From left, Professor Kate Shaw, Miguel Estrada, Dean Matthew Diller, and Paul Smith
Prominent Supreme Court litigators Miguel Estrada and Paul Smith, and journalist, author, and legal analyst Jeffrey Toobin engaged in a lively discussion at Cardozo Law on March 11, 2014, as they discussed the Roberts Court. Kate Shaw, Assistant Professor at Cardozo, moderated a panel that touched on the Windsor Supreme Court case, Justice Kennedy's opinions, affirmative action, Obamacare, and the repercussions of the Shelby County decision.
The guests cut to the heart of the Roberts Court, and in a few instances critiqued the Justices themselves, while maintaining their respect. Estrada and Smith have both argued multiple cases before the Court, and Toobin's experience analyzing Court decisions was apparent. He said that the Shelby County decision created a new legal theory for laws regulating voting, and Estrada and Smith carefully dissected the meaning of the opinion. Toobin declared Justice Kennedy's opinions political and eccentric. Estrada pushed back, having been a law clerk for Justice Kennedy, saying that Kennedy is not easy to pin down because he has no singular methodology for deciding cases. Smith agreed that Kennedy's opinions were principled and guided by strong views that made it a challenge when building a brief for argument.
Professor Shaw is no stranger to the Court, having served as a clerk to Justice John Paul Stevens. At one point in the evening, she asked Toobin to revisit a critique he wrote for The New Yorker about Justice Clarence Thomas, regarding him not having asked a question during eight years of oral arguments. Toobin responded by saying that the Justice's silence was an insult to the American people. Estrada countered that having argued many cases in front of the Court, he found Thomas to be highly engaged, frequently nodding or making a comment to a fellow Justice. Smith agreed that Justice Thomas seems engaged, to which Toobin responded, "isn't it pathetic that we are sitting here saying a Supreme Court Justice is engaged because he nods his head once in awhile."
The panel focused on Roberts' impact on affirmative action, in both his questions in oral argument and his writings for the Court. Professor Shaw asked if the Chief Justice was attempting to move the Court into a path where any consideration of race by the government would be unconstitutional. Toobin responded that every Chief Justice has a project, and "Roberts' project is to make a color-blind legal system."
The audience of students, faculty, and others in the Cardozo community were thrilled to hear from such a distinguished panel. Estrada has handled a broad range of matters before the Supreme Court, arguing 20 cases, from intellectual property matters to limits on Congress' commerce clause powers. Smith has argued 15 Supreme Court cases, involving matters such as free speech, civil rights, and civil procedure. And Toobin provides legal anaysis on the nation's most provocative and high-profile cases for CNN and The New Yorker, and is the author of several critically acclaimed, best-selling books. The evening was introduced by Dean Matthew Diller, who played a key role in gathering the speakers for the event. Dean Diller attended law school with Toobin and Estrada, and in his comments he introduced his wife Kit, who was in moot court with Toobin.