THE SUPREME COURT 2007 TERM FOREWORD: DEMOSPRUDENCE THROUGH DISSENT Lani Guinier TABLE OF CONTENTS PROLOGUE..........................................................................................................................................7 I. DISSENT AND THE AUDIENCE QUESTION IN HISTORICAL AND CONTEMPORARY CONTEXT...............................................................................................18 A. Norms of Dissent and the Audience Question ................................................................18 B. Why Focus on Oral Dissents? Democratic Accountability ..........................................23 C. Oral Dissents and Questions of Biography......................................................................32 II. DEMOSPRUDENCE THROUGH DISSENT ..........................................................................47 A. What Is a Demosprudential Dissent?...............................................................................47 B. The Demosprudential Continuum from Oral Dissents to Written Opinions ..............52 C. The Relationship Between Demosprudence and Popular Constitutionalism .............56 III. DEMOSPRUDENCE THROUGH DISSENT IN THE OCTOBER 2007 TERM..................59 A. Justices Stevens and Scalia’s Opinions in the October 2007 Term: A Demosprudential Perspective ........................................................................................64 1. Baze v. Rees, 128 S. Ct. 1520 (2008) (Stevens, J., concurring).................................64 2. District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (Stevens, J., dissenting) (oral dissent) ...................................................................................................................70 3. Boumediene v. Bush, 128 S. Ct. 2229 (2008) (Scalia, J., dissenting) (oral dissent) ...................................................................................................................77 4. Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184 (2008) (Scalia, J., dissenting) ...............................................................................80 B. The Best (Missed) Opportunity for Demosprudential Dissent: Crawford v. Marion County Election Board ........................................................................................85 1. How a Dissent’s Content Can Motivate Ordinary People ......................................95 2. Models for Organizing: Possibilities Post-Crawford ...............................................102 (a) The Rhode Island Reenfranchisement Campaign.............................................103 (b) The Post-Crawford Campaign Against Voter IDs in Missouri........................105 4 2008] THE SUPREME COURT — FOREWORD 5 IV. IMPLICATIONS OF DEMOSPRUDENCE THROUGH DISSENT .....................................115 A. Democracy-Enhancing Potential of Deliberative Accountability...............................115 1. Constitutional Authority ............................................................................................115 2. Popular Will .................................................................................................................116 3. Public Education About Minority Views .................................................................119 4. Democratic Accountability and the Law/Politics Divide ......................................120 B. Challenges ..........................................................................................................................122 1. Axis of Homogeneity ...................................................................................................122 2. Goal of Unanimity.......................................................................................................124 3. Problem of Dead-Hand Control.................................................................................125 C. Critiques.............................................................................................................................128 V. C ONCLUSION.........................................................................................................................131 THE SUPREME COURT 2007 TERM FOREWORD: DEMOSPRUDENCE THROUGH DISSENT Lani Guinier∗ Question: I have a question about audience in dissenting — as dis- tinct from majority — opinions. Your audience could be as narrow as the litigants and future benches or as broad as Congress or “the peo- ple.” Can you give examples of dissenting opinions in which you have attempted to speak to the people, and techniques you employed to reach them? Another way to phrase the question is, “Should Supreme Court Justices speak to the people? If so, how?” Response: After just a few years on the Court, I was in California visiting with two of my children. We met at a restaurant for breakfast, where someone came to our table and said, “Are you Justice Ken- nedy?” I thought, “Oh boy, he’s probably some C-SPAN insomniac since he recognizes me.” He explained he was a solo practitioner in a small town in northern California. When the press reported the flag- burning decision, Texas v. Johnson, the gentleman’s father burst into his office, which was crowded with people, and said, “You should be ashamed to be a lawyer.” There was a reason for the outrage: His father had been a prisoner of war in Germany. To keep up their spirits, the prisoners would knit U.S. flags from stray bits of cloth. When the flags were confiscated and ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Bennett Boskey Professor of Law, Harvard Law School. This article is part of a larger book project coauthored with Professor Gerald Torres, CHANGING THE WIND: THE DEMOS- PRUDENCE OF LAW AND SOCIAL MOVEMENTS (forthcoming Oxford Press, 2010). Professor Torres and I have jointly developed the concepts, and their applications, that are the backbone of this Foreword. Betsy Bartholet, Derrick Bell, Marie-Claire Belleau, Ann Blair, Tomiko Brown- Nagin, Susan Carle, Guy-Uriel Charles, Mary Clark, Robert Clark, Andrew Crespo, Chris Desan, Jill Duffy, Heather Gerken, Vicki Jackson, Rebecca Johnson, Pam Karlan, Elizabeth Lambert, Jane Mansbridge, Martha Minow, Janet Moran, Charles Ogletree, John Payton, Robert Post, Leah Price, Harriet Ritvo, Reva Siegel, Samuel Spital, Susan Sturm, Jeannie Suk, and Mark Tushnet have given me invaluable feedback on this project and have generously shared their in- sights. I thank the faculty who participated in the September 19, 2008 workshop at American University Washington College of Law and those who attended the July 10, 2008 Harvard Law School Summer Workshop. I benefited from the superb research and editorial assistance of Emily Blumberg, Richard Chen, Gina Clayton, Zoila Hinson, Sophia Lai, Jennifer Lane, Kimberly Liu, Patrick Morales-Doyle, Joanna Nairn, Portia Pedro, and Sandra Pullman. I also appreciate the generous cooperation of the chambers of Justices Stevens, Scalia, and Kennedy in providing tran- scripts of their spoken words. 6 2008] THE SUPREME COURT — FOREWORD 7 the prisoners punished, the prisoners would begin to knit again. Not knowing how else to respond to his father’s anger, the attorney gave him a copy of my concurring opinion. The father returned to the office the next day and said, “You should be proud to be a lawyer.” The Constitution is the enduring and common link that we have as Americans and it is something that we must teach to and transmit to the next generation. Judges are teachers. By our opinions, we teach. — Justice Anthony M. Kennedy, responding to a Harvard Law School student’s question, Spring 2008 PROLOGUE t is morning, June 28, 2007, in the august amphitheater of the I United States Supreme Court. Three prominent black civil rights lawyers wait expectantly.1 They, along with members of the press and public, are here to bear witness to the Court’s decision in Parents In- volved in Community Schools v. Seattle School District No. 1.2 The case involved two cities separated by thousands of miles: Seattle, Washington, and Louisville, Kentucky. Local communities in these far-flung locales had voluntarily attempted to integrate their public schools.3 On this, the last day of his first full Term, Chief Justice John Rob- erts gavels the room to order. He then strikes down the plans in a matter of sentences. On behalf of himself and four colleagues, he de- clares Seattle’s and Louisville’s voluntary school integration plans unlawful because they consider race as a factor in student assignment. With a simple maxim, Chief Justice Roberts and his colleagues destroy what had taken the cities years to build: “The way to stop discrimina- tion on the basis of race,” their argument goes, “is to stop discriminat- ing on the basis of race.”4 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 See Telephone Interview with Charles Ogletree, Jesse Climenko Professor of Law, Harvard Law School (June 17, 2008). Professor Ogletree was seated next to Ted Shaw and John Payton, then current and future director-counsels of the NAACP Legal Defense Fund, Inc. 2 127 S. Ct. 2738 (2007). 3 Id. at 2746. 4 Id. at 2768 (plurality opinion). In his opinion announcement, Chief Justice Roberts said, “the way ‘to achieve a system of determining admission to the public schools on a nonracial basis’ is to stop assigning students on a racial basis.” Oral Opinion of Chief Justice Roberts at 12:53– 13:04, Parents Involved, 127 S. Ct. 2738 (No. 05-908) (quoting Brown v. Bd. of Educ., 349 U.S. 294, 300–01 (1954)),