conversation about how we think about this issue. I don’t think even 15 years ago, anyone would have thought we’d be in a situation where so many states have recognized gay marriage and yet, that’s where we are.

HEFFNER: Neal Katyal … thank you so much for being here on The Open Mind.

KATYAL: Thank you.

HEFFNER: And thanks to you in the audience. I hope you join us again next time…for a thoughtful excursion into the world of ideas. Until then, keep an open mind.

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