Topic: Supreme Court's Decision & Christine Franklin (Title IX Case)
Senator: Leahy
Date: SEPTEMBER 15, 2005
Contents
SPECTER: Good morning, ladies and gentlemen.
Good morning, Judge Roberts.
ROBERTS: Good morning, Mr. Chairman.
SPECTER: We will now proceed to the third round of questioning, which will be abbreviated. There are six senators on the other side of the aisle who have requested additional time. There will not be a third round for any of the senators on the other side of the aisle.
We will go into a closed session a little before 11 and we will turn to the outside witnesses hopefully at 11:30. And we project a conclusion late this afternoon, but that will depend on a sequence of events.
I now yield to my distinguished colleague, Senator Leahy, for 20 minutes.
LEAHY: Thank you, Mr. Chairman.
Judge, you're really going to miss us, aren't you? You're going to miss doing this every day. I mean, it's -- you're not even going to answer that one, are you?
(LAUGHTER)
ROBERTS: Well, it's a once in a lifetime experience, Senator.
LEAHY: When we left off the other day, you and I were discussing the Supreme Court's decision and Christine Franklin -- the Title IX case. This, for those who may have forgotten, was the case of very, very serious sexual abuse of a young girl by her teacher. It makes your skin crawl just to hear the facts of it.
Now, Justice White's opinion for the Supreme Court rejected your technical legal arguments. You had argued she should not be allowed to sue for damages.
He wrote, quote, "From the earliest years of the republic, the court has recognized the power of the judiciary to award appropriate remedies to redress injuries actionable in federal court." He went on to note that, "To disallow damages, remedy in this case would be to abdicate our historic judicial authority, to award appropriate relief in cases brought in our court system."
And then most tellingly, Justice White wrote that your argument that Christine Franklin's remedy should be limited to backpay and injunction, a position you had reiterated a couple days ago -- he said that that conflicts with sound logic. He went on to say that it's clearly inadequate. And he wrote that backpay does nothing for in prospective relief in the court where there's no remedies at all.
Now, the reason I raise this case, not that it's one of those rare ones where you are on the losing side, but I raised it because I thought it was a case about what our courts should do, including doing justice and remedying rights and protecting Americans.
LEAHY: So my question to you is this: Do you now recognize that the Supreme Court's view in the case set forth in Justice White's opinion was the right one, and the positions of the United States in your brief were the wrong ones?
ROBERTS: Well, as a judge, looking at it, obviously when you lose a case, as you point out, 9-0 it's a pretty clear signal that the legal position you're advocating was the wrong one.
The position the administration took in that case was the same position that the Court of Appeals had taken. In other words, what the Supreme Court did was reverse the lower court.
So I'm just explaining why the position we took prior to the decision may have looked different than it did after the...
LEAHY: I understand that. I thought I, sort of, laid that out earlier.
But my question is: Do you now accept that Justice White's position was right and the government's position was wrong?
ROBERTS: I certainly accept the decision of the court -- the 9-0 decision, as you say -- as a binding precedent of the court.
Again, I have no cause or agenda to revisit it or any quarrel with it.
The issue, of course, is the one of: What remedies are available for an implied cause of action? The reason I think that the lower courts came out the one way and the Supreme Court came out one other way is that you're dealing with an implied cause of action. In other words, it hasn't been spelled out.
LEAHY: I think the Supreme Court was looking -- acting, as they felt, within the law, for an area that would actually bring justice.
That was basically my point. It may have been implied, but they looked within the case. They looked within the law. And they found an area to bring justice.
And I realize hard cases sometimes make not the best law, but I think this case is a hard case but it made good law.
LEAHY: Would you agree?
ROBERTS: I have no quarrel with the court's decision, Senator.
LEAHY: You have been involved a great deal in the development of the Supreme Court authority limiting the ability of individual Americans to ensure they actually receive the rights and protections that Congress has mandated under spending clauses.
In the Reagan administration, you advocated legislative responses to Maine v. Thiboutot. That's how the Supreme Court tell us it's pronounced. It's not how those of us who live -- the way those of French Canadian descent might say it.
That was a case that recognized broad access to courts to vindicate your rights under federal law. You criticize the damage supposedly caused by that case in a 1982 memo.
And then you wrote briefs and argued before the Supreme Court in the '80s and '90s. We've talked about some of these, South Dakota v. Dole, Wilder v. Virginia Hospital, Sutter v. Artisam, Gonzaga University v. Doe, and you call for the narrowing of Congress spending powers, eliminating the right of individuals to sue to compel the protections Congress required under federal law.
I worry about this if an individual loses their right to sue, if the state or the administration or whoever the administration might be doesn't protect their rights. For example, if the only remedy for a state's refusal to live up to its obligations under a spending power enactment, like Medicaid or another such program, is action by the federal government and the federal government doesn't act, where does that leave the rule of law? Where does that leave America's sense of justice if an individual can't -- doesn't step in and seek action?
ROBERTS: Well, two points, Senator.
ROBERTS: The issue in the spending clause cases that you referred to -- Wilder, the later one, Sutter case, and the Gonzaga case that I argued when I was in private practice -- the issue is one of congressional intent.
The question is: Did Congress intend there to be a private right of action? That's what the courts are trying to figure out.
And if Congress did intend there to be private right of action, if Congress intended this to be actionable, whether through Section 1983 or under the law itself, then there would be a private right of action.
In some cases, Congress doesn't intend that. And in those cases there wouldn't be.
I would say that...
LEAHY: Go ahead.
ROBERTS: I was just going to make the point that in those cases, of course, I was advocating the position for a client.
I did have occasion as a judge to address a spending clause case. It was a case called Barbour v. Washington Metropolitan Area....
LEAHY: But that one the statute was pretty darn clear.
ROBERTS: Well, it was a 2-1 decision; divided decision on a court that doesn't often issue 2-1 decisions. There was a lengthy dissent saying that Congress did not have the authority to require...
LEAHY: Judge Sentelle dissented?
ROBERTS: Judge Sentelle dissented.
LEAHY: I read that. I don't want to go into that; he's not here before us.
But what I worry about, though, is the trend of these (inaudible) that may say that Congress intended these programs, more like Medicaid, a commitment there to be, kind of, an exclusive bargain between the federal government and the state government.
And that raises a question in my mind. I mean, do the courts really think we've made empty promises?
I thought of this the other night. Because I remember what you said about the empty promises of the Soviet constitution.
LEAHY: But wouldn't it be an indication we were making the same kind of empty promises if individuals can't sue if they're left as innocent bystanders who are harmed, but they have no remedy, if the state is negligent in acting or if the federal government doesn't protect it?
I mean, why shouldn't they be able to sue to get the promises that are made in these bills so it's not like the Soviet constitution: great promises, but empty?
ROBERTS: Well, the issue is not whether they should be able to sue or not. The issue is whether Congress intended them to be able to sue or not.
The issue doesn't even come up if Congress would simply spell out in the legislation, "We intend these individuals to have the right to sue in federal court." That would prevent the issue from even coming up.
All of those cases we've been talking about arose because Congress did not address the question and, therefore, the courts...
LEAHY: Congress assumes the states and the federal government are going to do what the law spells out. We don't do it as an empty promise; we assume they're going to do it.
When they don't do it, if you're developmentally disabled, Medicaid kids, foster kids, rape victims and so on, shouldn't they be able to have a voice?
ROBERTS: Well, if Congress wants them to sue, all Congress has to do is write one sentence saying "individuals harmed by a violation of this statute may bring a right of action in federal court." There are laws where Congress says that and that question never comes up.
The issue in the various cases that we've been talking about, including in the Barbour case, where I ruled that the individual did have the right to sue -- when I was a judge -- the issue is what did Congress intend? And all too often that issue is not even addressed.
I don't know whether it's because of inadvertence or it's because of inability of Congress to agree and both sides, sort of, say, "Well, let's let the courts figure it out."
LEAHY: May be the assumption of those of us who take an oath of office here to uphold the laws that the state government, those officials who take similar oaths of office, or the administrators and the national government takes similar oaths of office are actually going to do what they've sworn to do.
ROBERTS: Well...
LEAHY: Can I move on? Because it also goes to -- and I understand your point on this. And we can probably debate this all morning long. But I hope you understand my concern, which is a concern of a lot of the American people in this area.
Let's go to another precedent that I know moved me a great deal, Gideon v. Wainwright.
LEAHY: As a young law student, my wife and I had an opportunity to have lunch with Hugo Black shortly after that. One of the most memorable times I had.
He's a former senator. He recognized the Sixth Amendment's guarantee to counsel in a criminal, with a fundamental right to a fair trial. He called it an obvious truth. In an adversary system of criminal justice, any person held in a court who's too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for them.
A wonderful book, "Gideon's Trumpet," that Anthony Lewis wrote.
ROBERTS: Sure.
LEAHY: Doesn't Gideon stand for the principle that it would be meaningful -- such a fundamental right as the right to counsel -- it requires assurances that it can be exercised?
ROBERTS: Yes, I think so.
I've often said that a lot of these difficulties, particularly in the areas of the legal errors being raised and collateral review -- a lot of those difficult questions could be avoided if people had competent counsel from the very beginning.
LEAHY: Well, doesn't the same principle embodied in Gideon, that the Constitution guarantees a person's ability to exercise fundamental constitutional rights -- doesn't that apply to other constitutional rights?
I mean, to be meaningful, we have these rights; they've also got to be real in people's lives.
ROBERTS: Well, I think the basic instinct and genius behind the Gideon decision was without counsel to protect people's rights, they were going to forfeit them, they were going to waive them, due to ignorance or inability to appreciate the proceedings. That's why you need counsel at that stage.
It's not because you have a right to counsel in the abstract. It was the recognition that having counsel is a way to ensure the protection of your other rights that you may not even be aware of.
LEAHY: That could be with a lot of our rights. They've got to be meaningful. You can't just say, "You have them."
And I'm really struck by your discussion of the Soviet constitution. I totally agree with you on that, but we have 280 million Americans of all different economic and educational backgrounds and everything else.
We have wonderful rights. Our Bill of Rights is, I think, one of the most amazing things ever written by democratic people.
But the rights are only there if they're meaningful in people's lives; that they can be enforced.
And ultimately, that may come right down to the courts. I mean, Hugo Black's opinion is a pretty strong opinion.
LEAHY: You suggest I may have over-read your memo on Grenada. You said it really talked about veterans' rights but, actually, your memo -- what struck me, it doesn't say "veterans' rights," it says "war powers" on it.
The Constitution invests the power of declaring war in Congress not the president. I still have a hard time squaring that with your inherent authority arguments you advance in that Grenada memo.
Maybe I could ask it this way: Do you continue to believe that the president has inherent authority to invade a sovereign nation, absent attack by a foreign power?
ROBERTS: Senator, that is a very abstract hypothetical. There are situations that arise when an executive may determine that that type of action is necessary. That may be challenged. I don't think abstract questions like that should be answered.
There have been situations in our past where that authority has been claimed both abstractly and concretely. Certainly Congress has the power to declare war but, as you know, of course, there have been several incidents in our history -- the Korean War, the Vietnam War, others -- where there has been authorization for the use of force, not a declaration of war.
You know the history when Madison's original proposal gave Congress the authority to make war and he thought that should be changed so that the executive would have the authority to respond to an invasion and I appreciate that part of your question.
LEAHY: But you also have George Washington -- if you're going to quote people back to that time -- George Washington spoke of "no offensive expedition of importance can be undertaken until after Congress shall deliberate (inaudible) and authorize such a mission."
So I'll go to the flip side: Can Congress stop a war?
ROBERTS: Well, that's, of course, a difficult question.
Now Congress has always exercised the power of the purse with respect to activities of that sort and regulated the funding for that type of activity. And that's, of course, always been the core of Congress' authority.
But the question to actually terminate hostilities that the executive has determined to initiate either with the authorization of Congress or a situation of congressional silence or acquiescence, to go back to the Youngstown decision, the issue of what Congress' authorities are to terminate, short of exercising its power with respect to the purse, those are unsettled, and I think have to be addressed in the context of a particular case.
And the memo to which you refer, again, I was a lawyer for the executive and any cautious lawyer for the executive, without regard to the administration, would be on the alert for any type of suggestion that there are limits on that power.
LEAHY: To show you how cautious you were, you wrote, "There's no clear line separating what the president may do on his own and that requires a formal declaration of war."
But you conclude the exercise of presidential power in connection with the Grenada incident fell comfortably on the legitimate side of the line.
LEAHY: What's a situation that falls on the illegitimate side of the line where a declaration of war would be needed?
ROBERTS: Well, you take the history, anyway -- if you have a situation like the Korean War taking place without a declaration of war, the war in Vietnam taking place without a declaration of war, I think it's difficult to articulate in the abstract where the line would be, other than the fact that throughout our history, there have been those significant types of engagements that I suspect all of the people involved in them thought we're at war that did not have a congressional declaration of war.
So, again, where the line is drawn or how it would be drawn in a particular case or even what the role of the courts would be -- as you know, in these areas, there's often an initial dispute, "Is this a judiciable question that the court should entertain in the case of litigation and a conflict between the executive and legislative concerning something like whether a declaration of war was required?" that would be a question the court should to address before the reaching the merits.
LEAHY: Let me switch gears again.
Senator Grassley is not here right now, and Senator Specter and I have worked for several years to shed some light on the FISA court, the foreign intelligence court.
A lot of Americans are affected by their decisions. Most Americans don't know how it works, don't know whether their civil liberties are being curtailed or violated. We added some sunshine provision. The attorney general now submits a biannual report to four congressional committees, details how many people are the target of electronic surveillance and so on. It's still inadequate in the fact it doesn't get public reporting.
If you're confirmed as chief justice, you're the overseer of the FISA court. Most people don't even look at that role of the chief justice. I think it's probably one of the most important ones if you're going to talk about the liberties and how they're protected.
Would you be willing to work with members of Congress to add more transparency, or do you believe there's enough transparency in the work of the FISA court now?
ROBERTS: Senator, you said you think this is something most Americans aren't aware of. I suggest probably most judges aren't aware of...
LEAHY: Well, that's probably so.
ROBERTS: It is a specialized court. I will tell you when I became aware of it, it's a surprising institution. It's an unusual set-up.
LEAHY: Certainly different than what we think in our system of...
ROBERTS: That was exactly my reaction.
On the other hand, Congress, in setting up the court, obviously concluded there were reasons to do it that way.
I was asked a question about appointing the judges to it and my response was that, given the unusual nature of it -- very unusual nature, given the usual traditions of judicial processes -- that the people appointed to it have to be of the highest quality, undoubted commitment to all the basic principles, both of the need for the court and the need to protect civil liberties.
That I think is very important.
Beyond that, I would just tell you I don't know enough about the operations of the court at this point and how it functions to be able to make any representations about what I would do, other than that I certainly appreciate that it's an unusual establishment and in many respects doesn't have the sorts of protections that the normal judicial process has, and that I would be sensitive to those concerns.
LEAHY: And I'd hope -- my time is up. I apologize. But I'd hope that, if you are confirmed, that you might be willing -- and I think Senators Grassley, Specter, and myself could put together some suggestions -- at least keep an open mind on it.
ROBERTS: Certainly, Senator.
LEAHY: Because in an electronic age, in a digital age when more and more information is being pulled in on Americans that we sometimes don't even know about, it is frightening. We want security, but we want to be like -- as Benjamin Franklin said, a people who'd give up their liberties for security deserve neither. Thank you.
Thank you, Mr. Chairman.
SPECTER: Thank you, Senator Leahy.
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