After Justice Scalia's death, I mourned not only his passing, but the fact that we would no longer have any new Scalia writings. To this day, no one on the Court can hold a candle to Scalia's writing. Thankfully, the release of Justice Stevens's papers has given us new insights into Scalia's prime-time on the Court. CNN shared a four-page memo that Scalia wrote to the conference concerning Clinton v. Jones. This important case held that President Clinton was not immune from civil litigation for acts that arose before he became president. Justice Stevens wrote the majority opinion for a unanimous Court.
Clinton v. Jones was argued on January 13, 1997. The memorandum was circulated on April 4, 1997. If I had to guess, Justice Stevens's draft majority opinion was circulated at some point in March. CNN did not share the draft opinion, though the structure seems to have changed. Scalia suggests that the opinion concluded with Part VI. But the published opinion has eight parts. It is possible to compare Scalia's suggested edits, with the final version, to see whether Stevens adopted those revisions. Here are nine highlights.
First, Scalia objected to the final paragraph of the introductory paragraph:
The introductory paragraph ends: "Despite the force of the arguments supporting the President's submissions, we conclude that they must be rejected." I happen to think there is not much force to those arguments, but that is just a secondary objection. The principal objection is this: We do not normally announce the relative strength of the arguments our opinions reject, and here there is special reason not to do so. Youngstown and United States v. Nixon were equivalently political cases. In neither of them does our opinion contain any aside about how reasonable the President's position was. We should do the same here.
Stevens ignored that revision. His introductory paragraph concluded with that same line:
Despite the force of the arguments supporting the President's submissions, we conclude that they must be rejected.
Second, Scalia objected to the first paragraph of Part V:
The other point at which I get the uneasy feeling we are flakking for the White House is in the first paragraph of Part V, which begins with the assertion that the President has "advanced a powerful argument" supporting his immunity, and then goes on to explain, quite gratuitously, that the President is not claiming royal prerogatives, or asserting that he "is in any sense 'above the law."' Royal prerogatives vel non is a point of law, I suppose, but whether the assertion of any form of presidential immunity amounts to a contention that the President is "above the law" is preeminently a matter of opinion, and we can let the editorial writers argue about it. I think we perform an inappropriately political function in taking a position on the point. I suggest saying, in the last sentence of the first paragraph, simply "We conclude that the President's arguments must be rejected." In Part V, I propose dropping the word "powerful" in the first sentence, and deleting the remainder of the paragraph, except the last sentence, which I would introduce somewhat differently: "He contends that his claim is supported by the character of the office that was created by Article II of the Constitution, and by separation of powers principles, etc."
The first paragraph of Part VI uses slightly-toned down language, but makes the same point about "above the law." Stevens changed "powerful argument" to "strongest argument."
Petitioner's strongest argument supporting his immunity claim is based on the text and structure of the Constitution. He does not contend that the occupant of the Office of the President is "above the law," in the sense that his conduct is entirely immune from judicial scrutiny
Other than changing "powerful" to "strongest," Stevens seemed to disregard the proposed revisions.
I am very confused by CNN's commentary here. Devon Cole wrote:
Scalia urged Stevens to cut from early drafts references to "the force of the arguments" made by Clinton's attorneys, as well as a part where the liberal justice writes that the then-president "advanced a powerful argument supporting this immunity claim that is based on the text and structure of the Constitution." The latter sentiment, Scalia wrote, gave him "the uneasy feeling we are flakking for the White House." Before Stevens could respond in full to Scalia's concerns, at least one other member of the court spoke up in support of the suggestions: Justice Anthony Kennedy. "I think Nino's reading of the opinion is valuable and insightful. I endorse all his comments and hope you can accept them," Kennedy said in a note to Stevens. Stevens did eventually accept the changes, and he conceded to Scalia in a response memo that he might have taken some liberties in his early drafts.
The phrase about "force of the arguments" remains in the opinion. And "powerful" was changed to "strongest." It is misleading to say Stevens accepted those changes. Joan Biskupic also seems to have misread the import of Justice O'Connor's memo in Bush v. Gore. O'Connor basically wrote what would become the Rehnquist concurrence, but later O'Connor ultimately joined Kennedy's more moderate opinion based on the Equal Protection Clause. Derek Mueller makes this point persuasively. I know there is a rush to publish quickly, but these articles were not done well. The Stevens papers are not going anywhere. They can be mined over time.
Back to Clinton. Third, Justice Scalia objected to a footnote that cited an academic amicus brief. His criticism is sharp.
On page 4, I strongly dissent from footnote 4, the encomium to the litigating professoriate. I did not find that their briefs added much substance to what was already in the scholarly literature, and I frankly doubt that was the purpose. Sign-on, multiple-professor amicus briefs in a case such as this are in my view a political rather than an academic exercise; partisanship, and yes, even hopes for preferment, play a part. I did not sign on to such briefs myself in the days when I was a tenured academic, and I object to our applauding them here.
Bravo. The criticism of scholarly amicus briefs has gained traction in the past decade. I'm glad Scalia was ahead of the curve way back in 1997.
Justice Stevens did, in fact, delete the "encomium to the litigating professoriate." This lovely turn of phrase reminds me of a barb Scalia unloaded on Alan Gura during argument in McDonald v. Chicago, concerning the Privileges or Immunities Clause
Antonin Scalia: And if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when—when you can reach your result under substantive due—I mean, you know, unless you're bucking for a—a place on some law school faculty–
[Laughter]
Alan Gura: –No. I have left law school some time ago, and this is not an attempt to—to return.
Antonin Scalia: Well, I mean, what you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence.
Scalia's wit came through, whether in a prepared memo or an ad-libbed comment from the bench.
And for those curious, the law professor amicus brief he mentioned was prepared by Professors Pam Karlan and John Jeffries, both at UVA at the time. The brief was signed by 16 professors, including Akhil Amar, Richard Fallon, Dan Farber, Phil Frickey, Sandy Levinson, Judith Resnick, Kathleen Sullivan, and Laurence Tribe. Speaking of Tribe…
Fourth, Justice Scalia objected to a footnote that cited Professor Tribe's treatise.
For a different reason, I object (less strenuously) to the academic citation (with quotation) in footnote 12 on page 9. Does the Supreme Court of the United States have to rely upon Prof. Tribe for such an obvious proposition, set forth so clearly in its cases? Are we promoting his book?
Scalia's less vigorous dissent didn't work here, as Footnote 12 did in fact cite Tribe for a very "obvious proposition."
Because the Supremacy Clause makes federal law "the supreme Law of the Land," Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are "faithfully executed," Art. II, § 3, may implicate concerns that are quite different from the interbranch separation-of-powers questions addressed here. Cf., e.g., Hancock v. Train, 426 U.S. 167, 178–179, 96 S.Ct. 2006, 2012–2013, 48 L.Ed.2d 555 (1976); Mayo v. United States, 319 U.S. 441, 445, 63 S.Ct. 1137, 1139–1140, 87 L.Ed. 1504 (1943). See L. Tribe, American Constitutional Law 513 (2d ed.1988) ("[A]bsent explicit congressional consent no state may command federal officials … to take action in derogation of their … federal responsibilities").
Fifth, Scalia objected that the opinion left open the question whether a state court could compel the President's attendance at a hearing:
I am glad that the opinion makes clear (at page 9) that we are not addressing the question whether a court may compel the attendance of the President at any specific time or place. I agree with Sandra that a court could not take that step. I am concerned, however, that the way in which Part V of the opinion frames the President's argument, and our response to it, suggests an answer to the left-open question. The President's argument is introduced as follows (page 13): "[P]etitioner contends that he occupies a unique office with powers and responsibilities so vast and important that the public interest demands he be constantly available to discharge his duties and to deal with unanticipated emergencies that may arise at any moment." (Emphasis added.) . . . . (a) In the second paragraph on page 13 (which introduces the President's argument), replace "he be constantly available to discharge his duties and to deal with unanticipated emergencies that may arise at any moment" with "he devote his undivided time and attention to the duties of his office."
Stevens made the exact revision Scalia proposed:
As a starting premise, petitioner contends that he occupies a unique office with powers and responsibilities so vast and important that the public interest demands that he devote his undivided time and attention to his public duties.
Scalia urged Stevens to make several revisions concerning the burden on the President:
(b) In the third line from the bottom on page 17, replace "impose an unacceptable burden on the President" with "impose an unacceptable burden on the President's time and energy."
(c) In lines 2-3 on page 19, replace "impose significant burdens on the Executive Branch" with "significantly burden the time and attention of the Chief Executive."
(d) In the third sentence of the second paragraph on page 21, replace "the burden on the Office of the Present that is a mere by-product" with "the burden on the President's time and energy that is a mere by-product."
Stevens adopted those change:
(b) As a factual matter, petitioner contends that this particular case—as well as the potential additional litigation that an affirmance of the Court of Appeals judgment might spawn—may impose an unacceptable burden on the President's time and energy, and thereby impair the effective performance of his office.
(c) The fact that a federal court's exercise of its traditional Article III jurisdiction may significantly burden the time and attention of the Chief Executive is not sufficient to establish a violation of the Constitution.
(d) The burden on the President's time and energy that is a mere byproduct of such review surely cannot be considered as onerous as the direct burden imposed by judicial review and the occasional invalidation of his official actions.
Sixth, Justice Scalia offered what he called a cri de coeur. Justice Stevens offered examples of how the separation of powers restricts the Congress and the President, but had only a single example of similar restrictions on the Court!
This next comment is perhaps more of a cri de coeur than something you can remedy: On page 16, after describing a few of the really significant respects in which this Court has imposed separation-of-powers restrictions upon Congress (Plaut, Metropolitan Washington Airports Authority) and upon the Executive (Youngstown), the only thing we can come up with for a separation-of-powers restriction upon ourselves is that we cannot issue advisory opinions. Seems pretty trivial, at least to the unsophisticated; and not something we would be likely to lust after. It would have been nice to come up with a more self-denying example-and perhaps one later than the administration of George Washington. A few years ago we had an opportunity to say that we cannot impose taxes, but even that proved too much for us. See Missouri v. Jenkins, 495 U. S. 33 (1990). The comparison with the constraints we have placed on the other branches makes us look pretty bad. Can you think of any things we would like to do that we have said we can't do?
Surely there must be something more than the prohibition on advisory opinions, right? Not much. Justice Stevens came up with one other relatively minor example:
And, the judicial power to decide cases and controversies does not include the provision of purely advisory opinions to the Executive,33 or permit the federal courts to resolve non justiciable questions.34
Footnote 34 cites Luther v. Borden, Nixon v. United States, and Baker v. Carr. Not much of a self-imposed constraint. CNN reports on a memo Stevens wrote to Scalia:
"Many thanks for your thoughtful and constructive letter. I am particularly grateful for your cri de coeur, for which I have a response," he wrote in part.
Seventh, Scalia offered revisions to the paragraph discussing Youngstown. Specifically, Scalia made clear that the President rarely takes action by himself. Rather, the President directs his subordinates to enforce the law. Indeed, the passive voice of the Take Care Clause recognizes this principle. The President does not personally execute the law. Rather, he "shall take care that the law be faithfully executed" by others. My colleague Seth Barrett Tillman has made this point before.
On page 19, it seems to me that the paragraph dealing with Youngstown should make it clear that our power to keep the President's official actions within the law has thus far been exercised only when the President acts through subordinates. Two changes would suffice: (a) augment the first sentence, as follows: "First, we have long held that when the President takes official action through subordinates (which is of course how he almost always conducts the nation's business), the Court has the authority, etc."; and (b) change the fifth line from the end of the paragraph to read: "decide whether the conduct that the President directed the Secretary of Commerce to engage in conformed to the law."
[c] Conforming changes should be made in the last paragraph on page 21: In the second sentence, "by reviewing the legality of the President's official conduct" should be changed to something like "by reviewing the legality of official action taken at the President's direction"; [d] and in the third sentence, "invalidation of his official actions" should be changed to something like "invalidation of official action taken at his direction."
Stevens did not make either change:
(a) First, we have long held that when the President takes official action, the Court has the authority to determine whether he has acted within the law.
(b) Despite the serious impact of that decision on the ability of the Executive Branch to accomplish its assigned mission, and the substantial time that the President must necessarily have devoted to the matter as a result of judicial involvement, we exercised our Article III jurisdiction to decide whether his official conduct conformed to the law.
(c) If the Judiciary may severely burden the Executive Branch by reviewing the legality of the President's official conduct, and if it may direct appropriate process to the President himself, it must follow that the federal courts have power to determine the legality of his unofficial conduct.
(d) The burden on the President's time and energy that is a mere byproduct of such review surely cannot be considered as onerous as the direct burden imposed by judicial review and the occasional invalidation of his official action.
Eighth, Scalia objected to placing the "historical record" in a footnote.
On page 22, putting all the "evidence from the historical record" into a footnote is not particularly flattering to the theory of constitutional interpretation that places primary reliance on such materials. I agree that the historical record is inconclusive, but putting it all in a footnote suggests that even if it were clear it would be only marginally relevant. In fact, however, if the historical record were clear, I would much more be guided by it than by the separation-of-powers discussion in the text. It seems to me you could easily put most or all of this in the text of the opinion, at the very end of Part V. It would even look better.
Here, Stevens followed Scalia, and placed the historical material in the body of the paragraph.
Ninth, Scalia urged Stevens to drop the penultimate paragraph of the opinion:
On page 27, I urge you to drop the penultimate paragraph of the opinion. If that paragraph said simply "Congress can provide greater protection for the President," it would be merely superfluous (there is no real-world possibility of such legislation). In fact, however, all the paragraph says is that Congress may pass "appropriate legislation" to give the President "stronger protection," although of course (footnote 38) any legislation giving the President stronger protection might be inappropriate, i.e., unconstitutional-we're not saying. This seems like pettifogging, and it would be better to say nothing. Surely it is self-evident that denying the existence of a constitutional right says nothing (either way) about Congress's ability to create a statutory right.
Stevens left that paragraph in the opinion:
If Congress deems it appropriate to afford the President stronger protection, it may respond with appropriate legislation. As petitioner notes in his brief, Congress has enacted more than one statute providing for the deferral of civil litigation to accommodate important public interests. Brief for Petitioner 34–36. See, e.g., 11 U.S.C. § 362 (litigation against debtor stayed upon filing of bankruptcy petition); Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.App. §§ 501–525 (provisions governing, inter alia, tolling or stay of civil claims by or against military personnel during course of active duty). If the Constitution embodied the rule that the President advocates, Congress, of course, could not repeal it. But our holding today raises no barrier to a statutory response to these concerns.
It is fascinating to see how carefully Justice Stevens, who had a clear majority, followed Justice Scalia's comments.
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