Convention Day 3: Covering the Supreme Court

The second session I attended this afternoon was the luncheon with Dahlia Lithwick of Slate Magazine, Linda Greenhouse of the NY Times, and Joan Greenberg, Senior Legal Correspondant for ABC news. Their discussion centered mostly on the recent changes in the court, and focused less on the legal issues surrounding recent decicions, and more on the politics and personalities of the present day court. The first issue they tackled is the change in the court with the retirmeent of O'Connor; all agreed that Roberts and Scalito will try to move the court in the directin of judicial "minimalism", of involving the court in less cases, and construing the ruling on as narrow grounds as possible to limit the effect of the holding. Dahlia pointed out that judicial minimalism is hostile to the very notion of judicial review; that courts abrogate their authority to make substantive decisions when they seek deliberately to avoid making broad (and useful) holdings. Greenhouse followed on that remark by pointing out that this court would almost certainly adopt "aggressive" minimalism. She also made the insightful comment that the desire of C.J. Roberts to strive for unanimity in the rulings is really an attempt to restrain the court, as holdings must be made as narrowly as possible for there to be anything approaching unanimity on the bench. Greenburg also made the intersting point that this court, thus far, appears not have to adopted Scalia's effort to de-legitimize the use of legislative history in construing statutory language. Greenhouse was of the opinion that Roberts/Alito will have some luck securing the agreement of Kennedy in close cases (Kennedy being thought of as the new "swing" justice, replacing O'Connor in that role.) Greenhouse also made a very interesting point, that she thought that Rehnquist had taken the approach of increased states' rights to it's natural limit, and that Roberts and Alito were unlikely to push that approach beyond what Rehnquist already achieved (an argument I find interesting and somewhat surprising, and one I await to see if she is correct about.)

Unfortunately since the panel took place during lunch, many of the audience were busy enjoying their meal and audience participation was nil; as a resul there weren't really any intriguing questions for the panelists to discuss. But it was informative nonetheless, and it will be interesting to see if their predictions regarding the new Roberts court will come true.