Tom Goldstein is going to a concert, and isn’t afraid to brag about it.
He held up two printed tickets with bar codes. “Don’t be jealous that I’m going to Katy Perry tonight.”
“Too late,” I responded.
SCOTUSblog is my first and often last stop for Supreme Court news. I read it for personal interest and I use the site in my practice as a teacher to help young adults understand the judiciary. SCOTUSblog inspired this website. I wanted to talk to him while I was in D.C. about the role SCOTUSblog plays in teaching readers about the Supreme Court in the final weeks of the Court’s term. This is a hectic time for him but he graciously invited me to his law office on Wisconsin Avenue to talk on a day sandwiched between two big decision days.
Goldstein challenges and redefines established Supreme Court advocate practices and norms in a few ways. For starters, that he’s not ensconced in Ivy League degrees is rare in This Town. That’s not to say he didn’t attend excellent schools, he did (American University Law School). Second, breaking with past practice, Goldstein created a law firm that takes on clients he can steer directly into the Supreme Court. Perhaps most importantly, he created the source on Supreme Court news, without the type of access other news sources have been given. SCOTUSblog, despite its reputation, accuracy, reliability, and millions of readers has been repeatedly denied a press pass by the Supreme Court and the Senate. All of these qualities make him a trailblazer forging a path that has and will continue to fundamentally change Supreme Court journalism.
I sat down to talk to this disrupter about teaching and mentors, why the Court shows him no love, his choice in live music (Katy Perry was his daughter’s idea, he claimed), and what the future holds for the Supreme Court. Throughout our meeting, Goldstein proved the intelligence, candor, and level of thought and effort put into the website is an extension of who he actually is. Our Q&A went like this:
ON MENTORS, TEACHERS & CAMERAS IN THE COURT
CG: What was school like for you?
TG: I bounced around schools growing up in Florida and South Carolina and was a member of the debate team in high school which I really enjoyed.
When I asked him who his mentors were, he spoke glowingly about his “adopted mother” Nina Totenberg, senior legal affairs correspondent at NPR. [SB loves her too!] Goldstein interned for her twice. His wife, Amy Howe – editor of SCOTUSblog – also interned for Totenberg, and one of their two daughters is named after her. Laurence Tribe, famous Constitutional scholar at Harvard is another one of Goldstein’s mentors.
CG: Justice Scalia has said that keeping cameras out of the Supreme Court is better because most people probably wouldn’t understand the legal minutia that often come up in oral arguments. They might take a sound bite after tuning in for only a couple minutes and take it out of context or make a broad assumption about the Court that is wrong. Do you agree with this presumption?
TG: No, and I think that’s stupid. I’ve testified in Congress that there should be cameras in the courtroom. I have a normative and substantive take on it. The normative explanation is – the Supreme court is a public institution. It’s super hard to get in. Most of the days there’s only 100 seats open to the public, and the court opens its doors maybe 80 days of the year. That’s only about 8,000 opportunities a year to get inside. There are 300 million people in the country. It’s incredibly expensive to get here (D.C.), and it’s a public session, it’s not private. I think as a public event, the country has the right – literally the right – to see what the process is like.
I also think the idea that it will be bad for the process is incorrect. If you ask any judge on any court, appellate court, the OJ debacle aside, they’ll tell you cameras haven’t disrupted the process. It disappears, people stop paying attention to the cameras, and judges aren’t hamming it up for the cameras. Now, I don’t think it will be heavily watched but during gay marriage, affirmative action, abortion cases – people will watch. As they should.
People will likely have greater confidence in the Court and won’t believe the mischaracterizations of the justices as political hacks. Jon Stewart is a problem. We’re a visual culture who very easily take things out of context and poke fun in the same way we do with the Hill and the President. The justices likely want not to be recognized. I’m sorry – you shouldn’t have become a Supreme Court justice and it doesn’t seem to bother you when you want to sell a book. I think they’re very misguided about the issue, which is not popular for a Supreme Court advocate to say, I know. But we’re at least a generation away from anything changing.
CG: I see it as an educational experience that even high school teachers, college and law professors could open up to our students to teach, and what a great learning opportunity that would be.
TG: It’s true. It’s pretty dry in written form. As complicated as the cases are, but because we’re so visual and aural, to be able to hear it and see it would make it less dry and even exciting to hear a decision.
CG: I think of you as a practitioner, a teacher, because I know you from the teacher institutes and you’ve taught for ten years at Harvard and Stanford. What have you thought of the teaching experience?
TG: I don’t know that I could be a pure teacher. I believe in the pedagogical value of the clinics we do at Harvard, but its value to me is in the actual work we do. The clinics were an outgrowth of all the pro bono cases I was getting. But I’m sort of an accidental teacher. I really like communicating about the Court, I like explaining what’s going on, I don’t take it too seriously, I have fun with it, and I respect the input anyone can give about it. The blog wasn’t started as a public service, but now it plays that role for people and they have been so generous and so kind about it.
ON SCOTUSblog’s PRESS PASSES:
CG: In May of 2013 you’d said you were going to get a press pass. Over a year later, what happened? And what at that time made you so optimistic?
TG: We were supposed to get a pass. The Court forever said you can’t have a press pass because we just follow the Senate credentialing process so go deal with them. The Senate said they would give us a pass so we went back to the Supreme Court and told the press office this, to which they said “Well, no. We’re now not going to follow the Senate, we’re going to develop our own credentialing.” They continue to accommodate us and give seats in the public section to Amy, if she requests it ahead of time. But who knows what will happen if that changes.
CG: Logistically, explain to me how the decisions get to you since you don’t have press passes. I’ve been in the press office and see Lyle Denniston, SCOTUSblog writer, in there but not inside the Supreme Court gallery. So how are the decisions getting to you?
TG: I do have someone in the gallery – not Lyle – and Lyle stays in the press office where he gets the decisions handed to him. Lyle is handed the decisions and then goes to a phone where we will all be on a conference call getting the opinions from him. Because we have so many people on the live blog, speed is at a premium.
CG: What’s the next step you’re going to take with either the Court or the Senate Committee of Correspondents?
TG: There are two different ways we can go. One is to appeal – which we’re going to do. The other is to sue – which we’ll do if we have to. A third option is to change to the model they want, which we’re not going to do because we can’t. We can’t cover all the cases at the Supreme Court without lawyers who practice at the Supreme Court.
CG: And you have no interest in stepping away from the practice for the sake of the blog?
TG: We can’t. If I did, then we’d still have to use lawyers who practice there to cover the cases and they said that’s forbidden. But I can’t because the blog exists only because I don’t take a salary from it. They have a design that makes it impossible for the blog to do what it does.
ON THE UPCOMING CASES IN THE COURT:
CG: What’s going to happen with the upcoming cases remaining this week? Let’s go through a few:
TG: Aereo is either engaged in a nonpublic performance where one stream of the TV show is sent to one person – one antenna – and sends it to one hardrive. The other way to look at it is to say – Oh, come on. You’ve only designed it that way to evade the copyright laws. What you’re really doing is running a cable company that anybody can subscribe to, and you’re making it available to the general public even if the internet is making it so that one person at a time can get it. It’s up to the Justices to take a technical or a practical view of what a public versus what a private performance is. I’m confident the Justices are going to take a practical view and say Aereo is violating copyright laws. I think probably 9-0.
Riley v. CA & U.S. v. Wurie (4th Amendment cases)
TG: I think at least Riley will win in the Smart phone case. Wurie had the flip phone and seems less likely to win. The question in these cases is whether the justices will draw a bright line rule that says ‘go get a warrant’ or one to call in for a telephonic warrant and if you’re worried about text being deleted, put it in a Faraday bag. I’m torn about what’s going to happen and it’s either Justice Breyer or the Chief Justice writing the opinion. If Breyer is writing then both are likely to win. If the Chief Justice is writing then the opinions could split.
TG: The Court is definitely going to cut back on the recess appointment power in a significant way. These NLRB appointments will be invalidated and it’s going to be materially harder for the president to use the appointment power, particularly if the House is in the hands of the opposing party since the House sets the Senate’s calendar. The House can set up the recesses in a way to take advantage of the Court’s decision. In all likelihood, when things change in the November elections then it could really give the Republicans much greater influence.
TG: Likely going to limit the contraception mandate.
TG: Likely to expand protesters right.
TG: This is the sleeper case. In the end, I think unions are going to dodge a bullet. But, there are a number of justices who are very interested in holding that teachers unions can’t impose fees on all the teachers, which would be the death knell of the unions.
CG: What’s up for next term?
TG: Abortion is going to generate a lot of court attention. The Texas abortion provider location case is in the 5th Circuit. Justice Breyer wrote an opinion earlier this term saying he thought it was likely going to end up in the SCOTUS. Same-sex marriage has a real shot next term. Conservatives are likely to move with the first case they can get because they’re afraid the longer the wait the more likely Kennedy is going to decide he doesn’t want to be on the wrong side of history. Affirmative Action may be back with the University of Texas Fisher case. That collection would make for a historic term.
ON…PRETTY MUCH ANYTHING I COULD ASK HIM
CG: My students ask me all the time if they should go to law school. What would you say?
TG: I think you should only do what you’re gonna do because you love it. You shouldn’t go to law school because you think you’ll make money doing it, or somebody else told you should. If you’re going to do something well it’ll be because you wake up every morning so excited to do it. The most interesting things are hard. None of us is a super-genius and we all have to work super hard. But it’s a debt trap. Don’t be in a huge hurry to go out and do it. If you know you love the law then you should go to law school.
CG: Who’s the next to retire in the SCOTUS?
TG: Depends on the president. If a democrat wins, it’ll be Ginsburg. If a republican wins, it’ll be Scalia or Kennedy in the second half of that term. We have four justices in the latter half of their 70s so it’s likely that the next president will tilt the shape of the court.
CG: You can bring one book, one album, and one movie with you to a deserted island. What three do you bring?
TG: For the book, I’d have to say it’d be a dictionary. The album would have to be something classical that’s timeless. The movie would be Ferris Bueller’s Day Off.
By: Cara L. Gallagher