Ex-Dean: Justices Not Rigid
Former Stanford Law School Dean Kathleen Sullivan delivered a speech at LSU on constitutional law and its non-partisan influences. 2 the Advocate’s Jordan Blum reports:
Former Stanford Law School Dean Kathleen Sullivan said Tuesday that “constitutional law really is law” when ruled on by the U.S. Supreme Court and not the result of partisan politics.
Sullivan, who made national news in 2009 as potentially the first gay U.S. Supreme Court nominee, compared constitutional law to a “rudder” in guiding court rulings that should not be depicted as too rigid.
At her speech at the LSU Law Center, Sullivan focused on two recent free-speech cases: Citizens United v. Federal Election Commission and Christian Legal Society v. Martinez, when the “so-called liberal” justices were the ones who went against free speech.
“These apparent inconsistencies illustrate constitutional law really is law,” said Sullivan, a partner at the Quinn Emanuel Urquhart & Sullivan law firm in New York.
She gave the public lecture — “Is Constitutional Law Law? Recent Trends in Free Speech and Federalism” — at LSU as part of the Judge Alvin B. & Janice G. Rubin Visiting Professor of Law Program.
Sullivan called it “terribly” wrong when the media and others assume the justices will fall on narrow 5-4 rulings just because of their political leanings.
“Of course, politics can play a role,” she said, especially in the Supreme Court selection process.
But, she argued, the quality of the justices and their life tenure prevent politics from deciding everything.
“It looks political for a nanosecond and, in the long run, it works out OK,” she said.
Essentially, Sullivan said, the “conservative” justices ruled in favor of free speech, even if the free speech supported corporations.
Likewise, in the Christian Legal Society case, the U.S. Supreme Court went 5-4 — this time with the “liberals” and Justice Anthony M. Kennedy in the majority — against free speech, she said.
In some cases, Sullivan said, conservative or liberal justices may interpret that the need for “liberty” and “justice” outweighs freedom of speech.
The same issues can apply with supposedly partisan issues of federalism and states’ rights, she said, again referencing the rudder.
“It’s kind of a mistake to wake up and say, ‘I am always for states’ rights,’ ” she said.
Sometimes, “liberals” back civil litigation rights over federalism, she said.
It is not a time to “despair” or a “gotcha” moment, Sullivan said, when one decides, “Oh no, I was for states’ rights until I was against them.”
Instead, “It’s a moment to celebrate,” she said, because every case can be a little different.