Nearly two years into her tenure as chief justice of Karlan’s Court, our legal columnist Pam Karlan talked to Web editor David Johnson via email about the perks of being on the BR bench, the legal column she would have happily died to write, and why she’s not surprised by John Roberts.
David Johnson: What kinds of responses have you received about your column?
Pamela Karlan: I’ve received great responses. Lots of colleagues and former students have read the columns and emailed me about them. And because the Review gets me to write about issues in a nontechnical format, I often also use the column as a springboard for talks I give to non-lawyer audiences, where the ideas also get a great response.
DJ: Are there any legal commentators that you follow and, if so, how does your approach differ?
PK: People who follow the Supreme Court are blessed with a great press corps: there are close to a dozen folks whose work I read on nearly every interesting case. But the newspaper-reporting format constrains many of them to two kinds of work: relatively straightforward accounts of the Court’s arguments and decisions or human-interest stories about the litigants. I’m trying to do something a little different: to put particular cases and issues in the context of larger developments in legal doctrine and to provide a sense of the Court’s movement as an institution. I’m also trying to give my readers a sense of how debates within the academy affect the practice of law.
All that being said, I particularly enjoy Dahlia Lithwick’s coverage in Slate. If only I could have written her column about the little-noticed FCC v. AT&T case, which involved the question of exceptions to the Freedom of Information Act, I would have died happy.
DJ: Has the process of writing a column on an issue ever changed your mind about that very issue?
PK: I wouldn’t say it’s changed my mind on the bottom line. But thinking through my argument, and reacting to comments from Simon Waxman and the other folks at Boston Review often helps me sharpen my perspective or see limits to the argument. That’s one of the reasons I so enjoy the work.
DJ: It was recently reported that public support for the Supreme Court has reached a 25-year low. Why do you think that is?
PK: First, there have been a number of controversial and unpopular decisions—Citizens United being perhaps the most visible. Second, we’re in a time of bitter partisan division and deep distrust of government, and it’s hard to see why those feelings wouldn’t rub off on the Court as well.
DJ: In your latest column for Boston Review, you argue that the Roberts Court has been forcing parties to argue issues they didn’t raise in ways that overturn precedent. Has the assertiveness of the Roberts Court surprised you?
PK: I’m not surprised. The chief justice spent much of his pre-Court professional life within a conservative legal movement, as did several of his colleagues. That movement dedicated itself 30 years ago to a long-term effort to move the law in a particular direction and it’s been doing exactly that. It’s often unclear beforehand whether the justices will use a particular case as a vehicle for moving the law, but that they engage in that kind of strategic thinking is no surprise at all.
DJ: Many legal commentators were taken aback by the oral arguments regarding the challenge to “Obamacare.” What did you take away from them?
PK: That the Court is deeply divided and doesn’t think much of the other branches of the federal government. We saw the same tone in the last sitting, with the justices hammering Solicitor General Donald Verrilli over the United States’s position on Arizona’s immigration law.
DJ: You also follow trends in the lower and state courts. Has there been anything occurring there lately that concerns you?
PK: The main thing that concerns me about lower federal courts is the vacancy crisis. It concerns me in the short run because it means that it takes longer for cases to get heard, particularly civil claims, and that judges are far too often making decisions under too much work and time pressure to do a careful job. This problem has been exacerbated by the huge number of immigration cases that go straight from a troubling administrative process to the courts of appeals. And it concerns me in the longer run because a combination of Republican intransigence and Democratic inattention to moving nominations through the system means that the lower federal courts will end up skewed to the right.
On the state courts, one concern comes from dramatic changes—and even more, fear of dramatic changes—in the judicial election process. Lots of money appears to be flowing into the system in ways that may make elected judges more hesitant to issue unpopular or controversial decisions. And lots of people depend on courts to resist popular pressure to apply the law fairly.
DJ: What is it like to be discussed as a potential Supreme Court nominee any time there is a vacancy?
PK: Totally flattering, but I’m not delusional. I’m just honored that people who care about the issues I care about think that I do a good job of articulating positions that need articulation. But I promise that, if nominated, I will just apply the law to the facts while being an umpire, not a player.