Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog. A version of this piece was originally posted there on April 18, 2010. Supreme Court retirements inevitably produce much more coverage of process than substance. The press is dominated by political rather than legal reporters. Politics is also more familiar and therefore more accessible to the public than are court decisions. The irony is that this attention to process is not very meaningful—at least at this stage, when there is no nominee.
One Case at a Time: Judicial Minimalism on the Supreme Court by Cass R. Sunstein (Harvard University Press, 290 pp., $29.95) I. America now is a society addicted to legalism that has lost its faith in legal argument. The impeachment of Bill Clinton was only the most visible manifestation of this paradox.
"You have no right or authority under the law, as independent counsel, to advocate for a particular position on the evidence before the Judiciary Committee," Sam Dash wrote to Kenneth Starr last week, announcing his decision to resign as Starr's $400-an-hour ethics adviser. But Dash's frantic attempt to save his tattered reputation after Starr's appearance before the House was several months too late.
At the Supreme Court last week, during the argument in Oncale v. Sundowner Offshore Services, the justices seemed skeptical of the shipping company's claim that same-sex harassment could never be illegal under Title VII of the Civil Rights Act. Joseph Oncale, the oil-rig roustabout whose supervisor allegedly put his penis on Oncale's head, had sued for harassment, and the U.S. Court of Appeals for the Fifth Circuit held that sexual harassment doesn't include men behaving badly with other men.
The conservative justices are privately exuberant about the remarkable Supreme Court term that ended last week. Surprised and slightly dazed by the magnitude of their victory, they think they have finally exorcized the ghost of the Warren Court, fulfilled the goals of the conservative judicial revolution and vindicated the ideal of a color-blind Constitution for the first time since Reconstruction.