SCOTUS Notis* Kristin Myles, Michael Mongan, and Michelle Friedland Each year, law students toil in libraries across the country in the hopes of completing a student note that will be published in their campus law review. A published student note is an impressive credential for a law student. Judges favor clerkship applicants with published notes, as do many other legal employers. And a record of publication is a prerequisite to almost any academic job. Writing a student note also provides an opportunity to develop expertise in a corner of the law, and the choice of topics may signal the law student s interests and career goals. But what do the dusty, bound law review volumes say about our current Supreme Court justices? Did the justices have this credential, and, if so, did their notes foreshadow the careers that would follow? In this column, we peer back through the decades at a handful of student notes drafted by ambitious young scholars who would come to serve on our nation s highest court. We found no formal record of student notes published by Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, or Clarence Thomas. They may have published notes anonymously, which was a common practice at the time these justices were in law school. 1 Or perhaps they never published a note. 2 54 SPRING 2013 *Notis is Latin for notes.
But the four newest additions to the Supreme Court bench Chief Justice John G. Roberts and Justices Samuel A. Alito, Sonia Sotomayor, and Elena Kagan published a total of six written pieces in the Harvard Law Review (Roberts and Kagan) and the Yale Law Journal (Alito and Sotomayor). The associate justices each published a single note, while Chief Justice Roberts, the consummate overachiever, published three separate pieces (a note and two comments). Perhaps not surprisingly, all but one of the articles related to constitutional law. All were substantial and heavily footnoted pieces, ranging in length from 11,000 to 19,000 words. Justice Sotomayor s note showed a particular knack for the genre: she wrote 4,000 words above-the-line, and a whopping 10,500 words in footnotes. Over the years since their publication, the justices notes have received various levels of attention. Despite being published most recently, Justice Kagan s note has received the most citations, including two by federal circuit courts of appeal, four by federal district courts, and several dozen in briefs, law review articles, and other secondary sources. Justice Alito s note was also cited by two federal appellate courts, as well as an administrative decision and twelve law review articles. Chief Justice Roberts s and Justice Sotomayor s notes have received comparatively less attention; each has been cited fewer than ten times. The balance of our column reviews the justices early academic efforts. All of these notes are not only impressive scholarly pieces but also demonstrate a willingness to tackle thorny constitutional issues and to question existing norms, practices, and legal rules. Chief Justice Roberts Chief Justice Roberts s note, The Takings Clause, Developments in the Law Zoning, 3 critiqued several tests proposed by courts and scholars to determine when the regulation of property required the government to compensate property owners. He rejected all of the existing tests as wrongfully attempting to reduce compensation questions to specific rules. Instead, he proposed a more flexible, abstract standard that would not advance an exclusive, overarching principle of general applicability. His proposed approach would have looked first at whether compensation was necessary to maximize efficiency in a utilitarian sense. Next, it would have asked whether the results of the utilitarian analysis needed to be modified in order to be fair to individuals (for example, by not placing more of the burden of a regulation on one property owner than on other similarly situated owners), or in order to avoid undermining the very personality of the property owner (in situations in which, as Chief Justice Roberts put it, property holdings or uses [are] so intimately bound up with their owners as to be extensions of the property holders themselves ). The note then argued that compensation amounts should be tailored to achieve these utilitarian, fairness, and personhood goals. Chief Justice Roberts took the position that this would generally result in less compensation than under the prevailing legal standard, which compensated property owners for the market value of the property s highest and best use. During his confirmation process for the D.C. Circuit in 2003, Senator Russ Feingold of Wisconsin questioned Chief Justice Roberts regarding his note, asking whether he retained the views he expressed twenty-five years prior. Roberts quipped, I would, if confirmed as a circuit judge, follow Supreme Court precedent in this area, as in any other. I would not follow my student note; no one else has. 4 Roberts also published two short case comments in the Harvard Law Review. 5 Each reviewed a decision from the Supreme Court s 1977 Term, Allied Structural Steel Co. v. Spannaus, 6 which overturned a Minnesota law that altered pension agreements between employers and their employees under the contract clause; and Houchins v. KQED, Inc., 7 which held that the media were not enti- THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 55
tled to a special right of access beyond that of the public. Both comments were almost entirely descriptive, and neither was mentioned in Chief Justice Roberts s confirmation hearings. Justice Alito Before graduating from Yale Law School in 1975, Justice Alito published a student note titled The Released Time Cases Revisited: A Study of Group Decisionmaking by the Supreme Court. 8 The note examined Illinois ex rel. McCollum v. Board of Education 9 and Zorach v. Clauson, 10 in which the Court considered whether the establishment clause of the First Amendment prohibited public schools from releasing students to take religious education classes during school hours. Rather than a typical case analysis, Justice Alito s unconventional note explored the records of correspondence and discussions between justices during consideration of the released time cases and analyzed how the justices exchanges in the conference and during the opinion-writing process were (or were not) reflected in their published opinions. Justice Alito used these materials largely drawn from Justice Harold Hitz Burton s archives to demonstrate how academic and judicial attempts to discern the justice s views from the published opinions in these cases were largely incorrect, and how the opinions themselves failed to reflect the compromises and understandings that informed the justices votes in the two cases. In McCollum, the Court invalidated a released time program employed by the Champaign, Illinois, School Board, holding that the program violated the establishment clause. Four years later, in Zorach, the Court upheld the constitutionality of a similar released time program employed in New York, largely on the ground that, unlike the Champaign plan, the New York plan did not employ public school classrooms for religious education. In analyzing the records of the justices communications with respect to these two cases, Justice Alito concluded that the written opinions in McCollum and Zorach misled interpreters into believing, for example, that some of the justices changed their views between the two decisions, possibly in response to adverse public reaction to McCollum. Justice Alito demonstrated that, in fact, the justices had reached an internal compromise in the deliberations over McCollum that then manifested itself in the result in Zorach. He also noted that the significance of certain factors in the Court s decision such as whether public classrooms were used had been misinterpreted in later decisions to mean more than the factors meant to the justices at the time McCollum was decided. Justice Alito made three suggestions to help prevent readers of future Supreme Court opinions from being misled. First, he warned readers to avoid trying to discern the Justices motivations from the written opinions. Second, he recommended that readers learn to detect certain unmistakable signs on the written opinions that the justices bargained or negotiated extensively, which may reflect that the written opinion may not represent the actual position of any of the justices who signed it. Finally, Justice Alito reminded readers that sometimes the members of the Court may decide a case without reducing their rationale to precise terms, and that sometimes an ambiguity in the Court s published opinions may mean that the Court did not reach a consensus on the question that was left ambiguous. During his tenure on the Court, Justice Alito has had the opportunity to weigh in on a number of cases that bear on the establishment clause. In Hein v. Freedom from Religion Foundation, 11 for example, the Court considered whether citizens have standing as taxpayers to challenge expenditures by the executive branch as violating the establishment clause. By a 5 4 vote, the Court held that citizens do not have standing by virtue of their status as taxpayers. In his plurality decision, Justice Alito noted that the payment of taxes is generally not enough to establish standing to challenge an action taken by the Federal Government, distinguishing the Court s earlier decision in Flast v. Cohen. 12 56 SPRING 2013
Justice Alito s note on the released time cases received the Israel H. Peres prize for the best student contribution to the Yale Law Journal in 1974. It was also one of the few student notes to prompt questioning from the Senate Judiciary Committee. During Justice Alito s confirmation hearing, Senator Dick Durbin from Illinois asked then-judge Alito what had troubled him regarding the Court s past establishment clause jurisprudence: [I]n the second year in law school you wrote a paper about the Establishment Clause. What was it that troubled you, if you remember? 13 As nominees often do, Justice Alito responded to the question at a high level, without offering details or specifics. He cited the note as an illustration of the sort of thing that has interested me and troubled me about [establishment clause] jurisprudence for a long time. Namely, Justice Alito said that he has been bothered by the Court basing its establishment clause decisions on distinctions that turn on very fine lines. One suspects this was a reference to the various specific features of the two released time programs that were addressed in McCollum and Zorach but that did not, in then-student Alito s opinion, explain the differing results in the two cases. The justices notes reveal thoughtful young students, unafraid of questioning established legal rules and advancing innovative ideas that would one day garner the attention of federal courts. Interestingly, although Justice Alito s note directly concerned the establishment clause, very little in the note would bear upon his later opinion for the Court in Hein. Even though both of the cases that Justice Alito discussed in his note involved establishment clause challenges by taxpayers, the taxpayer standing question was not addressed in the note, which focused instead on the substance of the establishment clause challenges in the released time cases and the justices views on certain specific aspects of the released time issue. Justice Alito also parsed the specific facts involved in the two cases the use or nonuse of public school classrooms, whether the school kept records of students attendance at religious classes, and other factors and opined that these facts had less to do with the outcome in the two cases than scholars and later judicial opinions would suggest. Although not shedding significant light on his later establishment clause jurisprudence, Justice Alito s note is of practical interest in the wake of National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) the Court s historic Obamacare decision which has sparked discussion, rumor, and speculation about the Court s internal decision-making processes and the extent to which that process is reflected in the Court s written opinions. Justice Sotomayor Five years after Justice Alito s note appeared in the Yale Law Journal, Justice Sotomayor published her own student note, Statehood and the Equal Footing Doctrine: The Case for Puerto Rican Seabed Rights. 14 The note predicted that negotiations between Puerto Rico and the United States would soon begin on the subject of statehood as an alternative to the island s current commonwealth status. Justice Sotomayor suggested that, in such negotiations, Puerto Rico could demand exclusive rights to exploit its surrounding seabed, and she discussed whether Congress could grant Puerto Rico these exclusive rights without violating the equal footing doctrine, which generally prohibits Congress from granting rights to an incoming state that exceed those granted to any existing state at its admission. As the note explained, Hawaii had requested rights to the seabed between its islands when ne- THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 57
gotiating statehood but was ultimately denied such rights based on the equal footing doctrine. Despite this, the note argued that the equal footing doctrine creates only a rebuttable presumption in favor of national rights to the seabed surrounding states, and suggested that Puerto Rico should seek a grant of extensive seabed rights in any compact for admission to the union. Upon her nomination to the high Court, Justice Sotomayor s student note sparked little commentary in the blogosphere. A few conservative writers criticized Justice Sotomayor for her allegedly negative depiction of the United States as a colonial power and for advocating the preferential treatment of Puerto Rico over other states. 15 Such sentiments, however, did not surface in Justice Sotomayor s nomination hearing. Thirty-three years after Justice Sotomayor s note, Puerto Rico remains a commonwealth and questions of its potential statehood remain unanswered. This past November, however, Puerto Ricans voted in favor of statehood for the first time. 16 So the issues discussed in Justice Sotomayor s note might soon come to the fore. Although the narrow question of Puerto Rican rights over seabed resources has not yet surfaced at the Supreme Court, Justice Sotomayor and her colleagues did have a chance to address the equal footing doctrine in PPL Montana, LLC v. Montana. 17 That case considered whether segments of rivers in Montana were nonnavigable, as federal law defines that concept for purposes of determining whether the state acquired title to the riverbeds underlying those segments when it entered the union in 1889. Justice Sotomayor s note was not mentioned in the Court s opinion. Justice Kagan In her final year at Harvard Law School, Justice Kagan published Certifying Classes and Subclasses in Title VII Suits. 18 The note examined two competing approaches federal courts used to determine whether to certify a class in the context of Title VII antidiscrimination cases. A minority of courts followed an across-the-board approach, permitting class certification as long as all of the class members belonged to the same racial, religious, gender, or national group. Most other courts, however, followed a strict, unity-of-interest rule. Under that approach, Justice Kagan explained, courts required that class members have closely congruent employment experiences and claims. For example, courts prohibited employees who held different types of jobs or worked in different facilities from representing one another. The Supreme Court s only statement on the conflict at the time that Justice Kagan wrote, General Telephone Co. v. Falcon, 19 was somewhat ambiguous. The Court stressed that a class representative must possess the same interest and suffer the same injury as members of the class; 20 but it also accepted the proposition underlying the acrossthe-board rule that racial discrimination is by definition class discrimination. In assessing this competing authority, Justice Kagan arrived at a pragmatic middle ground. She criticized the acrossthe-board approach on the basis that it was inconsistent with the requirements of Federal Rule of Civil Procedure 23, and failed adequately to protect the interests of absent class members, who might have very little in common with the class representative. She was equally critical of the unity of interest approach, which she argued inhibit[ed] effective enforcement of title VII by requiring classes so small that they materially reduced the incentive for plaintiffs to litigate. The better rule, Justice Kagan proposed, was a middle-ground approach that relied on the use of subclasses. She argued that courts should take an active role in encouraging the formation of subclasses, such as by developing different subclasses for job applicants, employees, and former employees. Justice Kagan believed this approach would protect the interests of absent class members while also allowing broad Title VII classes to be certified. Justice Kagan s short tenure on the Court has not offered many insights into whether her early enthusiasm for subclassification will influence her jurisprudence on class actions. She did, however, author the majority opinion in 58 SPRING 2013
Smith v. Bayer Corp., 21 which held that a federal district court exceeded its authority by enjoining a state-court class certification proceeding in a suit concerning pharmaceuticals. And she joined Justice Ginsberg s opinion concurring in part and dissenting in part in Wal-Mart Stores, Inc. v. Dukes, 22 a case involving a broad proposed class of [a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998. Justice Ginsberg argued that the plaintiffs had satisfied Rule 23(a)(2), which requires questions of law or fact common to the class, by targeting employment policies and practices that applied to female Wal-Mart employees on a global basis. Interestingly, both parties in Wal-Mart cited Justice Kagan s student note in their briefing a wise move in a case where a sitting justice has published a note on the subject matter though they did so only for the general proposition that Falcon created conflicting approaches to class certification, and did not mention her primary argument regarding class subdivision. The note was not cited in any of the opinions in the case. The justices notes reveal thoughtful young students, unafraid of questioning established legal rules and advancing innovative ideas that would one day garner the attention of federal courts. As the students of today polish their own notes, they should bear in mind the possibility that one day, they too may be the subject of an article like this one. Kristin Linsley Myles, Michelle Friedland, and Michael Mongan are litigators at Munger, Tolles & Olson in San Francisco and all clerked at the Supreme Court for Justices Scalia, O Connor, and Souter, respectively. The authors express their great appreciation to Justin T. Hellman, a 2012 summer associate with Munger, Tolles & Olson, who contributed substantially to this column. Notes 1. Justice Scalia was the notes editor at Harvard Law Review while in law school. Justice Breyer served as articles editor for the Harvard Law Review. Justice Ginsburg served as an editor of the Harvard Law Review for one year before transferring to Columbia Law School. It was once customary for student notes to be published anonymously. As the Stanford Law Review explained in its President s Page in 1952 the year that Chief Justice William Rehnquist served on the Law Review notes and comments are not, and should not be, the work of any one person, for student works are the product of a collaborative writing process. 4 Stan. L. Rev. 175 (1952). This remains the practice at the Harvard Law Review; see About, www. harvardlawreview.org/about.php (explaining that student notes are not signed because many members of the Review, besides the author, make a contribution to each published [student] piece ), although the veil of anonymity was pierced in the cases of Chief Justice Roberts, Justice Alito, Justice Sotomayor, and Justice Kagan, who identified their student work in questionnaires filed with the Senate Judiciary Committee. Most law reviews have changed the practice to permit student authors to sign their notes. 2. At many law schools, only members of the law review may publish notes. At least two of the current justices, Justices Kennedy and Thomas, appear not to have been members of their respective law reviews. 3. 91 Harv. L. Rev. 1462 (1978). 4. Stephen Labaton and Jonathan D. Glater, As a Lawyer, Court Nominee Was Considered a Skillful Advocate for Corporate Clients, New York Times, July 21, 2005, available at www.nytimes. com/2005/07/21/politics/21bizcourt.html. 5. Comment, Contract Clause: Legislative Alteration of Private Pension Agreements, 92 Harv. L. Rev. 86 (1979); Comment, First Amendment: Media Right of Access, 92 Harv. L. Rev. 174 (1979). 6. 438 U.S. 234 (1978). 7. 438 U.S. 1 (1978). 8. 83 Yale L.J. 1202 (1974). 9. 333 U.S. 203 (1948). 10. 343 U.S. 306 (1952). 11. 551 U.S. 587 (2007). 12. 392 U.S. 83 (1968). 13. Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the Comm. on the Judiciary U.S. S., 109th Cong. 569 (2006). 14. 88 Yale L.J. 825 (1979). 15. Roger Alford, Sonia Sotomayor s Affirmative Action Plan for Puerto Rico, Opinio Juris, (June 3, 2009, 4:38 PM), http://opiniojuris. org/2009/06/03/sonia-sotomayors-affirmative-action-plan-for-puertorico/. 16. Mariano Castillo, CNN, Puerto Ricans Favor Statehood for the First Time (Nov. 8, 2012), http://edition.cnn.com/2012/11/07/ politics/election-puerto-rico/index.html. 17. 132 S. Ct. 1215 (2012). 18. 99 Harv. L. Rev. 619 (1986). 19. 457 U.S. 147 (1982). 20. 457 U.S. at 156 (internal quotation marks omitted). 21. 131 S. Ct. 2368 (2011). 22. 131 S. Ct. 2541 (2011). THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 59