A word on McCutcheon and the Court that Politics has Given Us

The U.S. Supreme court issued this morning its long-awaited opinion in McCutcheon v. Federal Election Commission.  The result surprised no one.  Under federal law, an individual could could give $5,200 to a candidate over a two-year election cycle, yet no more than $48,600 as a whole.  This meant than an individual could give to only 9 candidates in order to comply with the law.  Similarly, federal law imposed an "aggregate limit" of $74,600 on contributions to all political parties and political action committees.

No longer.

In a 5-4 decision, the Court struck down these "aggregate limits" as unconstitutional under the First Amendment.  In an opinion authored by Chief Justice Roberts, the Court could find no governmental interest that would justify these aggregate limits.

Commentators will have a lot to say about this case, even though there is very little new here.  We have seen this before.  The money line comes from Justice Breyer's dissent, right at the end:

The result, as I said at the outset, is a decision that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform.

Tell me if you haven't seen this before. The template could not be any clearer. This is Shelby County redux.  Remember how in Shelby County, the Court essentially substituted its views about racial discrimination in voting for the record compiled by Congress, a record with which it refused to engage?  Remember also how Shelby County bootstrapped arguments made in dictum in a prior case -- Namudno v. Holder -- and then passed them along as settled law?  Remember also how Shelby County overturned key precedents while pretending to do no such thing?  And finally, who could forget that Shelby County undermined -- nay, devastated -- the crown jewel of the civil rights movement?

Every time I read one of the doozies from the Roberts Court, I am reminded of Philip Kurland snarky yet paradoxically delightful Harvard foreword, published in 1964.  The closing is remarkable in many ways. Take a look:

The time has probably not yet come for an avowal that, in the field of public law, "judicial power" does not describe a different function but only a different forum and that the subject of constitutional law should be turned back to the political scientists. These students of political affairs realized, before lawyers did, that the true measure of the Court's work is quantitative and not qualitative. The Court will continue to play the role of the omniscient and strive toward omnipotence. And the law reviews will continue to play the game of evaluating the Court's work in light of the fictions of the law, legal reasoning, and legal history rather than deal with the realities of politics and statesmanship.

I wonder what Kurland -- the preeminent conservative critic of the Warren Court -- would say about the Roberts Court.  We have an idea.  When he testified during the Bork hearings, he said the following about stare decisis:  "But once the Court has rendered its decision, I think that the fact that it is based on erroneous reasoning or poor precedent or doctrine does not in any way make it an invalid, unconstitutional or reversible opinion for that reason." The Roberts majority has decidedly different ideas.

In the meantime, the law reviews will continue to pretend that there is a legal logic to all of this, and that the conservative majority is playing by the rules laid down.  But there is clearly a much different story at play.  This is not law as reasoned elaboration, but law as power.  This is Thrasymachus, not Socrates.

Whatever happened to judicial restraint and the famed countermajoritarian difficulty?

I am being facetious, of course.  Here's what happened: critics of the Warren Court won elections, took over the Court, and are now reaping the benefits.  Judicial restraint plays no role in this story.  Not that there's anything wrong with that.  But at least let's call it what it is.

This leaves me with two questions.  The first looks to the recent past, and particularly to the 2000 Election. For those who thought that Bush and Gore were one and the same, I wonder what they think about the Roberts Court.

The second question is for the Court's cheerleaders, those who find themselves today on the right side of 4.  Do they really believe that they are fighting, as Randy Barnett wrote, "to save the Constitution for our country?"  Do they really believe, as Jim Bopp wrote in a press release after the McCutcheon, that the ruling is "a great triumph for the First Amendment"?

Better question: had these great champions of the Constitution been around in 1964, what would they have said then?

We can only wonder.

Judicial Engagement as the New Activism:

Linda Greenhoiuse has a terrific piece in yesterday's opinionator about the conservative campaign for a more activist conservative judiciary.  She quotes from a report from the Institute for Justice, a libertarian group, entitled "Government Unchecked: The False Problem of 'Judicial Activism' and the Need for Judicial Engagement." According to this report, the usual dichotomy between judicial activism and judicial restraint is a false one: 

“Striking down unconstitutional laws and blocking illegitimate government actions is not activism; rather it is judicial engagement – enforcing limits on government power consistent with the text and purpose of the Constitution.”

To the Institute, this means that courts are not doing enough.  For example, 

Of the 15, 817 new laws enacted by Congress between 1954 and 2002, the Court only struck down 103 (two thirds of one percent)

Of the 1,006,649 laws enacted by state legislatures, the Court struck down only 452 (less than one twentieth of one percent) 

Of the 21,462 regulations enacted by the federal government between 1986 to 2006, the Court only struck down 121 (half of one percent)

Of the cases it considered between 1954 and 2010, the Court overturned earlier precedents in only two percent of the cases

From these numbers, the authors of the report conclude that "the image of rampant judicial activism is false."  Needless to say, this also means no more rationality review for economic regulations.

I know, I know.  We are all shocked.

I am not sure whether the authors intend for us to take their report seriously.  But I have a few questions: 

Could anyone -- and I do mean anyone -- possibly fall for this? (anyone, that is, other than the two members of the 11th Circuit panel that struck down the individual mandate in State of Florida v. United States Department of Health and Human Services? -- check out page 104).

How long until Senators Sessions and/or Hatch manage to incorporate the term "judicial engagement" into their attacks on progressive judicial nominees?

Is it no longer possible to have a real debate about the role of the courts in democratic society without playing these silly games?

Here they come again: the justices and affirmative action

Stop me if you have heard this one before: a student applies to an elite university and is denied admission.  Incidentally, admissions officials concede that they consider many different factors when making decisions, one of which is the race of the applicant.  The student who is denied admission then searches through the many applications only to discover that some Black and Latino applicants with lesser grades and/or test scores are granted admission to said university.  Alas, a federal case is born.

Abigail Fisher is only the latest in a long line of white applicants so aggrieved. It just so happens, however, that the U.S. Supreme Court might finally fall for the ruse once and for all.  Or in the words of Adam Liptak, "college diversity nears its last stand." 

This is ridiculous on too many levels. It is not terribly difficult to parse through the applicant pool and find admitted Black and Latino applicants who scored worse yet got in.  But it is also not terribly difficult to find in-state residents who scored worse than out-of-state residents yet got in, or mountain climbers, or sons and daughters of alumni, or applicants who can throw a football or hit a ball with a stick.  Somehow, we need an argument in order to differentiate the use of race from all these other factors.  But the justices -- or for that matter, critics of affirmative action -- have yet to offer one.

Here is what passes for a good argument nowadays, from anthropologist Peter Wood:

“The part of diversity that matters to me and a lot of academics is the intellectual diversity of the classroom. . . .  The pursuit of a genuine variety of opinions that are well thought through and well grounded is essential. But that has an off-and-on, hit-or-miss connection with ethnic and racial diversity.”

Here is another, from Yale law professor Peter H. Schuck: “The idea of racial and ethnic diversity altering the kind of conversation that goes on in the classroom is so overrated.” 

I happily concede either argument.  But note that similar things could be said about the use of any other factor considered by universities today, from the use of legacy or residency to extra points for doing extracurricular work or having elite athletic credentials.  

The point is this: the critics are make policy arguments, not constitutional ones.  So the issue here is whether the Constitution has anything to say about this question. If the Court's opinions are any indication, it appears that the answer is not as easy as one might think.

Here's what I would love to see in these opinions: a detailed analysis of the history of the 14th Amendment and the reasons why the Reconstruction Congress -- Bingham, Trumbull, and friends -- intended to bar the use of race by the state.  I think this is a tough argument to make, but I suppose it is possible.  Surely, I would expect Justice Thomas to at least pretend that such an argument exists.  Instead, all we get are silly and inane platitudes about the harmful effects of using racial factors.  

Hypocrisy is not becoming, much less by our resident philosopher kings.

Also, whatever happened to the norm of stare decisis?  I would expect the conservative justices to be particularly sensitive to this norm, and the notion that the public has a right to expect that the Court will not change its collective mind as the institution changes membership.  After all, remember the debate during the Kagan nomination about what makes a judge an activist.  The answer from the Republican leadership in the Senate, using the example of Justice Marshall, was that an activist judge is a judge that does not abide by established precedent.  They used the example of the death penalty and how Justice Marshall refused to accept these cases as settled law and instead continued to dissent in case after case. 

Could they really turn around this quickly and overturn Grutter, decided in 2003?

I still think that the case is still up for grabs.  The conventional wisdom is that the five conservative justices on the Court are prepared to take on Grutter.  Yet Justice Kennedy might not be quite so willing. His views on this question may be changing.  His recent concurring opinion in Parents Involved, for example, show a side of Justice Kennedy we had not seen before.  He even went as far as push back on the old conservative trope, Justice Harlan's dissent in Plessy. But to say that Justice Kennedy's views are evolving should not surprise anyone. Such is the lot of the super median.

In the end, he might ultimately save the Court from this embarrassment.

George Will and the Chief Justice On Lochner

This is why silly labels, such as "conservative" and "liberal," get me.  In yesterday's Washington Post, after apparently running out of things to write about, George Will defended the Court's decision in Lochner as "flow[ing] from bedrock American doctrine: The individual possesses inalienable rights — here, liberty of contract — that cannot be legislated away for casual or disreputable reasons." This is not Will's original thinking, of course; as he concedes, he is simply pushing David Bernstein's recent defense of the opinion. 

Will closes with the following:

Long execrated by most law professors, Lochner is the liberals’ least favorite decision because its premises pose a threat to their aspiration, which is to provide an emancipation proclamation for regulatory government. The rehabilitation of Lochner is another step in the disarmament of such thinking.

Could you think of anything sillier than that?

Here's a thought, for starters.  Tell me what you think of it:

I think most cases, most judges, know what it means to interpret the law, and can recognize when they’re going too far into an area of making law, but certainly there are harder cases. And someone like Justice Harlan always used to explain that when you get to those hard cases, you do need to focus again on the question of legitimacy, and make sure that this is the question that you the judge are supposed to be deciding rather than someone else.

You go to a case like the Lochner case. You can read that opinion today and it’s quite clear that they’re not interpreting the law, they’re making the law. The judgment is right there. They say: We don’t think it’s too much for a baker to work whatever it was, 13 hours a day. We think the legislature made a mistake in saying they should regulate this for their health. We don’t think it hurts their health at all. It’s right there in the opinion. You can look at that and see that they are substituting their judgment on a policy matter for what the legislature had said. So, you know, the fact that it’s difficult to draw the line doesn’t relieve a judge of an obligation to draw the line.

This is a statement by none other than Chief Justice Roberts during his confirmation hearing.  He is hardly a liberal, it goes without saying (this was the hearing where the Chief Justice famously invoked the "judge as umpire" metaphor, so maybe we can best understand him as playing a role).

This is why labels can be so unhelpful.  I wonder, in this vein, what Will thinks about the recent decisions over the use of race in admissions, employment, and redistricting.  I wonder, in other words, where his strict constructionism gets him.

I can only imagine.

Taking Stock of the Health Care Mandate in Court

This is exactly what anybody who is seriously following the health care debate needed; a scorecard of the various decisions and their court of origin. An editorial in yesterday's Times offered precisely that:

This is very helpful, but woefully incomplete.  According to the piece, six judges have concluded that the health care mandate is constitutional and five have concluded otherwise.  The article also notes that the judicial conclusions are tinted by partisan overtones, with most judges appointed by Republican presidents ruling against the mandate and judges appointed by Democratic presidents upholding it, though two judges have "broke[n] away from the partisan pattern."

This barely begins to scratch the surface.  Making sense of what has happened, and what is likely to happen in the future, requires far more information.  We need to know who these judges are, and not just who nominated them.  Think of it this way: knowing that Justice Thomas was nominated by the first President Bush tells us very little information about the ideological zealotry of the justice and the lengths to which he and his wife go in furthering conservative causes.  To be clear, I do not intend this as a criticism of Justice Tomas -- though also to be clear, I side with Randy Kennedy over Guy on this one.  The point is that a reasonable portrait of Justice Thomas, or any judge for that matter, must include more information.

The piece is falls short in other ways as well. It frames the legal question as a debate over the power of Congress to require everyone to buy health insurance even if they do not want to.  From this question, the competing answers are straight forward. To those who uphold the law, the question is whether the relevant activities affect interstate commerce in any way.  They answer this question in the affirmative.    Conversely, judges who strike down the law argue that forcing people to buy insurance is not commerce in the constitutional sense and beyond the scope of congressional regulation.  According to the 11th Circuit, the mandate is “a wholly novel and potentially unbounded assertion of Congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them repurchase that insurance product every month for their entire lives.”

This is all very riveting. But is it something that the rule of law could possibly decide objectively? Put another way: how does a judge -- even a strict constructionist, assuming any such thing exists -- decide this question under the law? Does the constitutional text, or existing precedents, give us an answer? This is to ask: Does anybody buy Chief Justice Roberts' umpire analogy any loner, assuming they ever did?

This takes me to a related question: whatever happen to the many attacks on judicial activism?  If striking down the health care mandate is not judicial activism in its clearest sense, then the term is empty of any meaning.  In case you suspected as much, think about and compare the reactions to Citizens United. Your curiosity ought to be piqued, at the very least.  

Finally, I wonder how constitutional law professors teach this health care debate.  Do they teach it formalistically, and try to fit it within the post-1937 commerce clause tradition?  This is to ask, if Congress can stop people from buying small amounts of wheat for personal consumption, then surely they can force these same people to buy health insurance, no?  And if they teach these cases within that tradition, then how do they explain the recent turn?  If ideology and crass political preferences do not explain the shift, then what?

The Upcoming Health Care Decision and the Legitimacy of the Court

On Sunday's New York Times, Adam Liptak asked, rather provocatively, whether the U.S. Supreme Court would lose legitimacy if it struck down the health care law.  I think the answer could not be clearer.  If the Court's legitimacy did not suffer in the wake of Bush v. Gore, the health care law won't do it either.  So much is clear.

But this is not what makes the health care litigation interesting and worthy of attention.

Another One Bites the Dust

Earlier today, a federal judge in Pensacola, Florida ruled that the 2010 Patient Protection and Affordable Care Act is unconstitutional. From here on out, we can fill in the rest of the blanks without doing any research whatsoever. Yes, the judge was appointed by a Republican President -- the judge is on senior status, so it must be Reagan -- and no, it is not a coincidence that the suit ended up in Pensacola, Florida -- lots of conservative judges up there -- and yes, the judge ruled that the law exceeds Congress' commerce power. That about covers it.

The response from the Obama administration is not surprising. They don't like the opinion. But far more interesting is the notion that this ruling can actually affect the law going forward.  In the words of an administration official, for example, "You could have governors come out tomorrow and say my state will no longer enforce this law because this judge said the whole things is unconstitutional." But this was true before this judge ruled down in Pensacola, and it is not much different from a governor coming out next week and saying that they will support the law because two judges upheld it months before. This one ruling doesn't change anything. Curiously, the judge did refuse to enjoin the law while the parties appeal the decision, yet suggested that his declaratory judgment is "the functional equivalent of an injunction." Whatever that means.

Also quite interesting, if expected, is the reaction from Republican leaders. They praised the ruling.  Not a word about judicial overreaching, or about activist federal judges causing havoc with the work of our political branches. Not a word. I wonder what Senator Sessions thinks of this one. I can only imagine.

I have four questions.

From the Health Care Ruling to Advice and Consent

After thinking about Judge Hudson's decision in Sebelius for some time, there was something still gnawing at me, something I couldn't quite figure out. The case itself is uneventful, as far as the legal particulars are concerned. For a judge appointed by a Republican President -- and not just any Republican President, but George W. Bush -- to side against any part of a health care bill signed into law by a Democratic President should surprise no one.

And yet, we as a politico-legal community seem either surprised or else, depending on one's point of view, relieved that the judge would decide as he did. I have in mind here a quote from Randy Barnett, professor of law at Georgetown University. It went something like this: “All the insiders thought it was a slam dunk,” . . . “Maybe a slam dunk like weapons of mass destruction were a slam dunk.” The Times reporter similarly wrote that the many challenges to the law could "no longer be dismissed as frivolous, as they were earlier this year by some scholars and Democratic partisans." This is clearly a theme of the ruling, as a different Times reporter similarly wrote that "the ruling was nonetheless striking given that only nine months ago, prominent law professors were dismissing the constitutional claims as just north of frivolous.

This struck me then, and still strikes me now, as simply nonsensical. This is especially so in light of everything we know about Judge Hudson and his politics as well as the arguments he made. Frivolity -- or lack thereof -- is the order of the day. Jack Balkin has a terrific response to this push on the part of Barnett and others to legitimize the commerce clause argument at the heart of Judge Hudson's ruling.

But this still didn't quite get at what wasn't quite right about the case and our responses to it. And then this occurred to me. What if, instead of Judge Hudson, the judge in the case were none other than Judge Judge Dick Cheney, or, even worse, Judge Limbaugh or Judge Beck. It may be that our reactions would still be the same. It may be, that is, that congressional Republicans would feel emboldened by such a ruling and renew their attacks on the law all the same, and that political support for the law would still destabilize as a result of the ruling. Who knows.

I suspect as much. Irrespective of the identity of the judge, the reactions would not change one bit. For support, one need to look no further than the mother of all activist decisions, Bush v. Gore. This was a case where the law took a backseat to pragmatic considerations and the short term goals and ideologies of the justices. What we knew as a practical reality meant little in the real world. President Bush went on to govern as if nothing unseemly had happened, and we were told to move on and "get over it."  The same would be true after a health care ruling striking down the law en toto, by a Judge Glenn Beck, even if every single law that had ruled on the question had upheld its constitutionality.

This must mean, in sum, that the confirmation process is really that powerful. A conclusion reached by a private citizen can be considered "frivolous," yet legitimate once the same conclusion is reached by the same person once confirmed by the Senate. Put more simply: the decision reached by Judge Hudson was considered frivolous a month ago, yet somehow is no longer frivolous because one federal judge, appointed by a Republican president and with strong ties to the Republican Party, placed it at the heart of his opinion.

The implications could not be clearer. The confirmation process is the end game, the place where legal revolutions are won and lost. This is why nominees need not be smart, or even qualified by whatever standard of one's choice. The nominee just needs to be part of the right team. I don't know much about Judge Hudson, but I know one thing: he is clearly playing for the team that put him in the game.

Consider in this vein today's latest plea by the editors of the New York Times. The crux of their critique boiled down to the following:

The Senate’s power to advise and consent on federal judicial nominations was intended as a check against sorely deficient presidential choices. It is not a license to exercise partisan influence over these vital jobs by blocking confirmation of entire slates of well-qualified nominees offered by a president of the opposite party.

Nevertheless, at a time when an uncommonly high number of judicial vacancies is threatening the sound functioning of the nation’s courts, Senate Republicans are persisting in playing an obstructionist game. (These, by the way, are the same Senate Republicans who threatened to ban filibusters if they did not get an up-or-down vote on every one of President George W. Bush’s nominees, including some highly problematic ones.)

Because of Republican delaying tactics, qualified Obama nominees who have been reported out of the Judiciary Committee have been consigned to spend needless weeks and months in limbo, waiting for a vote from the full Senate.

In light of the foregoing discussion, I have a completely different reaction to the Republican's delaying tactics decried by the Times. To my mind, the miracle in all of this is that any nominees get confirmed at all.

Looking for a Few Good Conservative Constitutionalists

What is not to like about a constitutional conservative? This is a person, according to the Mount Vernon statement, who believes in five basic principles:

limited government based on the rule of law to every proposal.

the central place of individual liberty in American politics and life.

free enterprise, the individual entrepreneur, and economic reforms grounded in market solutions.

America’s national interest in advancing freedom and opposing tyranny in the world and prudently considers what we can and should do to that end.

conservatism’s firm defense of family, neighborhood, community, and faith.

In a recent essay in the New York Times, Lincoln Caplan argues that the biggest challenge for those who wish to understand constitutional conservatism lies in "understanding what, if anything, it actually means." According to Caplan, some might call the slogan "vague" or "arrogant." However, "it would be shortsighted to dismiss this increasingly used rallying cry."

Caplan gets it largely right. The term "constitutional conservatism" does no substantive work, nor does it need to. It is a rallying cry, to be sure, but also a label. The good guys, those who agree with us about all that is good in the world, or all the things to which we ought to aspire as a nation, are constitutional conservatives. Everybody else, I suppose, is a constitutional liberal. Beyond that, the term is short on specifics.

For example, is Justice Scalia a constitutional conservative when he opposes race conscious measures as contrary to the equality principle of the Fourteenth Amendment, even if, as we very well know, the Reconstruction Congress did not pursue the colorblind principle as a guide to its own actions? Similarly, is Scalia a constitutional conservative when he rewrites the Voting Rights Act to his own liking, or when he enshrines a personal right to bear arms at the heart of his vision of the Second amendment?

I can't tell. And neither those who call themselves constitutional conservatives nor the Mount Vernon statement itself provide any answers.

But that is probably the point. The use of the “conservative constitutionalism” slogan is no different than the use of terms like judicial activism or strict constructionism. These terms are deployed as labels to signal one’s agreement or disapproval with a decision, but mean nothing. Scalia and Thomas are no more or less activist than Brennan or Warren might have been.

This is not to say that we should dismiss the term and those who now deploy it. I agree with Caplan on this point wholeheartedly. Rather, the question is, what is the intended audience? I think, in light of the recent election returns, that we know the answer to this question all too well.

A Word on the "Mystery" of Justice Stevens' Change of Heart on the Death Penalty

In Sunday’s New York Times, Adam Liptak “settles [a] legal mystery:” how to explain Justice Stevens’ vote to reinstate the death penalty in 1976 and his shift in 2008, when he wrote that he believed the death penalty to be unconstitutional?  To the untrained eye, this might appear to be a puzzle indeed.  If the Constitution is but an unchanging legal document, and the Justices’ job is akin to legal archaeology, how to explain any change in legal doctrine, not to mention changes of heart among particular justices? 

Justice Stevens’ answer is uneventful: changes in the composition of the Court, coupled with what he labeled “regrettable judicial activism,” led to a system that is no longer constitutional.   In other words, a process that once could withstand constitutional scrutiny was irretrievably damaged by allowances made by the Court itself.  This is a process, Liptak writes, “shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.”

But clearly this is no mystery. 

Where Are Thou, Judicial Activists?

The health care law is under heavy attack in federal courts across the country.  According to these attacks, Congress does not have the power under the Commerce Clause to demand that individuals buy their own health insurance.  This is the legal question, formally stated.  Put another way: how extensive and far-reaching are the power of Congress?

I could cobble together a bunch of cases and quotes to argue that the law is in fact unconstitutional.  But I could also argue otherwise.

That is to say: does anybody seriously think that these suits will be decided by formal law, not by political ideology or the judges' personal preferences?

Make no mistake, this is no different from the recent gun control rulings, Heller and City of Chicago, or the Citizens United case, or just about any other major case you can think of.  This is also how the upcoming showdown on the constitutionality of the Voting Rights Act will play out. The justices will paste together select quotes and cases that will inexorably lead them to their inevitable conclusion.  The law will make them do it.

In this vein, I would love to ask incoming House Speaker John Boehner and Senator Sessions what they think about the health care litigation.  I would also love to ask them, in turn, what they think about the upcoming challenge to the constitutionality of the VRA.   I would also love for them to explain what made Justice Thomas a judicial activist but not Justice Thomas or Scalia.

I would then love for them to explain to us all how they would reconcile these various decisions.

It is simply not possible. Not rationally, at least.

Writing Supreme Court Opinions

I often ask my students why they think the U.S. Supreme Court hands down written opinions. The question traditionally comes on the heels of a maddeningly if unnecessarily complicated opinion, when the justices choose to join parts of a majority opinion but not others, choosing instead to concur in part or in the judgment. Just this past week, for example, during our discussion of Thornburg v. Gingles, we encountered the following:

BRENNAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, III-B, IV-A, and V, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, an opinion with respect to Part III-C, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, and an opinion with respect to Part IV-B, in which WHITE, J., joined. WHITE, J., filed a concurring opinion, post, p. ---. O'CONNOR, J., filed an opinion concurring in the judgment, in which BURGER, C.J., and POWELL and REHNQUIST, JJ., joined, post, p. ---. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and BLACKMUN, JJ., joined, post, p. --. 

In Gingles, the Court was assigned the task of interpreting the recent Amendments to Section 2 of the Voting Rights Act. Setting aside for the moment the question of interpretive philosophy, why did the Court feel compelled to issue an opinion totaling close to 25,000 words, and with so little agreement among the justices? In specific reference to constitutional cases, why doesn’t the Court simply announce its judgment and nothing more, that is, why doesn’t it simply tell us who wins and who loses and save the trouble of writing opinions?

The usual answer is the guidance rationale. That is, the Court writes opinions as a guide to the future, for lower courts, the relevant political actors, and the public at large. But according to Adam Liptak’s recent piece in the N.Y. Times, this is no longer a rationale that makes any sense, if it ever did. In Liptak’s words, “In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts. And it increasingly does so at enormous length.”

What, then, to make of the justices’ penchant for expressing themselves? That is, to put the question in a way that actually makes sense: who in the world are the justices’ talking to?

Standing, Restraint as Virtue, and Conservative Judicial Politics

Just this past week, while teaching a seminar on the Supreme Court as an institution, I wondered about the way we teach constitutional law to our 1L's.  I know that law students need to learn law, and as such the legal model must be given pride of place.  I get that.  But, assuming con law has not changed from the time I took it in the early 90's -- and a quick perusal of the leading con law case books appears to confirm my intuition -- how do we explain the exclusive attention we pay to law and legal materials as dependent variables, at the expense of everything else?  That is, how do we excuse the fact that political science models -- particularly the attitudinal model and the strategic models -- are seldom part of the discussion in law schools across the country?  How else could we possibly explain what is going on, in order to be able to predict the future?

These questions on mind, I read with great interest Linda Greenhouse's latest online entry in the Times.  Her point is quite simple though no less important: standing doctrine, which determines whether a party has been harmed and thus can bring a suit in federal court, has long been interpreted narrowly by conservative jurists.  But according to Greenhouse, this traditional approach is soon to change, as conservative judges "are suddenly throwing the courthouse doors open wide."

This is certainly interesting. And calling Senator Sessions a hypocrite is always great fun.

However, this should not be big news to anyone paying attention.

The End of Judicial Activism?

I have been thinking a lot lately about Judge Walker’s ruling in California striking down Proposition 8, and Judge Bolton’s ruling on Arizona’s immigration law.  The most obvious response is that these rulings, and the reactions of those who oppose them, lay bare the silliness of the modern debate over judicial activism.  According to their critics, these rulings are exercises in judicial activism by liberal judges hell-bent on destroying everything we hold dear; yet recent rulings on gun rights, campaign finance, and race, to name a few glaring examples, are exercises in judicial restraint and the faithful exercise of judicial responsibilities in enforcing our beloved Constitution. 

This is bunk, obviously; Justice Scalia is no less an activist judge than Justice Marshall.  They just happened to care about different things.  This is true under any definition of activism you can think of, from the invalidation of statutes to the creative and dynamic interpretation of federal laws to the active use of the avoidance canon.  If you need support for this, take a look at the Supreme Court’s most recent pronouncement about the Voting Rights Act, Namudno v. Holder.  Rather than rule on the constitutionality of the Act, as most observers expected, the Court, in an opinion authored by Chief Justice Roberts, “avoided” the constitutional question.  It did so by essentially rewriting the statute to say something the text clearly did not say.  In the coming years, the Court is similarly poised to strike down the special provisions of the Act.  As I have written elsewhere, this is “activism on steroids.”

To focus on the concept of activism is thus to focus on the wrong target.  This is to focus on politics, not law, and to render criticisms of judicial rulings as questions of whose ox is being gored.  No shame in that, of course, but hopelessly unhelpful.

Instead, we should focus on the fact that judges are strategic actors, particularly those who sit at the top of the judicial hierarchy.  This is to say, the justices of the U.S. Supreme Court have policy preferences, which are reflected as best as possible in their rulings and votes from the bench.  This is true of all the justices, not only the liberal ones.  The moment we come to accept this truism, the better off we will be. 

Right off the bat, I can think of one big improvement on our politics: we won’t have to listen to Senator Sesssions pontificate about the dangers of judicial activism. 

Enough already.

The White House and "Liberal Judicial Philosophy"

On "Face the Nation" two days ago, CBS Chief Legal Correspondent Jan Crawford discussed some documents she unearthed that will "give the White House something else to think about" regarding Elena Kagan's nomination to the Supreme Court.  Bob Schieffer first offered that one of the main reasons that Kagan was Obama's choice was the fact that she would be "easily confirmed."  But these documents proved that Kagan was "a lot more liberal than people realize."  According to Crawford (you might want to sit down as you continue reading, by the way):

These documents have her squarely within mainstream liberal thought.  She’s worried about this conservative Supreme Court undoing rulings that would give a woman the right to an abortion, she’s worried about gun rights, saying she is not sympathetic to an individual’s right to own a handgun, she’s concerned about some conservative rulings scaling back rights of criminals, that’s basic, mainstream liberal thought.

So basically, for a Democratic President to nominate a person to the Supreme Court who would not overturn Roe, Miranda et al., and would agree with Judge Robert Bork that the Second Amendment "guarantee[s] the right of states to form militia, not for individuals to bear arms" would bring a fight with conservatives that President Obama does not want?  

This, in a nutshell, highlights the challenge facing progressives in modern American politics.  

As Guy has argued, judicial nominations offer an "opportunity to debate the purpose of the Court, to explore alternative constitutional visions, and to argue about constitutional meaning."  Instead, the White House has fought back the notion that Kagan is a liberal with a vengeance, as if, in Crawford's words, "it's a smear to say their nominee is a liberal."

In the end, judicial nominations are fights over meaning.  Presently, the conservatives hold the clear upper hand: their judges are "paragons of judicial restraint," while liberal judges are "judicial activists" hell-bent on rewriting the Constitution to their liking.  Rather than offer a counter-narrative, President Obama has chosen to accept the conservative narrative as his own.  That is unfortunate.  He is thinking about his political future in the short term, when he should be thinking "long term for the Court and the law and liberal judicial philosophy.”

Justice Souter's Judicial Philosophy

Justice Souter delivered the commencement address at Harvard College last week. His theme was the challenge of interpreting the Constitution, a document best understood as “a pantheon of values,” where many open-ended clauses often lie in tension with one another.  How is a judge to interpret such a document?  One answer is to argue that the text, or the intent of the framers, standing alone, guides the justices in their pursuit of right answers.  Anything else is law-making, or judicial activism.  But Justice Souter argued, clearly and forcefully, that “for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality.”  For the really hard cases, when constitutional values conflict, no simple rule of decision exists.  When deciding those cases, what must a judge do?

This is where Justice Souter parts company with those who yearn for a “simpler Constitution.”  In his words, “behind most dreams of a simpler Constitution lies a basic human hunger for the certainty and control that the fair reading model seems to promise.” But he is far too kind, because I don’t think for one moment that those who “dream[ ] of a simpler Constitution” are seeking certainty and control.  They know better.  All the same, Souter argues that while they seek certainty, he holds on to the “belief that in an indeterminate world I cannot control it is possible to live fully in the trust that a way will be found leading through the uncertain future.”

At the heart of Justice Souter’s constitutional vision lies his recognition about the subtlety of constitutional meaning.  He offers the example of segregation, and the Court’s reversal of Plessy in Brown.  To the justices in 1896, the meaning of segregation was quite different for the justices in 1954.   This is not to say that the 1896 Court was wrong, or that the 1954 justices were activists.  Rather, Souter explains, “[t]he meaning of facts arises elsewhere and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own.”  This is only a recognition of the centrality of judicial diversity as an integral component of a fair and independent judiciary.

This is a remarkable speech, worth reading in its entirety.  Justice Souter’s lessons about experience the ability to think “from a point of view different from their own” are worth remembering as we set out to replace Justice Stevens.  

Thinking about Activism, Judicial and Otherwise

An article in yesterday's New York Times pitted President Obama and Chief Justice Roberts as "two intellectual gladiators in a great struggle over the role of government in American society."

Without intending to do so, this Article highlights the many problems facing progressives in the world of American politics.

Three things in particular caught my attention. First, the framing of the article itself puts progressives in a situation they cannot win. It is Obama, the President and author of "Obamacare" and everything that is wrong in the world of politics inside the Beltway, against the Chief Justice of the Supreme Court. I wonder who is going to win that battle in the court of public opinion.

This point is directly related to the second. In the article itself, Obama is labeled "an activist president." I think the label is partly right, especially in the wake of the landmark health care legislation. But the label is also partly wrong. Obama may be an activist, but he certainly is not the activist that progressives might prefer. Think in this vein of the health care bill itself and its lack of a public option. Think also of the recent debacle over the failed nomination of my colleague Dawn Johnsen to lead the Office of Legal Counsel, or the direction of Obama's foreign policy. If this is a liberal President, and an activist President at that, I cannot imagine what a moderate president would look like.

The third point follows as well. This is a point about judicial nominations. From the article:

the search for a replacement for the retiring Justice John Paul Stevens is centered on finding a justice who will not just replicate his liberal votes but also bring intellectual heft and powers of persuasion to the court to win the swing vote of Justice Anthony M. Kennedy, according to people close to the search who insisted on anonymity to discuss it. While activists on the left often say they want a liberal Antonin Scalia, the fiery conservative justice, Mr. Obama is looking for a liberal John Roberts, who can forge a five-vote majority rather than write satisfying but ultimately meaningless dissents.

There is so much wrong with this passage that I don't even know where to begin. Obama wants a "liberal" with "intellectual heft" yet also with "powers of persuasion" to seduce meek Justice Kennedy to our side. This is troubling enough; yet more troubling still is the idea that the Chief Justice is a consensus builder, a conservative justice willing and able to forge compromise and bring the needed justices to his side. To be sure, this is what the Chief Justice preached during his confirmation hearings and soon after joining the Court. This is not the Chief Justice we have come to know.

The larger point is this: labels matter, and in the public imagination, Obama is a liberal, and so is Justice Stevens, Breyer, and even Sotomayor. In contrast, Thomas, Scalia and the Chief Justice are conservative justices , "classical judicial jurists" who follow the law and do not try to make anew. This is clearly a hoax, a myth carefully created and nurtured by very smart people who clearly know what's at stake.

Move ahead to the upcoming Supreme Court nomination in order to make sense of all of this. In the last go around, Obama nominated a moderate judge yet conservatives assailed her as a liberal activist and 31 senators voted against her. The next nomination will be along similar lines and senators will criticize it all the same. Right then and there you know that the conservative movement and its construction of reality is winning, by a wide margin. A Republican president nominates Justice Alito and Chief Justice Roberts, and Senate Republicans are able to confirm them. Why is it that Democrats cannot do the same? Why is it that Professor Pam Karlan, as distinguished and credentialed an academic as you will find, is not nominated, but a moderate, even conservative Elena Kagan might be?

Here is everything you need to know: five years ago, two of the four "liberals" on the Court were nominated by Republican presidents. What does that tell you about the Court's ideological drift in the last generation? This reminds me of Justice Stevens' dissent in Parents Concerned, the Seattle school case, where he wrote that "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision." Of course not. This is not the same Supreme Court we are discussing. This is an activist Supreme Court, especially on matters about which the conservatives care deeply. All the while, the general public continues to believe that it is a conservative Court, and the press continue to perpetuate the myth of its conservatism.

As I stated at the onset, this is the problem confronting progressives at the moment. It is quite a challenge.

Are we all activists now?

President George W. Bush reminded us any chance he got that he would only appoint strict constructionists -- whatever that means -- to the federal bench. These would be judges in the mold of Justices Thomas and Scalia. This is a conservative canard, but one with plenty of traction among the public.

An article posted today by Linda Greenhouse reminded me of this old debate. Greenhouse is weighing in on looming constitutional attack on the health care bill and argues that the Supreme Court is unlikely to strike down the recent legislation. I agree with her position wholeheartedly. But her article is far more important for all that it implies about judicial behavior and the many relevant influences on federal judges.

Three passages in particular caught my attention.

The first passage responded directly to the states' arguments against the health care legislation. As she points out, one can find much commentary on this questions around the blogosphere, often made by people who ought to know better. For, as Greenhouse writes, "the only real question is whether any of these arguments will find a warm reception from at least five Supreme Court justices. The answer, almost certainly, is no." This is, without question, the crux of the case. Will the conservative justices have the will to take on the landmark health care legislation? Or in Greenhouses words, "Students of Rehnquist-style federalism will recall that the master himself blinked when his revolution got too close to the core of issues that people really care about."

Make no mistake, to take on the health care legislation would entail judicial activism of the highest order. In the wake of Citizens United and, a decade ago, Bush v. Gore, it would be hard to be surprised by anything the "conservatives" on the Court choose to do anymore.

The second passage is closely connected to the first point:

But Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.

I cannot help but read this passage and recall the recent Sotomayor hearings and the feigned indignation by Senator Sessions and many conservatives about her "wise Latina" remark. Her point was simple and hardly newsworthy: the background of a nominee will shape how s/he decides cases on the bench. I can hardly think of a more benign statement. This is Linda Greenhouse's point, and I wonder whether the conservatives who attacked Justice Sotomayor will likewise attack Ms. Greenhouse. I seriously doubt it.

Finally, Greenhouse writes that "John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own." I wonder whether this is true, in light of Citizens United. Perhaps this is a bad example, since few people understand the arcana of campaign finance law and the way in which the conservatives went about overturning the Austin case. Greenhouse's sentiment does help explain the recent Namudno case, where the Chief Justice avoided a constitutional confrontation with Congress over the Voting Rights Act. If Greenhouse is correct, it may just be that the Voting Rights Act is on safe constitutional ground after all. I have my doubts. Either way, I am more interested in how this argument casts the Chief Justice, as a judicial strategist more interested in his image and that of the Court than in following the exacting demands of the law.

This is exactly how we ought to view federal judges, and conservative judges should not be an exception. Somehow, however, I have a sinking feeling that it will take much more for the conservative canard to fade from view.

The Health Care Debate Heads to Court

Go back to my colleague Dawn Johnsen's Senate hearing last year to head the Office of Legal Counsel (a position for which, embarrassingly enough, she is yet to even get an up-and-down vote). At about 1 hour and 11 minutes into the hearing, Senator Sessions volunteered the following:

“I think that Roberts and Alito represent two of the finest exponents of a classical interpretation of law, a classical view of the role of a judge I have ever seen, and it troubles me that you would think that they . . . would be somehow setting about to radically remake the Constitution.”

“I think Justice Alito and Justice Roberts have classical judicial philosophies that would really trouble me if somebody thought they were unfit for the bench, and somehow set about to radically remake the constitution.

“It’s the activists that are remaking the constitution, not the classical judicial jurists.”

Reading these words, the recent Citizens United case might readily come to mind, as clear an exercise in judicial activism as we are likely to see. What that case has to do with a classical judicial philosophy, I cannot say.

I wonder what Senator Sessions thinks of the next step in the health care debate: a call by various state attorney generals, joined by Baker Hostetler as outside counsel, to overturn the legislation in the courts.

I understand the logistics: to lose in Congress is only to lose the first fight in a long and drawn out battle. It is also true that this is not a new development, as just about every major piece of legislation is ultimately challenged in court. Nobody likes to lose, after all, and you only need to find find five justices at the end of the line who agree with you. The Republicans can count votes as well as anybody else.

It is also hard to blame the lawyers. As they pointed out, to work in this particular case is "enormously gratifying and intellectually rewarding," and the law firm will only charge a "substantially reduced" rate.

I get all that. What I don't get is the unchallenged assertion that "conservative" justices are paragons of judicial moderation, classical jurists who interpret law, not make it, while the "liberals" are the judicial activists, hell-bent in their desire to radically remake the Constitution.

That so many people believe such a lie, and that a sitting U.S. Senator can tell it publicly, is one of the great conservative triumphs of this generation. Conservative jurists can strike down any piece of legislation they want, from the Religious Freedom Restoration Act to gun control legislation and campaign finance laws, and rather than scorn, Senator Sessions welcomes it as exercises in judicial restraint and classical jurisprudence (whatever that means).

The health care debate is only the latest installment in this ongoing narrative. Republicans fought the good fight, yet ultimately lost. It happens. Rather than prepare for the next fight, however, they are preparing to go to court. Their arguments are not novel: Congress lacks power to require individuals to buy health insurance; penalizing those who fail to buy insurance violates the tax-apportionment clause of the U.S. Constitution; and the legislation grants the U.S. government new powers in violation of the 10th Amendment. But that is hardly the point.

This is a canard, plain and simple. Conservatives, no more and no less than liberals, are judicial activists, and Justices Scalia and Thomas are just as intent in "radically remaking the Constitution" as Justices Marshall and Brennan. The moment we come to recognize this, the better off we will all be. For one, the judicial confirmation process would improve immeasurably.

But I am not holding my breath.

The Courts to the Rescue?

Anybody else find it amusing (ironic?) how conservatives are quick to castigate courts for their activist ways, yet just as quick to enlist these very courts when it suits their purposes? In case any further proof was needed, here is yet another example, and a surprising one at that: the health care bill.



According to the Florida's attorney general, William McCollum, the personal mandate to buy health insurance in the bill is “an affront to our country’s principles.” As for the fine for those who refuse to buy insurance, he deems it illegal, because it is not connected to any commercial act.

The a Republican who is running for governor in 2010, said that the so-called mandate was He added that the fine might be illegal because, in his view, it is disconnected from a commercial act. In his view, it is “a tax on people or a penalty on those who don’t do anything.”

The Heritage Foundation similarly wishes the courts to save us from ourselves. According to a recent memorandum, the mandate is "unprecedented and unconstitutional," beyond the powers of Congress under the Commerce Clause as well as an unconstitutional tax under Article I, section 8.

It would be easy to engage this debate on the merits, and many already have. But the larger point is far more important. The debate over judicial activism and restraint is often portrayed as a debate between liberals and conservatives over the soul of American democracy. Reality is far from that. We are all activists now, and the only question for the future is whose policy views will the courts accept.

That these debates are carried on in major media outlets and the hypocrisy of the conservative position is not highlighted by anybody is, in and of itself, a triumph of the conservative movement.