It's that time of year again. One First Street is shuttered for the season, and you bid temporary adieu to your favorite Justices and advocates until next October (or you simply turn to the comprehensive catalog of reruns that you, like other true Supreme Court junkies, rely on in those summer months). You lament that improvident Docket Bracket wager, and curse the eternal optimism that led you to believe that just maybe the party you were rooting for would carry the day after all. And then you inevitably catalog your favorite moments of the bygone year, that witty line in that slip opinion or that hard question during oral argument that changed everything. It's a special moment made to peer forward impatiently, but it's also a moment to look back on an exhilarating year - and it is in that spirit that I venture my reflections on the October Term of 2015.
Of course, the most unforeseeable and drastic event of the year was the passing of Justice Scalia this February. There is simply no way to adequately sum up all the different ways he changed the Court. I would begin by stating that even though he is gone, his Constitution lives on - but that seems like a highly inappropriate way to pay one's respects to a thoroughgoing originalist.
(Speaking of which, the "Constitution: Dead or Alive" debate shows no signs of going anywhere, but I still don't understand all the fuss. People who insist that it's alive and kicking use that premise to justify all manner of overreach into decidedly local business, from Goldberg v. Kelly to District of Columbia v. Heller; those who assert that it's dead as a doorknob use that to ignore its plainest wording, from Greece v. Galloway to Gregg v. Georgia. I prefer to think of it as unchanging (so dead) but enduring (so alive), and I honestly don't see the problem with that contradiction. It worked out just fine for Schrodinger's cat.)
Oh, right - back to our topic, Justice Scalia. Whether you loved him or hated him, you had to admit that his judicial exploits always somehow stuck in your head. There was the time he discussed broccoli with General Verrilli, like it was the most natural thing in the world. The time he said that a man's innocence was no reason not to execute him for a capital crime (and, no, for all of you who have always wondered, Lionel Torres Herrera could not be saved on remand). The time he asked an unsuspecting lawyer, point-blank, whether or not he was reading from notes. The time he grudgingly admitted that cannons weren't protected by the Second Amendment (but wasn't so sure about rocket launchers). And all the countless times we heard him pounding on the bench to accentuate his point - a sound that we'll always associate with one of those hard questions.
But the year held more incredible twists and turns, and the docket had plenty of surprises as well. Probably one of the most highly anticipated appellate blockbusters of the Term was Friedrichs v. California Teachers Ass'n
, the case on the constitutionality of agency-shop labor agreements. The petitioners tried the freedom-of-association angle, complete with a nod to the "money is speech" concept and high-flying rhetoric about "fixed stars in our constitutional constellation." To which the respondents said basically: "Adair you to - double-[yellow]-dog!
" And it worked, at least for all practical purposes.
No summary of the past year would be complete without a rundown of all the other embarrassing splits handed down this Term. There was US v. Texas,
in which the Justices couldn't agree to deport or not to deport. And there was Zubik v. Burwell,
in which they narrowly avoided stalemate by a brief stint as the Supreme Arbitration Panel, suggesting that the parties might be able to work something out (maybe we haven't come so far since Van Staphorst v. Maryland,
225 years and 597 U.S. Reports volumes later).
I am also bound to mention the most preposterous moment of the year, and I believe Nichols v. United States
earned that honor as the case in which the famed electric courtroom air failed to live up to its luminous reputation, and the splendid halls were suddenly cloaked in blackness. Come to think of it, that actually sounds like a good movie - power goes out in a lightning storm, resulting in a Night at the Museum kind of thing where those remarkably lifelike statues of Warren Burger, John Marshall and Clarence Thomas suddenly spring to action and start asking questions.
No, wait. That happened, at least 1/3 of it, in yet another highlight of this unpredictable year. Just when we were thoroughly convinced he was no longer on speaking terms with a solitary member of the SC bar, was afflicted with acute and permanent laryngitis, had secretly become a Cistercian monk, or all of the above, an unfamiliar voice addressed an unsuspecting advocate with a question - a hard one - and it took us all a moment to figure out what had happened. It might be hard for advocates to get used to, knowing that they could get grilled at any moment by any member of the bench - but then again, it doesn't seem like they'll have to get too used to it, so that's an issue for another day.
And, finally, Whole Woman's Health v. Hellerstedt,
the dramatic decision that closed out the term with a ringing reaffirmation of Roe v. Wade.
Kennedy indeed swung left, providing us with a 5-3 majority that suggests the era of this might finally be over:
Or not - I suspect the ghost of Zubik
past will haunt us all next Term. But for now, the Constitution is safe in the hands of the lower courts, leaving us to enjoy our summer (or, as the case may be, speculate about the cert. pool. But that's our problem).