Ken Starr, Drew Days Discuss Revealing Supreme Court Term
The Section of Litigation presented a high-powered U.S. Supreme Court wrap-up panel today featuring two former U.S. solictors general and a nationally known Stanford Law School professor providing commentary at its session “The Roberts Court—The Terrible Twos, or Childhood Bliss?”
Panel members Kenneth W. Starr, solicitor general under George H.W. Bush, Drew Days III, solicitor general under Bill Clinton, and Stanford’s Pamela S. Karlan offered a wide variety of perspectives on the last term, but few conclusions were drawn as to whether the Roberts court moved in any specific direction. Rather, they said, the court was more chameleon-like, depending on the issue at hand.
Citing the U.S. Supreme Court’s recent 5-4 decision on the Second Amendment in District of Columbia v. Heller, Karlan said the case was striking for the sheer amount of constitutional jurisprudence found in the decision. All the justices on each side of the decision used varying methods to interpret the Second Amendment—from original text to historical context to contemporary community standards—to help reach their decision. In the end, however, Karlan said the justices just disagreed over their respective interpretations.
Some of the cases from the last term also revealed a court very skeptical about civil litigation, according to Starr. Citing Washington State Grange v. Washington State Republican Party, Starr said the March decision shows the court thinks civil litigation is avoidable and is skeptical to facial challenges of laws, initiatives and statutes. “They are saying ‘show me’ to facial challenges,” he said.
Days, now a law professor at Yale University, said that when it came to criminal cases, the high court harkened back to the Warren Court in many ways. Citing cases before the court this term on peremptory strikes, right to counsel and pro se competence, Days said the court revealed itself to be particularly concerned about whether people are adequately protected in the criminal process.
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