It’s Justice Gildea as Chief Justice and University of Minnesota law professor David Stras to fill Gildea’s seat.
Justice Gildea has developed into an extremely interesting figure on the Court. We’re still struggling to get out our unallotment post (sorry; the vagaries of being forced to make a living) — it is, basically, an examination of Justice Gildea’s minimalist claims in Brayton. Given Justice Gildea’s pre-eminent role in articulating the conservative justices’ positions in the term’s two high-impact cases, Brayton, the unallotment case, and Lessley, the jury trial waiver case, I think it is a fair argument that she has emerged as the leader of the Court’s strict constructionists. Here, according to Judgepedia, is what she told the League of Women Voters in 2008 about her judicial philosophy:
“When I was sworn in as Minnesota’s 87th Associate Justice almost three years ago, I made a commitment to the people of Minnesota that I would, as Alexander Hamilton foretold in the Federalist Papers, exercise my judgment, not impose my will, and that I would do my best to honor the law because, as Daniel Webster said, the law has honored us. Those commitments describe my judicial philosophy.”
The surprise is not that she adheres to such a philosophy but, rather, how implacably she does so. What distinguishes the current iteration of the Court, in my view, is the presence of a trio of justices who hew to a particular judicial philosophy to the exclusion of all other judicial values and purposes, such as a judges’s responsibility at times to make independent interpretative judgments that make the best sense of a given writing, or a judge’s obligation to affix new safeguards to old rights in an ever-shifting society. The Minnesota Supreme Court was not unmindful of the importance of a restrained judiciary before the Pawlenty appointees gained ascendency; notions of judicial constraint are embedded in all the passive judicial canons, i.e., stare decisis, strictures against advisory opinions, limits on justiciability. A court’s legitimacy flows from its restraint. That is an old idea. What is different is that Justice Gildea and her colleagues seem also to believe that it is the only idea.
The little bit that I hear is that the members of the Court maintain cordial relationships with one another, notwithstanding the deepening ideological divisions between them. My impression of Justice Gildea from watching the videos of the oral arguments is that she’s focused and persistent, but not ungracious. Particularly given those deepening divisions, grace may turn out to be the most important quality a Chief Justice could bring to the job.
Justice Gildea’s shift to the high chair is not likely going to affect how she votes. The game-changer, if there is one, is the appointment of David Stras. I know his name from SCOTUSblog, where he is a contributor and the author of the academic round-up. His bio on the University of Minnesota site includes the following:
“Professor David Stras joined the faculty of the University of Minnesota Law School in 2004. He teaches and writes in the areas of federal courts and jurisdiction, constitutional law, criminal law, law and politics, and law and economics. His current research focuses on the federal judiciary and the Supreme Court of the United States. Using a variety of methodological tools, including empirical and historical analyses, Professor Stras’ research has examined a variety of issues relating to the Supreme Court.”
MinnLawyerblog adds this: (1) he is a former clerk for Justice Thomas; (2) he holds an MBA in addition to a JD; and (3) he was only admitted to practice law eleven years ago.
Professor Stras and Justice Thomas were scheduled to teach a seminar on Selected Fundamental Principles of Constitutional Law at the University of Minnesota law school this spring; does anyone know, did that come off? Professor Stras discussed his experience clerking for Justice Thomas in a podcast that can be found here; it appeared as part of SCOTUSblog’s Black History Month offerings. I’ve only had a chance to glance at his publications at this point. Here he argues that the SCOTUS justices should resume their 19th century practice of riding circuit so as to expose them, among other things, to “the difficulties faced by the lower courts in implementing the Supreme Court’s sweeping (and sometimes confounding) rulings.” Here he conducts what looks to be a rather impenetrable statistical analysis that purports to identify the factors that are most likely to lead to plurality decisions. And that’s all I know. If anyone out there knows Professor Stras, took a class from him perhaps, please write in. We’d love to hear from you.
Finally, as has become my wont, I close with two observations of questionable consequence:
1. Does anyone else think that David Stras looks like a young Nino Scalia?
2. I think it is damned unfortunate that Governor Pawlenty chose to carry on so publicly this week about his dissatisfaction with the unallotment ruling, including spending most of his radio program reading from the dissent. I believe that the three Brayton dissenters came down as they did as a matter of principle, not to ingratiate themselves with the governor. This was a situation in which all three of the justices who voted in the governor’s favor were also aspirants for the Chief Justice’s job — you’d think that someone who cared about the Court’s reputation and integrity would approach it delicately. The Court has been harmed this week by the governor’s actions. It is not fair to the justices, including, most of all, Justice Gildea.