The Naked Constitution Podcast: The Judiciary

My latest podcast is now live on Ricochet!  This week, we’re discussing “the least dangerous branch.” And yet, we find ourselves wondering how the federal judiciary has oh-so-meekly taken over the duties of the other two branches of government. Cato Scholar and veteran court-watcher Walter Olson explains the perils of judicial activism by unelected judges. But Clark Neilly of the Institute for Justice warns that “judicial abdication” can be just as bad – with examples of (ouch!) forced sterilization laws. Throw in some background about the Founders’ fear of judges “construing” the Constitution and you get a cracking good discussion of the real meaning of Article III.

My book, The Naked Constitution, is now available! Order it here.

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Oyez! Supreme Court Preview

The Supreme Court kicked off the October Term yesterday – the first Monday of October.  Here’s a quick roundup of the big issues up before the Court.

Affirmative action:The court will revisit its 2003 ruling (Grutter v. Bollinger) which upheld certain affirmative-action programs at universities.  In the new case, Fisher v. University of Texas, the Court will consider a white student’s challenge to the admissions policy at the UT Austin which allows race to trump other merit-based factors.  As our own John Yoo recently advocated, the Court should overturn Grutter as a “blemish” on our constitutional law.

Gay Marriage: It’s considered likely that the Court will address gay marriage, although the Justices have not made an announcement yet.  Actually, there are two distinct issues: (1) can Congress define “marriage” for federal law purposes; and (2) can states define marriage as the union of one man and one woman?  The first issue relates to the Defense of Marriage Act (DOMA). There is at least a decent Tenth Amendment argument that DOMA is unconstitutional. If the federal government wants to make certain benefits contingent on being married, so be it, but the feds have to defer to the states to supply the definition of marriage.   Issue (2), which relates to California Prop 8, presents a much greater threat to our constitutional order.  The liberal argument is that the Constitution requires state recognition of same-sex marriage and, therefore, divests states of their historic power over the definition of marriage.  According to the liberal spin, as the Washington Post’s Robert Barnes reports in typically unbiased fashion, the question is “whether society’s growing acceptance of same-sex unions warrants constitutional protection.”  I guess society’s “growing acceptance” is somehow reflected by the 37 states have passed laws defining marriage as limited to a union between one man and one woman.  As I have said before, the liberal argument here is pure judicial activism.

ObamaCare, Part II?  There is at least a possibility that the Affordable Care Act will come back to the Court this term.  The Court is considering a petition by Liberty University to reconsider the University’s challenge to ACA’semployermandate on religious freedom grounds but also as exceeding Congress’s power.  Although the Court often summarily rejects such petitions, it has kept this one under advisement all summer, and now has asked the Obama administration to respond – raising the likelihood that the Court will agree to revisit this law.

Takings.  The case is Arkansas Game and Fish Comm. v. United States.  I described this in an earlier post: the issue is whether government regulations that impose recurring flood invasions constitute a “taking” within the meaning of the Takings Clause, even if the flooding isn’t permanent.

Voting rights.Overlapping with the recent Voter ID controversies are a series of cases challenging Section 5 of the civil rights act, which requires states and localities with a history of discrimination to get federal approval of any changes in their voting laws. The Supreme Court, in a 2009 ruling expressed concern about “serious constitutional questions raised by Section 5’s intrusion on state sovereignty.”  Clearly this is the case for state and local elections.  But even for federal elections, the Constitution gives states the power to define “the times, places, and manner” of choosing congressmen.  Granted Congress has the power to amend such regulations, but that’s very different from forcing states to ask Congress’s permission before changing their voting laws.

Alien Torts.  On Monday, the Court heard argument on the scope of the Alien Tort Statute (ATS), a venerable 1798 law that allows aliens to bring lawsuits in federal court for violations “of the law of nations or a treaty of the United States.”  As far as we know it was enacted to cover very minor gaps in the law, like the assault of a diplomat in the US, or piracy committed by Americans in international waters.  The law was virtually unused until the 1980s when it was revived as a nifty way to use American courts to pursue alleged human rights abusers.  In the new frontier, the international rights bar is arguing that the ATS gives courts jurisdiction over suits that have no connection to the US; that is, cases in which foreign plaintiffs sue foreign defendants over conduct that occurred outside of the US. The case is Kiobel v. Royal Dutch Petroleum, recently discussed on Law Talk.  In Monday’s argument, the Justices showed skepticism of the expansion of the ATS and their questions sought some principle to limit ATS.  Justice Sotomayor seemed inclined to endorse an interpretation put forth by the European Union in an amicus brief.  Fair enough: why shouldn’t the EU guide us on the proper interpretation of a 223 American law?

A Shoddy Attack on Originalism and Scalia

Veteran appellate judge Richard Posner recently took to the pages of The New Republic to trash – there’s no other word for it – the new book by Justice Antonin Scalia and writing guru Bryan Garner: Reading Law: The Interpretation of Legal Texts.

Posner’s critique generated exultation on the left – after all, here was Justice Scalia getting a public smack-down from a fellow conservative! Whether Posner can still be called a conservative – he recently refused the label in an interview with NPR’s Nina Tottenberg – his criticisms consistently miss the point of Scalia’s and Garner’s book. But, to be fair to Posner, what he lacks in the way of analytical skill, he more than makes up for in gratuitous ad hominem attacks.

Reading Law is a robust defense of “textualism,” i.e., that doctrine that judges must interpret statutes (and constitutions) to give effect to the meaning that the text reasonably conveyed at the time of its adoption. In the realm of constitutional law, this is also known as Originalism, or, more precisely, the “original public meaning” theory that I espouse in The Naked Constitution.  The theory is simple: constitutional provisions should be applied as they were understood by the public that ratified them. Textualism does not seek to divine the “legislative intent” from the self-serving statements made in the course of “legislative history” (committee reports, floor speeches, and the like). Rather, the point of textualism is that the legislators’ intent emerges from the text they adopted.

Posner takes a different view.  In short, he embraces “purposivism” – the idea that judges should apply statutes so as to give effect to their overriding purpose.  This method assumes that statutes have a single or dominant purpose, and that judges should be empowered to insert a purpose that is not clear from a fair reading of the text.

In his New Republic piece, Posner doesn’t try to defend his interpretive philosophy. Rather, he sets up a series of caricatures of Scalia’s philosophy. He begins with the straw man argument that a genuine textualist must never consult anything outside the text. Thus, although Posner agrees with Scalia and Garner that a sign outside a butcher’s shop reading “No dogs or other animals” does not mean that only canines or other domestic animals are excluded, he argues that that conclusion is “not right by virtue of anything textual” but rather by virtue of the meaning that would “come into a reasonable person’s mind.” Talk about a false dichotomy: the very essence of textualism is applying words as they would be understood by a “reasonable person.”

Textualism is straightforward, but not simple. Scalia and Garner never claim that it is always easy to read a statute, which is why they offer up 57 “canons” of interpretation.  Ah ha, says Posner: they don’t believe in the text, after all.  Again, Posner is conjuring up a false dichotomy.  The canons don’t supplant the text, but they are offered as presumptions – rebuttable presumptions – “about what an intelligently produced text conveys,” as the authors point out.  In Posner’s rather paranoid view, however, the canons “provide them with the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.”  The incoherence of this charge is stunning.  If Scalia’s goal is to generate “outcomes,” why on earth would he embrace textualism and canons of construction designed to limit a judge’s discretion?  As a staunch foe of abortion, Scalia could easily re-interpret the “living” Fourteenth Amendment to prohibit abortion.  Instead, Scalia favors an interpretation that would leave the issue to state legislatures, an “outcome” that would inevitably lead to legalized abortion in many Blue States.

Posner attacks Scalia for looking at the historical meaning of constitutional provisions when deciding the Second Amendment case, Heller v. District of Columbia: “Scalia is doing legislative history” he says, and therefore, once again, violating textualism. To the contrary, Scalia’s opinion contains a detailed linguistic analysis to determine what the text of the Second Amendment meant at the time of its adoption (a textualist approach), he did not rely on the “legislative history” of the Second Amendment. Posner’s mistake can hardly be an honest one; he knows what legislative history is.  But Posner has a bee in his bonnet about Heller; he says it is “erroneous,” that it is Scalia’s “most heavily criticized” opinion and – here’s the whopper – that Reading Law is nothing more than a response to the uproar over Heller.

The heart of Posner’s review is his attempt to “prove” that Scalia and Garner have mischaracterized the cases they cite. Although this is the part of the article that most delights the left, the paucity of Posner’s evidence — six cases out of the 600 cited by the authors – rather effectively demonstrates the petty nature of the entire article. In any event, Posner completely misses the point when he argues that the authors failed to give complete summaries of the six cases. Scalia and Garner never claim that they provide exhaustive summaries of the cases. Rather, they use the cases to illustrate particular applications of textualism, not to defend or denounce the ultimate decisions reached by the courts.

Posner also pounces on the book’s example of a sign that says “no person may bring a vehicle into the park.” Scalia and Garner conclude that the term “vehicle” would encompass ambulances since that is the most fair reading of the text. When the authors later point out that there may be other factors that mitigate the otherwise harsh result of the sign – e.g., there may be a separate statute exempting emergency vehicles from traffic rules, or the ambulance driver may claim the common law defense of necessity – Posner denounces this as another “retreat” from textualism. But no, the authors never waver in their opinion that the best reading of the text (the sign) is that ambulances are “vehicles.” But the reading of a single text may not dispose of a particular case. This is the mistake Posner makes again and again: every time Scalia and Garner mention anything other than ink on paper, he assumes that they have undermined their own thesis. Posner seems to have overlooked the fact that the book is about “reading law” not “deciding cases.” It offers guidance on how to interpret legal texts; it does not purport to explain how overlapping legal texts are to be reconciled, nor how a text is to be applied to the facts of a given case.

Posner’s errors have been exhaustively demolished by Ed Whelan of the Ethics in Public Policy Center (and NRO Bench Memos), and by Garner himself in a reply published in The New Republic.  But Posner is unrepentant, refusing to engage Whelan on a single point of substance, instead smearing him as the head of “an extreme conservative think tank preoccupied with homosexuality (which Whelan believes is destroying the American family), abortion, embryonic stem cell research, and other affronts to conservative theology.”  Well, there you have it.  How could a social conservative possibly say anything worthy of response?

But his attack on Whelan may do more to reveal Posner’s real motivation in denouncing Reading Law than any of his substantive arguments.  Posner is angry – about something. His review is dripping with vitriol: Scalia and Garner follow a “pattern of equivocation,” they “omit contrary evidence,” their interpretive method is “hopeless,” they are disingenuous, etc.   Posner, once upon a time a darling of conservatives, has recanted his conservatism, as noted above.  Perhaps his estrangement from conservatism has led him to lash out at those who still stand by their principles.  Whatever the reason for his latest attack, it is, alas, a sad spectacle to see a federal judge so outraged by the modest proposition that courts ought to be faithful to statutory text.

Judge: No Constitutional Right to Gay Marriage

Newsflash – a Court has actually decided to apply the Constitution instead of re-writing it!

A federal judge in Hawaii (of all places) has declared that same-sex couples do not have a constitutional right to get married.   In a 117-page ruling, Senior U.S. District Judge Alan C. Kay held that the issue was controlled by the Supreme Court’s summary ruling in the 1972 case of Baker v. Nelson (a case that Vaughn Walker side-stepped in his activist decision striking down Prop 8). (h/t ScotusBlog)

Significantly, the judge went on to hold that, even if Baker didn’t control, a state ban on gay marriages satisfies the minimum level of constitutional analysis.  Because there is no “fundamental right” to gay marriage, there is no need to apply “strict scrutiny” to laws restricting such marriage; rather, such laws need only satisfy the “rational basis” test.   Ultimately, Judge Kay quite rightly concluded that the issue should be decided by elected representatives, not unelected judges.

“If the traditional institution of marriage is to be restructured,” the judge wrote, “it should be done by a democratically-elected legislature or the people through a constitutional amendment, not through judicial legislation that would inappropriately preempt democratic deliberation regarding whether or not to authorize same-sex marriage.”

Judge Kay is not a household name; but he is a Reagan appointee who has been quietly toiling away all these years.  At the risk of repeating myself, judicial appointments matter.  A lot.

The Continuing Carnage of Planned Parenthood v Casey

Although Roe v Wade is the Supreme Court’s original sin, it is Planned Parenthood v. Casey (with a plurality opinion written by 3 spineless Republican appointees) that continues to be used by Courts to continue to thwart all democratic efforts to protect the unborn. Yesterday, the Ninth Circus, er, Circuit, blocked, at least temporarily, an Arizona law that would have prevented abortions of children after 20 weeks of pregnancy, and even then with exceptions for medical emergencies. The problem with the law is that it might infringe on the limits set in Planned Parenthood v. Casey, which forbids any “burden”on the Roe abortion right before viability (not every baby is viable at 20 weeks). Or at least that’s the position of the ACLU, which remains a steadfast defender of the civil liberties of every person lucky enough to make it out of the womb alive. Back in April, the Oklahoma Supreme Court denied the state’s voters an opportunity to vote on a proposed ballot initiative (Question 761) that would change the state constitution to re-define “person” as “any human being from the beginning of the biological development of that human being to natural death.” The problem, of course, is that the measure would mean that fetuses have a right to life under the Due Process Clause, and that would contradict (drumroll, please) Planned Parenthood v. Casey. Supporters of the Oklahoma law recently petitioned the Supreme Court for review (the petition is here). And I assume that supporters of the Arizona law will eventually need to seek Supreme Court relief from the Ninth Circuit’s final ruling. Here’s hoping that the Court accepts one or both cases, and that the Justices have the fortitude (are you listening, Mr. Chief Justice?) to revisit the wretched precedent of Casey.

What’s at Stake in November: A Look at Obama’s Judges

The winner of the November election will have the opportunity to appoint a huge chunk of the federal judiciary, as I recently observed.  If the prospect of Obama calling the shots isn’t frightening enough, take a look at some his judicial picks so far.  A second-term Obama, freed from re-election concerns, is likely to go even more radical in his nominations (although he may need to recruit his judges from the Cuba to get further left).

At the Supreme Court, his very first pick, remember, was Sonia Sotomayor who famously said “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Sotomayor and Elena Kagan have predictably moved in lock-step with the White House.

As for the lower courts, well, there’s David Hamilton, who, as I recently mentioned, held that praying to “Jesus” (by state legislators) would violate the Establishment Clause, but that praying to “Allah” would not.   Obama got him a Circuit Court seat, in which he has voted to forbid a high school from using a church to hold graduation ceremonies.

Then there’s Goodwin Liu, a radical Berkeley professor, for whom the values of “free enterprise,” “private ownership of property,” and “limited government” are really code words for those who are anti-environment, anti-labor and anti-consumer protections.” Liu is an outspoken proponent of re-interpreting the “Living Constitution” to guarantee welfare rights.

Or Edward Chen, successfully nominated for the United States District Court for the Northern District of California.  Chen said the singing of “America the Beautiful” at a funeral was an appeal to patriotism that sparked “feelings of ambivalence and cynicism” in him. Like Obama, Chen thinks that the vacuous concept of “empathy” is the most important quality of a judge.

Obama was not successful, so far, with Louis Butler, a former member of the Wisconsin Supreme Court who John Fund aptly called “the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices.”  So radical were his opinions that Wisconsin’s voters in April 2008 took the extraordinary step of defeating Butler’s bid to remain on the state supreme court.

The judges nominated by Mitt Romney could not conceivably be worse than the sort of hard-left jurists favored by Obama.  In fact, there is reason to believe that his nominations will be considerably better – I will post soon about Romney’s record on the judiciary.

John Roberts and the Legitimacy of the Court

In Jeffrey Rosen’s latest love letter to the Chief Justice (there have been 3 0r 4 already), he gushes that Roberts’ ObamaCare decision “revealed the chief justice as a master strategist with a nuanced concern for institutional integrity.” Presumably his “masterful” strategy included writing an opinion whose reasoning was so convoluted that it attracted not one other justice (although the 4 liberals concurred in the result). How diabolically clever!

The conventional wisdom now is that Roberts sacrificed his right-wing inclinations to preserve the “institutional legitimacy” of the Court. Suddenly “institutional legitimacy” is an independent doctrine in constitutional law — according to Rosen, it is every bit as important as the text of the Constitution itself: “Justices have broad discretion to pick and choose among competing legal arguments based on a range of factors—including concerns about text, history, precedent, or institutional legitimacy.” Sure, the Framers might have written X, but if you think Y sounds more “legitimate,” then go with Y.

I can’t imagine this sort of nonsense will appeal to many people outside the Beltway. The legitimacy of an institution depends first and foremost on whether it does its job. The job of the Supreme Court is to uphold the Constitution, and thus, to serve as a check against the excesses of Congress. I sincerely hope that Roberts writes a decision next year upholding the Defense of Marriage Act (DOMA) in the name of “institutional legitimacy.”  Don’t hold your breath for more Rosen love letters.

As David Bernstein writes at Volokh: “A Chief Justice getting praise from commenters like Rosen for avoiding getting the Court into a political tangle by strategically changing his vote will in the long-term cause the Court’s legitimacy to suffer.”

What’s at Stake in 2012: The Lower Courts

As I wrote earlier, the outcome of the 2012 election is likely to set the future course of the Supreme Court for a decade or more.   A second-term Obama will have the opportunity to turn the Court decisively to the left.  But there’s more to the judiciary than the Supreme Court.  Most cases don’t make it to the high court.  As a result the lower federal courts, especially the appellate (“circuit”) courts end up making much of the law that we live with.

There are 874 federal judgeships in total.  So far, Obama has appointed 126 judges, but given a second term the number will no doubt be closer to W’s total of 328 judges or even Clinton’s 379 (good statistics at the US Courts website).

On inauguration day 2013, the next president will start out with 92 judicial vacancies to fill (assuming that nobody else gets confirmed between now and election day).  This includes three, count ‘em, three, vacancies on the all-important DC Circuit: the court that hears most appeals from the decisions of federal agencies and which is very often the warm-up bench for future SCOTUS justices.   The ability to appoint three new judges to the DC Circuit will help determine whether the so-called “independent agencies” will continue to operate as a rogue fourth branch of government without judicial check.

Incidentally, the high number of judicial vacancies is not necessarily due to Republican “obstructionism” (contrary to the mainstream media), but is at least partly due to the administration’s incompetence.  As Ed Whelan of NRO Bench Memos has pointed out, Obama let two years go by without nominating anyone to the then-existing two open slots on the DC Circuit.  Well, now there are three open slots.  Whose fault is that?  Moreover, there have been a “significant number” of Obama’s potential judicial nominees who couldn’t even get a thumbs-up from the strongly liberal American Bar Association.  But given four more years, Obama will eventually get his way.

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