Historian-turned-politician Sen. Ben Sasse (NE) likes a good historical coincidence. And last week, on April 26, he played his own part in just such an everything-old-is-new again moment: the day he invoked the late Justice Scalia’s famed dissent in Morrison v. Olson to vote against a bill intended to insulate special counsel Robert Mueller from dismissal by the President without good cause marked the 30th anniversary of the Supreme Court’s momentous oral argument in Morrison about… limiting the power of the President to dismiss an independent counsel without good cause.

The Morrison argument had it all: The pardon power! An early Scalia-smackdown for using legislative history! A prelude to two decades of Scalia vs. Stevens on originalist evidence! The last case a petitioner argued for herself! And, even, investigating Russia!  So while the rest of the country debates the merits of the special counsel investigation and related legislation, here are seven things to watch for as you re-listen to Morrison argument this weekend (as, of course, you will). 

But first: a refresher about what Morrison was all about. I touched on this in a recent #CourtingHistory thread on Twitter (where I share mostly-daily constitutional trivia), but here’s the decidedly Twitter-unfriendly-version of the story.

Before the case became a one-word synonym for the debate over “separation of powers,” it was about a purported prevarication. In 1982, a House committee issued a subpoena to EPA Administrator Anne Gorsuch—yes, that Gorsuch, the mother of the newest Associate Justice, Neil M. Gorsuch—for documents related to the EPA’s administration of the “Superfund” program for cleaning up hazardous waste sites. The House committee was investigating whether the Superfund program had been improperly politicized.

At the time, Theodore “Ted” Olson—who would later go on to serve as the George W. Bush’s Solicitor General—served as the head of the Justice Department’s Office of Legal Counsel, sort of the premier “brain trust” for the Department. Olson recommended that the President not disclose certain documents, written by EPA lawyers, because they reflected the deliberative process leading to an enforcement decision and thus were subject to executive privilege. President Reagan ordered Administrator Gorsuch not to comply with the House subpoena, and the House cited her for contempt. Eventually, President Reagan relented, the documents were turned over to the House, and Administrator Gorsuch (then named Anne Burford) resigned in the turmoil.

Among the documents that were ultimately turned over to the House were some notes suggesting that certain EPA lawyers thought that the Superfund process had been unlawfully politicized. Some members of the House were incensed that the President had ever claimed executive privilege for those notes, and called on Olson to testify about his role in reviewing and recommending that the President withhold the documents. After he testified, certain House members believed that Olson hadn't been forthright in his testimony and demanded the Attorney General appoint an independent counsel to investigate if he’d lied under oath, pursuant to an independent counsel statute passed in the wake of the Watergate scandal, when President Nixon ordered Special Prosecutor Archibald Cox to be fired in 1973. The independent counsel statute, finally passed in 1978, gave the independent counsel the full investigative and prosecutorial powers of the Justice Department but at the same time significantly curtailed executive oversight of an independent counsel, and prohibited the counsel’s removal except for “cause.”

After the referral from the House, the Attorney General appointed Alexia Morrison—a former federal prosecutor—as independent counsel to investigate Olson’s testimony. A fierce proponent of the independent counsel role, during the course of her investigation, she argued that “the independent counsel is…like the emergency medical team that arrives on the scene when the other systems that are in place are unable to handle the situation.”

But Olson challenged the independent counsel statute as an unconstitutional violation of “separation of powers,” arguing that the Constitution vests the Executive Branch with core prosecutorial functions—and Congress cannot insulate a federal prosecutor from oversight by the President, or parcel out some of the prosecutorial function to the Judicial Branch, as the independent counsel statute allegedly did by giving a special court the authority to define the independent counsel’s jurisdiction.

And that brings us to the oral argument, which took place on April 26, 1988—and (at least) seven things to look out for when you re-listen.

1. I Am My Own Lawyer

The argument was also unusual because Alexia Morrison, the independent counsel investigating Ted Olson, was not only the named petitioner in the case—she also argued the case herself. Josh Blackman has noted that Morrison is likely the last Supreme Court petitioner to argue her own case—with the possible exception in the upcoming Supreme Court Term case of Frank v. Gaos, where longtime appellate advocate and petitioner Ted Frank may, indeed, argue his own case on class action settlements.

2. Talkative Justices

Speaking of Morrison, she starts off her argument with a remarkable nearly-four-minute, uninterrupted monologue before Justice Rehnquist asks the first question. For those who are more familiar with contemporary Supreme Court arguments, this uninterrupted time for an advocate is rather striking. Since the 1990s, all of the Justices have become markedly more talkative, according to a recent study of the number of words spoken at every oral argument since 1960—as overall argument time has dropped, the amount of words spoken by Justices has doubled. Today, the number of words spoken by the Justices themselves is closing in on the number of words spoken by the advocates.

Although most of the Justices were pretty quiet during oral argument, two Justices stood out as particularly talkative and engaged. Those two Justices were, as you might have guessed, two Justices who were also very active in the 1990s and 2000s: Justices Scalia and Stevens. Justice Scalia—who had only been on the Court for about a year and a half—dominated the oral argument. Although Justice John Paul Stevens spoke the most number of times—26—Justice Scalia’s word count for the 17 times he spoke dwarfed Justice Stevens’s. Justice Scalia spoke roughly 819 word during argument compared to Justice Stevens’s 683. Even the third most talkative justice—Chief Justice William Rehnquist—only spoke 14 times for a total of 266 words (excluding the times he spoke in his “traffic control” role as Chief Justice). The other most prolific justices included Justice Sandra Day O’Connor, who spoke 12 times for a total of 275 words; and Byron White, who spoke 16 times for a total of 224 words. The rest spoke just a few times and just a few words—except for Justice Brennan, who participated in the case didn’t speak at argument.

But would Justice Scalia have seemed particularly talkative for those listening to the oral argument in 1988? Probably: this was a longer argument than usual, but even so, Justice Scalia’s 800+ words in the Morrison oral argument account for a little over a third of the average number of words for all Justices combined for oral arguments in the 1980s.

3. Kennedy’s Mystery Recusal

One voice you won’t hear during argument: Justice Anthony Kennedy, the Court’s newest Justice, who recused for reasons that are still unclear. A New York Times story at the time suggested Kennedy perhaps recused because Attorney General Ed Meese was heavily involved in Justice Kennedy’s selection as a nominee and was himself subject to an independent counsel investigation. Alternatively, the Times speculated that Kennedy recused because, as a private practice lawyer in Sacramento, he performed legal work for then-Governor Reagan.

But there might be a simpler explanation for why Kennedy didn’t participate, suggested years later by Morrison herself: he’d just recently joined the Court, and perhaps he didn’t feel comfortable preparing for argument in time (I’m not sure I believe Kennedy just didn’t think he could be ready for argument in time, but if so, hey, refusing to take the exam so you don’t have to cram is a perk of Justice-hood).

4. Originalism’s Rise (plus: Justice Stevens is Still Confused)

An exchange between Justice Stevens and Olson’s counsel, Thomas S. Martin, provides an interesting glimpse into the historical evidence arguments that would come to mark much of the Court’s jurisprudence after Justice Scalia joined the bench. In support of his argument that the Framers vestedthe prosecutorial function in the Executive Branch, Morrison cited the post-ratification practices of the Executive Branch. Stevens criticized Martin for “rely[ing] on practice subsequent to the adoption of the Constitution rather than the contemporary practice for your position.” For Stevens, relevant historical evidence would have been the extent to which “the chief executive of the colonies or the crown of England” exercised the “core” prosecutorial function. Stevens argued to Martin that prior to the Constitution, justices of the peace, grand juries, and private prosecutions were quite common examples of prosecution outside of executive control.

Martin pushed back: “the Framers decided not to follow” the pre-adoption practices of the colonies and the Crown “which often merged the various kinds of powers in the way [Justice Stevens] mentioned”; instead “[t]hey decided on a separation of powers and decided not to follow the merged-powers approach.

One gets the sense that the advocates and Justices were feeling around for how, if rather clumsily, to incorporate Framing-era historical evidence into their arguments, given the rising profile of the judicial philosophy. Originalist and historical arguments are a much more frequent part of contemporary Supreme Court arguments—what was a “marginal theory” when originalist scholar John McGinnis was in law school (graduating just five years before the Morrison decision) is now “becoming the academic theory to beat.”

Indeed, Justice Scalia’s now-famous one-man originalist dissent has come to mark the turning of the tide at the Court, the ascendance of the use of originalism in constitutional cases. Stevens and Scalia would go on to tangle over originalism for decades following Morrison, until they would eventually trade places: 20 years after Scalia’s lone dissent in Morrison, Justice Scalia authored the Court’s majority opinion in District of Columbia v. Heller, relying on extensive evidence of the original public meaning of the Second Amendment to hold that the Amendment protects an individual right to own a firearm. This time, Justice Stevens was the dissenter. Stevens attempted to attack the majority opinion on what it seems he thought were originalist grounds, invoking historical evidence that at least some of the Framers didn’t intend the Amendment to protect an individual right. But Stevens struggled with how to use such evidence and which evidence to use; originalism simply wasn’t his native tongue—indeed he relied on what Josh Blackman has called the “long-discredited” “original-intentions” version of originalism

5. Begone, Legislative History!

Two exchanges between Justice Scalia and Olson’s counsel, Martin, were a “preview of coming attractions” for something many advocates would face in the coming decades: a ready retort from Justice Scalia whenever counsel invokes legislative history is invoked. Throughout the argument, Martin repeatedly invoked legislative history in support of his constitutional argument, until Justice Scalia jumped in to criticize Martin’s use of legislative history. “Do you want to read the legislative history or do you want to read the text?” When Martin continued to invoke legislative history after Scalia’s first rebuke, he triggered Scalia’s ire a second time with a much longer colloquy about the irrelevance of legislative history. I am not sure how prepared Martin was for Scalia’s tongue-lashing for using legislative history in 1988—maybe he even worried he lost but by the time Justice Scalia passed away, it was common knowledge among the Supreme Court Bar that an advocate best prepare well for a Scalia spiel when invoking legislative history. And the debate over the use of legislative history continues to rage at the Supreme Court today.

6. Pardon Me, But Could You Say That Again?

In arguing that the independent counsel statute didn’t violate separation of powers principles, Morrison made a rather provocative argument: “the President retains the total ability to determine the final outcome of the process by his exercise of the pardon power.”

Time will tell whether the contemporary defenders of special counsel immunity to presidential oversight will invoke Morrison’s pardon-power argument. But it certainly seems that the tide has turned against touting the President’s pardon power as a check on the possibility of rogue prosecutions.

7. How About Investigating Russia, Eh, Comrade?

Given the scope of special counsel Robert Mueller’s investigation today—Russian interference in the election—Justice Stevens’s most retroactively-amusing question was about the statutory role of courts in defining the prosecutor’s jurisdiction: “Do you contend that the definition of jurisdiction in this case was unconstitutional in any way? There may be some other cases the court might define the jurisdiction in a way that would be totally intolerable, to go investigate the Soviet Union or something.”

The Post-Script

We all know how Morrison v. Olson ends: the independent counsel statute was upheld in a 7-1 vote, with Justice Scalia as the lone dissenter, in one of his most famous (and one of his own favorite) dissents, with one of his most famous lines: “This wolf comes as a wolf.”

But what happened after Morrison v. Olson, when the road was paved clear for Morrison to continue her investigation of Ted Olson?

First, even though the entire investigation took nearly three years, Ted Olson was never charged with anything. Morrison herself explained why in 1989: because Olson never lied to Congress! After 3 years of investigating, with a side-trek to the Supreme Court, she concluded everything he said in his testimony was “literally true”

Second, the independent counsel statute at issue is no longer on the books—because Congress didn't revive it when it automatically expired in 1999. It was Democratic congressmen who triggered the independent counsel statute to investigate Ted Olson, and it was Republican congressmen who used the same independent counsel to trigger Ken Starr’s 1994 investigation of President Clinton, leading to his eventual impeachment by the House in 1998 and acquittal by the Senate in 1999. Not to mention the myriad other investigations of both government officials in both parties over the years. So when it came time to renew the independent counsel statute, both parties had tired of the tit for tat, and let the independent counsel statute die a quiet death. But nearly two decades later, many of the same core questions about separation of powers that were being debated in the Morrison oral argument are now being debated once again in Congress.

Footnotes

  • 1 - The second, independent exchange where Justice Scalia re-directed Martin away from reliance on legislative history: Antonin Scalia: Mr. Martin, I doubt whether we are going to use the legislative history to cause language which on its face can be interpreted in a constitutional fashion to be interpreted in an unconstitutional fashion. I mean, the chances that we would do that are rather slim, don't you think? Thomas S. Martin: It certainly is true, but it is also true that the language cannot be interpreted in a way wholly inconsistent with the legislative history or to defeat the legislative purpose, as the Schor case said. But let me look at the language. Antonin Scalia: Try us, if the difference is between constitutionality and unconstitutionality. Do you know of any case where this Court said, gee, on its face this statute could be constitutional, but the legislative history requires us to interpret it in such a fashion that it is unconstitutional? Can you give me one case where we have done that?