New Minnesota Supreme Court Justice Dave Stras: An End to the Pawlenty Four?
Tomorrow Justice David Stras begins his new job as Minnesota Supreme Court Justice. I thought it appropriate to present my view of the makeup of the court and how the change may affect the court’s direction.
The defense bar (and those for whom we fight) has endured for the last four years the “Pawlenty Four” (“P4”) – a bloc of conservative justices carrying the majority and appointed by the lame-duck governor. Until recently, the P4 took the majority in several close cases. In a number of cases, including State v. Netland (2009), Laase v. 2007 Chevrolet Tahoe, and State v. Peck (2009), the minority wrote particularly scathing dissents.
Last month the Minnesota Supreme Court voted 4-3 in Governor Pawlenty’s unallotment case. The governor lost when retiring Chief Justice Magnuson seemingly switched sides and went against the governor. This could have indicated a “shift” in the Chief Justice’s stance, and provided some hope that the Court would perhaps return to a less activist role in Minnesota. Unfortunately, Chief Justice Magnuson had announced he was retiring earlier this year.
After the unallotment case, the governor named Justice Magnuson’s replacement. He elevated Justice Gildea – who wrote the unallotment dissent – to Chief Justice, and appointed David Stras to fill the new vacancy. Professor Stras, a young law school professor, had written an Amicus Curiae (“Friend of the court”) supporting Pawlenty in the unallotment case.
Most court observers believe Pawlenty’s new appointments will have no effect on the court’s conservative majority. William Mitchell College of Law Professor Peter Knapp believes the appointments signal "no dramatic change in direction of the court." Pawlenty's picks keep high court tilting right. New justice and chief sided with governor's solo-handed budget cuts, the DFL points out. (Star Tribune).
I don't agree.
Professor Stras served as law clerk to conservative U.S. Supreme Court Justice Clarence Thomas and serves on the executive committee of the conservative Federalist Society.
Stras said he believes “the role of judges is a limited one, safeguarding liberty and protecting the rights of all citizens.” Reporters asked whether he shares Thomas’s philosophy of the law. Stras called Thomas ‘my mentor. ... But we have differences in our approach.’”
Reporters and court observers questioned how to interpret Stras’ comment. Stras suggested that review of his “scholarly papers” may provide some insight.
So that’s exactly what I did.
Stras said he is particularly proud of an article he spent years researching, challenging former U.S. Supreme Court Justice Pierce Butler's reputation as a one-dimensional conservative by citing his pro-defendant rulings. So that’s where I started.
In Pierce Butler: A Supreme Technician, Vanderbilt Law Review, vol 62 (2009), Stras characterizes Butler as having “surprisingly pro-defendant criminal rights positions.” P. 697. In attempting to debunk Butler’s reputation as conservative, he portrays Butler’s views as “liberal” in criminal cases but conservative on economic issues. See FN183. He thoughtfully explains that Butler broadly construed the Fourth Amendment, in defense of individual liberties. P. 722, and applies this same ideology to defendant’s Sixth Amendment rights. P. 723.
Stras noted that “Justice Butler was a ‘stickler for the rights of criminals,’” citing Chief Justice Hughes. P. 723. After analyzing this article, Stras’ thesis is clear: He makes a scholarly case that carefully debunks Justice Butler’s reputation as conservative when it comes to criminal law issues.
One quote is particularly telling:
As a Supreme Court Justice, Butler’s jurisprudence was deceptively nuanced. Those who categorize him merely as one of the so-called “Four Horsemen of the Apocalypse” fail to give him credit for the intricacy and sophistication with which he approached constitutional questions. To be sure, Butler often took positions that were “favorable toward constitutional protection of economic liberties through judicial restriction of government action.” But it is far too simplistic to assert, as some commentators have, that Butler was the “epitome of ultra-conservativism” or that he was “insensitive to matters of civil liberties.” To the extent that labels are helpful in describing Butler, previous commentators have largely mischaracterized his jurisprudence by widely labeling him as a “conservative.” For example, Butler took stereotypically libertarian (or even liberal) positions in cases involving the Fourth Amendment and the rights of criminal defendants.
P. 717-18 (footnotes omitted).
Does this mean that Stras, despite being appointed to act as a “conservative” justice on a “conservative” court, may actually be a wild card? Is it possible that the P4 could suddenly become the “P3" and end up dissenting in upcoming cases penned by Stras himself? It’s too soon to tell, but based on my research, I don’t see Stras as the type of justice who would indubitably fall in line with the other Pawlenty appointees.
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