Ex Post

Friday, September 02, 2005

More on Stare Decisis

T. More,

Would you distinguish constitutional stare decisis in other fundamental rights contexts, i.e. the incorporation cases or the equal protection clause as it pertains to women, even Brown?

Roe is obviously shaky and I wholeheartedly agree that it "refuses to settle a particular question of individual right persuasively." But there are many other such decisions in gender discrimination, and particularly in criminal procedure that establish rights just as unpersuasively as a matter of original meaning. But no one seems to think we should overrule these.

So do we distinguish Roe because the nature of the right is so terribly immoral that we cannot overlook its unsound reasoning as we can in gender discrimination and rights for the accused? No sensible person thinks that Brown is immoral, and few think cases like Craig v. Boren and Gideon are immoral. But that, to me, is not using stare decisis neutrally. In the words of our beloved HPM (88 Colum. L. Rev. 723, 743):

Because a coherent rationale for the intermittent invocation of stare decisis has not been forthcoming, the impression is created that the doctrine is invoked only as a mask hiding other considerations. As a result, stare decisis seemingly operates with the randomness of a lightning bolt: on occasion it may strike, but when and where can be known only after the fact. A satisfactory theory of constitutional adjudication requires more than that.

So I don't think this answers the question. I don't think your structural/rights dichotomy completely works. Even if one takes the position that the rights precedent can be overruled, even for cases like Brown, Craig, and Gideon, because the rights are so ingrained that they would immediately be reinstated legislatively, that doesn't account for the effect of the precedent on shaping those values so that such would take place.

That many consider the right to have an abortion on par with their right to counsel or right to equal protection because of their gender leads me to believe we need a better theory of stare decisis. You say "if the reason we are asked to stick to [Roe and Casey] is policy and not law, I say no way." But policy here, I think, should mean what role stare decisis plays in our jurisprudence. We need to place precedent within originalism and develop neutral principles for its invocation. Otherwise it's Monaghan's lightning bolt.

Continue Reading "More on Stare Decisis" . . .

Friday, August 26, 2005

Finally, a Reply to Helvidius on Stare Decisis and Roe

Some time ago, Helvidius, you posed for us an interesting query on an issue sure to be raised again and again during the Roberts confirmation cakewalk (interesting history for that term). I have been slow to respond mostly due to a lack of personal virtue, but also because a somewhat virtuous part of me decided to try to think long and hard about stare decisis in our system.

But since our recent dispute in the comments over at De Novo demonstrates that you and I diverge widely on that anyway, I'll just go for a more modest response here on Roe. I'm inclined to agree with the Frankfurter analysis that stare decisis is generally a matter of policy. Thus, one policy reason in its favor is that it promotes certain important values bound up in the rule of law--stability and predictability perhaps chief among them, and creates a resistance to the parallel vices of judicial caprice, rule by whim, and so forth. On the other hand, to say that stare decisis is a matter of policy means that it should be strongest for judges where policy arguments tend to matter most--let's take easy cases like statutory interpretations where bureaucratic practices are at stake. They could be Chevron cases but not necessarily. In such cases, where a legislature can in any event cure the misinterpretation, the interests of predictability, stability, and efficiency are all served by stare decisis, without much by way of strong countervailing interest, since even fundamental errors can be corrected by legislation.

But Constitutional cases naturally pose a different problem, as the damage cannot so easily be cured when they are wrongly decided. They do so even more when they implicate fundamental rights, such as life, liberty and property (those old fashioned fundamental rights that the framers named--we could throw in speech, exercise of religion, and others). When would we ever want to stick with getting fundamental rights wrong as a matter of law because of a policy preference for sticking with the prior decision? I think the answer most people would give is never. That's the answer they would give for Plessy v. Ferguson, and they should. That's the answer they would give for Dred Scott, and they should. Whether they are to be corrected by judicial overturning or constitutional amendment is less important for the moment than that they cried out to be overturned.

Roe is a case that clearly implicates such issues. But both Roe and Casey simply beg the crucial question: acknowledging that the status of the foetus is fundamental to the cases, and acknowledging that neither science nor the text, structure, or history of the Constitution settle the issue, they punt, and declare, after all the Constitution does settle the issue against the foetus in perpetuity. Let's take Roe first:

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.

Now, those brave jurists in Casey, who wanted to save us from a jurisprudence of doubt:

Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one's beliefs, for the life or potential life that is aborted. [emphasis added]

Except of course they have arrived at an answer, and it cannot be challenged. Given the robust (though unique, as we saw in Lawrence) view of stare decisis advanced by the court in Casey, it is hard to see what would permit the overturning of Roe. But that logic is so tortured it would take days to demonstrate the many ways. One is irresistable, however. As we have discussed here before, and as is plain in any event, one invokes stare decisis when a prior decision is on shaky ground. If it were not, there would now be no bother about why to continue to follow it. So let us see this gem from Casey:

No evolution of legal principle has left Roe's doctrinal footings weaker than they were in 1973. No development of constitutional law since the case was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking.

Well, of course not. The whole point is that this opinion's authors needed endless verbiage to establish a stare decisis defense for Roe because it had no doctrinal footings to begin with! Further, Casey itself all but abandons everything but the holding of Roe, and so it does what it claims has not been done--leaves Roe, as a matter of legal reasoning, behind as a sort of shell of a survivor of obsolete constitutional thinking. It's delicious that the same opinion claims that another important reason for the court to hold as it holds is to maintain the Court's credibility. Work for you?

Now, if the reason we are asked to stick to such a decision is policy and not law, I say no way. The life question is the whole shootin' match, folks. It can't be dodged, yet settled in one direction, and then defended by stare decisis. As Justice Scalia put it:

The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. Thus, whatever answer Roe came up with after conducting its "balancing" is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is, of course, no way to determine that as a legal matter; it is, in fact, a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so.

Stare decisis makes sense for fundamental constitutional issues like the administrative state or even desegregation because by now there is no serious public dispute about either of these. There is lots of disagreement in theory about how big the federal government ought to be, but elections are able to change that, if people were serious about it. Some even think that's what Republicans in Congress have run on for the last 35 years--but they have, without any prodding from the Supremes, expanded government apace. The country seems to have headed there, and there does not seem to be a live legislative or judicial controversy about it. In this sense, we can in retrospect recognize the economic changes of the New Deal and the Administrative State as a Constitutional Moment of the Ackermanian (?) sort. We can do so as a descriptive matter, beyond reasonable dispute I think (the kind of relatively bright line a judge can use) without endorsing the "moment" theory as a normative view of interpretation (thereby inviting judges to get out the divining rods or read chicken entrails to determine if were "having a moment" right now). Similarly, the Civil Rights era would seem to have achieved such a status--there is no serious public defense of segregation, even if there is the possibility of a serious discussion of the reasoning of Brown. (Other aspects of our civil rights debates, such as affirmative action, clearly remain in the hotly contested category.)

But notice that for Roe the circumstances are different: there has been a protracted and serious ongoing debate not just about the reasoning of Roe but about the status of the unborn child. It is why the New York Times has opposed foetal homicide laws, because at the end of the day protecting the right to "choose" only matters when what's being chosen is the end of the life of the foetus. That is, the Times is consistently worried that if people notice that we treat people who kill unborn children as murderers, that might make us think that abortion was...oh, I'd best not say it. I'll give that to the Times editorialists, they are not completely stupid. But I digress.

As I noted above, Roe is about a fundamental individual right wherein the court refused to explain decisively on scientific or constitutional grounds that it could not exist. Nevertheless, it pronounced that right perpetually trumped (Stenberg having put the final stake in the heart of the trimester system with the total triumph of the "health of the mother" standard) by the right to choose. Such a question-begging analysis about an indisputably important issue can hardly be allowed to stand on the grounds of stare decisis. Similarly, if Bowers had been wrongly decided, it would have been wrong about a serious right. And it should therefore have been overturned. Now, I think that Bowers, as a matter of Constitutional law, was correctly decided, and that the anti-sodomy laws would have fallen of their own weight (even in Texas) anyway. Thus, we may be near a Constitutional moment I think on "bedroom" regulation, one that in fact favors Lawrence, but that is nowhere near covering Roe, however much people might like to lump people's interest in saving foetal life in with their purported interest in banning contraception (thus putting Roe into the libertarian camp of Griswold). (And let me repeat, I don't think Lawrence was either necessary or proper as a matter of law, and I don't recommend the Justices look for Constitutional moments in the first instance. Rather, I'm saying that to look back at the massive societal shift that was the move to the Administrative state and not be willing to upend it now as a court is much more defensible, and for that the "constitutional moment" framework might be helpful.)

The problem with that, to repeat and wrap up, is that Roe is unlike these other decisions in that it refuses to settle a particular question of individual right persuasively (by its own lights), and thus uses the Constitution to deny a discrete and insular minority (the unborn) with a persistent group of advocates (pro-life legislators) the right to have their case heard and even won in the legislature. No respectable doctrine of stare decisis can be used to claim that such a dodge on such a fundamental issue is required by law to stand.

[Blogger's note: I reserve the right to amend this post without significant notation, as I have blurted it out freeform in about 45 minutes without breathing, and under heavy emotional disturbance after rereading the majority opinion in Casey.]

Continue Reading "Finally, a Reply to Helvidius on Stare Decisis and Roe" . . .

Thursday, August 25, 2005

Penumbrae, Ghosts and Other Liberal Weapons: Or, Plain ol' Shameful Innuendo

One expects the scurrilous and indefensible from the likes of NARAL's anti-Roberts campaign. But need we also expect it from the Knight Professor of Constitutional Law and the First Amendment at The Yale Law School? I'm afraid so.

Here, Prof. Jack Balkin decides, on the flimsiest of grounds, to raise the possibility that John Roberts might "have been a hitherto unknown part of the Iran-Contra scandal." That would of course be grounds for opposing him. But as you can plainly see from the only "evidence" behind this speculation, there is no evidence behind this speculation. I shared these thoughts with Prof. Balkin in his comments, but I'll repeat them here for the sake of those readers who might think I'm a little unfair with the liberal professoriate from time to time.

The article says this:

There are three reasons the papers were withheld under federal records laws, according to Archives officials. They include preliminary judgments by archivists that information in them would improperly invade a person's privacy (such as revealing a Social Security number), jeopardize law enforcement operations or potentially harm national security.

Under the ordinary course of business, archivists black out individual words or sentences before releasing a document. In this case, National Archives official Sharon Fawcett said, the rush to release a large volume of documents quickly did not allow enough time for surgical redactions -- so the entire page was pulled.

The White House involvement in this process is unclear. Fawcett said White House officials are allowed to offer input during the review process, but she would not discuss their involvement. Senior White House officials said administration lawyers typically examine the documents after the archivists complete the initial review, and they insisted they have not asked for any papers to be withheld that archivists did not first flag.

It's not clear how this translates into "The Democrats obviously want to know what is in those files; the Bush Administration doesn't want anyone to know" (the words are Balkin's, the emphasis is mine).

But, if one chooses to adopt that assumption, it permits one to speculate, without any foundation, that Judge Roberts might have abetted the breaking of laws while he was in the White House, as you do here.

Is there a level at which spouting this sort of innuendo seems inappropriate? Couldn't we wait until something more damning than this article comes out before raising the specter of participation in a major scandal?

I know my answers to these questions, and I'm afraid we now know Professor Balkin's as well.

Continue Reading "Penumbrae, Ghosts and Other Liberal Weapons: Or, Plain ol' Shameful Innuendo" . . .

Wednesday, August 24, 2005

Breyer and Ely?

Jim Lindgren posts an excerpt and review of the WSJ's story on Justice Breyer's new book. Lindgren thinks that it sounds a lot like Ely's Democracy and Distrust. Here are the two pieces he wants to equate:

From the WSJ:

By contrast [with Justice Scalia's book on interpretation], Justice Breyer's "Active Liberty" contends that judges can undercut the democratic system the Constitution's Framers sought to build if they adhere too literally to legal text and disregard the "real world" consequences of the decisions they render.

. . .

A judge's task, he says, is construing the Constitution in a way "that helps a community of individuals democratically find practical solutions to important contemporary social problems." He calls that freedom to participate in government "active liberty," a complement to passive liberties that protect the individual from interference by the government.

From a review of Ely's book in 1980:

Ely's theory of judicial review focuses on allowing everyone equal input in the representative part of the government and free participation in the political process. If the government is a fair representation of the beliefs of the nation, the Supreme Court does not need to make value judgments with one exception, which is the other half of the theory. The Court must not allow the majority to take advantage of the minority. Ely admits that both of these require certain value judgments by the Court; however, the values of fair representation and protecting minorities were invoked by the Founding Fathers. For example, James Madison wrote in The Fe[de]ralist no. 51, "It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure."

I of course haven't read the book, but I don't buy the comparison. First, Ely's views are based on a construction of the Constitution where the 9th Amendment and the Privileges and Immunities Clause actually vested power in the judiciary to expand rights. I have seen no similar textual/structural justification from Justice Breyer in his opinions. Secondly, Ely's view of the Constitution is all about including "out" groups so that they have fair participation in the political process. Justice Breyer's pragmatism is more of a "equal partner" model of judicial review where the judiciary is an active participant in the development of law. This was most clearly evident in his Booker opinion.

In any event, I'm excited for the book. It's hard to see any logic or theory in Justice Breyer's jurisprudence, but I guess we'll see.

Continue Reading "Breyer and Ely?" . . .

The Breaking Point

Linda Greenhouse published this piece in the NYT on Thursday lauding Justice Stevens for his dutiful adherence to the Constitution in spite of his personal views. I think that's probably true of Kelo, less likely true of Raich, but nonsense in Roper. Past terms yield a wealth of cases where Justice Stevens has followed his "Desire," rather than what Greenhouse terms his judicial "Duty."

While it seems weird to be lauding Justice Stevens of all people for his commitment to some sort of formalism, it is certainly true that every judge at least sometimes comes to conclusions with which he or she doesn't completely agree. Even Roper could be defended as not going as far as the Justice would like to go, even though the actual holding was far more Desire than Duty.

What does this tell us about the measure of "Duty" that judges like Justice Stevens employ in their decisions? While every judge begins with some commitment to the actual Constitution, every judge has a breaking point, a point at which a judge abandons an honest inquiry into what the Constitution requires him or her to hold, and finds a way to come to the "right" and "moral" conclusion.

What is most telling about Ms. Greenhouse's piece is that Justice Stevens' not adhering to his own policy preferences is somehow novel.

Continue Reading "The Breaking Point" . . .

Tuesday, August 16, 2005

More on the Kelo Dissent and SDP

I'm sure by now everyone has read Jack Balkin's attempt at likening the Kelo dissent to Dred Scott. He tries a little number where he argues that since the Public Use Clause so clearly doesn't limit private takings, Justice O'Connor (joined by Scalia, Rehnquist and Thomas) is clearly protecting substantive due process. This argument is silly, even for a Balkin post.

He first posits a reading of the Fifth Amendment that limits its protection to takings for public use, meaning that any takings for private use are not even covered:

The Public Use Clause regulates private to public transfers for public use, but note that it says nothing about takings for private use. That is because this category is already dealt with in the first limitation on eminent domain, the Due Process Clause, which prohibits private to private transfers.

To be sure, this is not a terrible argument. It is certainly one reading of the Fifth Amendment, which, like any other reading, has very little "legislative history" support to explain what the clause was meant to mean. That the Court has historically always seen the clause as some sort of limit on the nature of permissible takings probably makes this, in the end, unpersuasive. But this is not Balkin's problem.

He then argues that since Kelo was obviously not a Public Use case, but a Due Process case, Justice O'Connor was, like Taney in Dred Scott, protecting unenumerated rights. Nevermind that O'Connor nowhere mentions reliance on the Due Process Clause, that the case was briefed and argued on the Public Use Clause, and that the Court has always framed the issue in Public Use terms. He notes another seeming paradox:

Nobody accused Justice O'Connor of engaging in substantive due process, and amusingly, Justices Scalia and Thomas, who don't usually recognize unenumerated rights, joined her opinion.

Does he think that Scalia and Thomas were somehow tricked or that he is "outing" them as closet SDP-adherents? It's going to take more than this to prove these two as hypocrites. (See, e.g., BMW v. Gore; State Farm v. Campbell).

Now I think that Justice O'Connor is wrong. But to say that since she was wrong with the Public Use argument, she must be relying on unenumerated rights is to equate misinterpreting a constitutional provision with a judicial philosophy that sees no need for a constitutional provision. Balkin allows no room for misinterpretation, and would interpret every holding by the Court under the Equal Protection Clause, the First Amendment, the Fourth Amendment, etc., with which he disagrees as obviously Due Process violations. Nevermind the text of the opinions; Professor Balkin is responsible for interpreting the actual support for the Court's holdings.

Continue Reading "More on the Kelo Dissent and SDP" . . .

Monday, August 08, 2005

Good and Bad Arguments for a Constrained Judiciary

I found myself this morning on the train defending a part of Larry Tribe's comment in Scalia's A Matter of Interpretation to a fellow federalist attorney. This was such an interesting experience that I figured it would be fun to relate.

A Matter of Interpretation is Justice Scalia's short essay defending textualism. He discusses statutory interpretation and briefly comments on constitutional interpretation. He includes responses to his essay from Gordon Wood, Larry Tribe, Mary Anne Glendon, and Ronald Dworkin. He then responds to their critiques in turn.

Larry Tribe's comment takes issue with Scalia's version of originalism in constitutional interpretation. Although admitting not to have an all-encompassing theory of his own, he seeks to break with both Scalia and Dworkin in offering a conception of interpretation that treats some provisions of the Constitution as "aspirational" in nature rather than static. After a few of the usual ad hominem attacks and claims of judicial hypocrisy, he finally gets to saying that since the text of the Constitution doesn't explicitly call for an original intent approach, it is equally plausible to view such things as freedom of speech, cruel and unusual punishment, and due process as principles that were not meant to remain tied to the founding period, but to expand as society progresses to attain the fullness of human aspirations. This, of course, is committed to the judiciary to implement.

My federalist friend was willing to concede that these provisions should be viewed this way, but refused to accept that it was then for the judiciary to fulfill these aspirations. Even if the framers intended these rights to expand, it should be the popularly elected legislature that leads the charge, not the countermajoritarian judiciary.

This, however, misunderstands Marbury. Justice Scalia's response in his book is that he disagrees that the amendments were meant to be aspirational.[1] Look to the rhetoric of the Declaration of Independence for aspiration, not to the mechanical structure of government in the Constitution. And, Justice Scalia continued, if the rights were meant to be aspirational, then Marbury is wrong that the judiciary is charged with interpreting the scope of those rights. Marshall would not have been so strong in his language if he had known these rights to be aspirational. Such a reading is problematic now and it would have been problematic then.

We need Marbury because we need cases like Lopez, Morrison, City of Boerne, et al. The judiciary has a vital role to play in the protection of "Our Federalism," and the disdain for the recent activism by the judiciary should not infect our arguments with an absolute distaste for the independence of the judiciary. The goal is cabining the judicial power to that which has been popularly given, not the taking away of it altogether.

So Tribe's argument fails because the amendments were not meant to be aspirational, and that the mechanism for change, absent a provision in the amendment or statute, is further legislation, not judicial creation. But we must accept that if he were right and the amendments were aspirational, Marbury gives it to the judiciary to do the aspiring. To do otherwise is to throw the baby out with the bathwater, as it were.

[1] One point that neither discuss is the difference between the 14th Amendment and all the rest in terms of aspiration. I think Ely's arguments in Democracy and Distrust are formidable that the equal protection clause was not meant to be static. The Court's treatment of the clause evidences this as well as it has gone far beyond equal rights for blacks.

Continue Reading "Good and Bad Arguments for a Constrained Judiciary" . . .

Wednesday, August 03, 2005

Clinton's Appointments, The Mainstream, & cetera...

Much has been made, especially by liberal commentators and politicians such as Sen. Charles Schumer, of how balanced President Clinton was in his judicial appointments. A corollary of this, implicitly or explicitly, is that President Bush ought to but has not sought to be so "conciliatory." There is a fair point that President Clinton did not promise his supporters to put people on the Court who would behave like William Brennan, or like Thurgood Marshall, whereas Pres. Bush repeatedly suggested that Justices Scalia and Thomas were his model justices. But of course, the fact that Antonin Scalia and Clarence Thomas are the most "conservative" members of this court does not mean that they are in any interesting way the judicial (but conservative) equivalents of Brennan and Marshall.

More importantly, I think it should be noted that President Clinton got elected because he recognized that for a Democrat to win the White House he needed to run to the right. He needed to reject the "Massachusetts Liberalism" that had gotten Dukakis into trouble and that has fallen out of favor with the national electorate since at least 1972 (President Carter did not run as a particularly liberal fellow in either of his election campaigns).

Thus, it is more than a little strange to hear Senators like Ted Kennedy and Chuck Schumer opine as often and as stridently as they do about the importance of nominees who are within "the mainstream," or to extol President Clinton's nominations as if they were the products of virtue rather then politics. Of course, it is also possible, and I think likely, that President Clinton, who taught Constitutional law and had a lot of generally moderate instincts, recognized just how wacky was the jurisprudence of Justices like Brennan and Marshall. So I will buy that Clinton did not, by and large, appoint terribly left wing people to the judiciary. But I do not accept that he did so because virtue demanded it: he did so because the mainstream is well to the "right" of Senators Schumer and Kennedy, and he was well to the right of them most of the time as well.

Continue Reading "Clinton's Appointments, The Mainstream, & cetera..." . . .

Recess Appointments and The Constitution

On Monday, President Bush nominated/installed John Bolton as Ambassador to the United Nations and on Tuesday, nominated/installed Peter Cyril Wyche Flory to be assistant secretary of defense for international security policy. In both cases, the President made the appointments pursuant to his authority under Article II, Section 2, Clause 3 of the United States Constitution. Does that clause in fact give the President the authority to install Bolton and Flory in this way, at this time? Interestingly, the Supreme Court has yet to definitively rule on the scope of the President's power under Article II, Section 2, Clause 3, though a number of circuit courts have passed on the question and upheld presidential recess appointments.

The clause, commonly known as the Recess Appointments Clause, states: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." The term "Vacancies" refers to the offices listed in the preceding clause: "Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law." Dispensing with the easier element first, it seems clear that these men were the type of officers contemplated by the framers as being able to appointed under this clause. The more difficult question is whether the appointments are for the types of vacancies contemplated and within the time frame contemplated.

The eleventh circuit recently, in Evans v. Stephens, addressed the constitutionality of Judge Bill Pryor's appointment by the President during an intra-session recess and found the appoint constitutional. In addition, The Second and Ninth Circuits have also decided that the Recess Appointments Clause reaches appointments to Article III courts. See United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F.2d 704 (2d Cir. 1962). In looking at the Bolton appointment, I would suggest that for two key reasons, the appointment is beyond the scope of the original meaning and purpose of the appointments clause. First, a textual reading of the clause suggests that it was intended to deal with cases where a vacancy arose during a long recess where there was no intent of Congress to return before another session. The vacancies that can be filled are ones that, by the text, happen during the recess. This suggests the framers wanted to limit the clause to cases where Congress had never had the chance to even contemplate the existence of a vacancy, not where they made a (perhaps) conscious decision to leave the post vacant while they recessed. Second, the clause is probably best understood as applying not to intra-session recesses, but to inter-session recesses where Congress was not returning. I say this because the remedy, a commission for the entire session, would otherwise be far greater than the problem at hand. Why, if the clause was also meant to include intra-session recesses, did the Commission not run until the Senate had a chance to act on the nomination consistent with the more natural appointment process. If we accept that, as Hamilton said it was in the Federalist, the Recess Appointments Clause was a gap-filler, intended to deal with the sometimes impractical nature of the Appointments clause, then the clause is more properly limited to inter-session appointments. Otherwise, the session-long commission, which might be given upon only a day recess, seems entirely disproportionate. Common sense history might also suggest a narrower understanding, given that the framers were likely more concerned with politicians being out of Washington for good, which given the difficulty of travel and the shortness of sessions, was almost definitely more likely to happen during an inter-session recess.

I will not endeavor here to attempt to fully canvas the original literature, nor to entirely convince the reader that this narrower reading of the Recess Appointments Clause is correct. I would however suggest that the interested reader peruse the different opinions in Evans. A close reading suggests that Judge Barkett in dissent, usually no originalist, has the better of the originalist, textualist and purposivist arguments as opposed to the majority. The majority is lukewarm at best in its attempt to justify its decision as an originalist interpretation. They instead seem fully satisfied to rest their decision though on a Midwest Oil, Frankfurtian "historical gloss" argument, and in so doing, they might reach the right conclusion for today's modern government. It is beyond the scope of this post to attempt to address whether we should read a historical gloss onto provisions of the Constitution. However, I would suggest that a close reading of the Recess Appointments clause suggests that perhaps it is being interpreted too broadly as a matter of original meaning, and perhaps it is time for the Supreme Court to settle the question once and for all.

Continue Reading "Recess Appointments and The Constitution" . . .

Monday, August 01, 2005

Fantastic Debate

sponsored by the LA Times. Others have pointed it out, but see here for pieces by Epstein, Sunstein, Kmiec, and Chemerinksy, among others, on the Roberts nomination.

Continue Reading "Fantastic Debate" . . .

This Advice and Consent is Silly

I just watched this video by Joe Biden on confirmations and advice and consent. I expected some discussion about the Senate's role in the confirmation process, but was disappointed to hear more screaming about the constitution in exile and how awful the world would be had Judge Bork been confirmed.

Biden likes to work a little trick in these kinds of speeches by talking about how the non-delegation doctrine and the activist, conservative view of the commerce clause threatens to undermine modern government. He talks about how important and foundational Griswold is to the American people, and how the undemocratic Right is undermining American values. As if it is these, and not Roe and Lawrence, that is mobilizing the majority of the country to remake the Court.

"I believe with every fiber of my being that the Constitution protects a Zone of Privacy."Well, no matter how many people believe it with however many fibers, the jurisprudential issue remains that such a right actually isn't in the Constitution, regardless of how badly people want it to be. What followed was the parade of horribles that I remember hearing in con law. This means that the government could mandate limits on the number of children, force women to have abortions, and on and on and on. Apparently since the Constitution doesn't forbid these things, we should all be very worried that they will follow quickly on the heels of Judge Roberts' confirmation. The Left has still failed to explain to us how we can forge a Constitution that will prevent every conceivable harm without creating an uncontrollable judicial power, but they sure like to talk about the hypotheticals.

Maybe rather than more propaganda, one of these guys should put forward a coherent view of the role of the Senate's advice and consent in this process. But I'm skeptical.

The problem is that the general American public is not suited for a debate on the merits of different versions of judicial review. Voters understand rights and privileges and when the Supreme Court makes decisions that they think are right or wrong. They do not understand the intricacies of the role of judicial review in our constitutional order. It doesn't mean they're stupid; they just haven't studied law. Judge Bork's recounting of his interaction with Senator Specter during his confirmation confirms that even many senators on the judiciary committee are not capable of this debate.

What really happens, is that Senators Kennedy and Biden get an opportunity to warp and twist the views of the candidates to scare Americans. In the video I watched, Biden was trying to convince the audience that Bork wanted to repeal the gains of the civil rights movement "wholesale." What? Remember Kennedy's speech before the Bork confirmation hearings? Absolute nonsense. And since jurisprudence is something that the vast majority of voters don't understand, all the explanations from the nominee or his or her witness do not matter. While many liberals are calling for sensible discussion on this confirmation, and for a look at the judge's views and how it will impact the Court, I either do not buy their intentions, or am skeptical that such a thing would happen.

I'm fully confident in Judge Roberts' abilities for these hearings. I think he's going to sail through, and any of these tactics by Kennedy and Biden are going to be futile because Roberts isn't going to get sucked in the way Bork did. He's used to being grilled by the Justices, and these stupid little questions from the two numbskulls are going to be easy hurdles.

Moral of the story? 1) Roberts was an extremely good pick, both because of his abilities and because of his ability to get confirmed; and 2) the advice and consent created by the liberal senators is a brute scare tactic that is used to trick voters. It's hard to see how that is either advice or consent.

Continue Reading "This Advice and Consent is Silly" . . .

More on the Federalist Society and Debate

More internal dissent among ex posters. Regarding Phocion's post below, PG says, among other things:

[T]he American Civil Liberties Union asserts its sole purpose as being defense of the Bill of Rights (except for the strongest reading of the 2nd Amendment), whereas the Federalist Society, despite claims that it is only for debate, asserts certain views associated with conservatism on its own website.

I think she's missing the point.

An organization can obviously be for debate because their views are not being properly represented. Sure, the members of the organization generally ascribe to "certain views associated with conservatism," but that doesn't mean they're not primarily interested in convincing people through debate rather than misleading propaganda. Nor do those certain views tell us anything interesting because those views contain both sides of every major issue (the fascinating libertarian/conservative dynamic). This is Phocion's larger point, that since every view is represented somewhere in the Federalist Society, and are being debated, everyone should want to be involved in that debate.

The Federalist Society does not, like the ACLU, take a position that is contested if not essentially contested and dogmatically ascribe to it and litigate it for all it's worth. The Federalist Society is about recognizing the importance of ideas, and either debating them among themselves or interjecting debate into the law schools. If we are going to gain members, it is going to be through rigorous debate, not a requirement that new members agree with us.

So the distinction between the Federalist Society and some of its compadres on the Left is the method of persuasion. What we think we've learned that the Left misunderstands is that when you stop trying to convince people and try and force things upon them, your efforts don't stick, and are only good as long as your people are in charge (i.e. as long as you have a majority on the Court). If you convince people, however, then they continue to run things the way you would like. I think this is far more honest, focuses on genuine debate about issues rather than misleading propaganda.

Brown is the obvious exception, and continues to be the rallying cry for the litigating Left. Since Brown was more accurately a cause at the forefront of the civil rights movement rather than an effect of democratic legislation, we decide that we don't need to engage the public in debate, but will take our case to the courts and convince them to make the important changes.

But Brown should not be such a catalyst. Its reasoning was a sham, and could have easily been reached by an interpretivist approach and saved the legitimacy of the written constitution. And whatever value the departure from a formalist understanding of the Constitution in the context of blatant racial discrimination, issues like abortion and the use of the death penalty for murderers do not warrant such a departure.

To be fair, PG's post comes around and concludes that we need to be focusing on Roberts' jurisprudence, not his club membership. But I think Phocion's points are spot on. In my experience, the vast majority of federalist society members are in the organization to learn through the debate, have not made up their minds on every issue. And even for those issues that we are pretty convinced, it is through debating the issues that we plan on bring others to the fold.

Continue Reading "More on the Federalist Society and Debate" . . .

Sunday, July 31, 2005

What is the Federalist Society?

The NY Times today has an article attempting to answer the question: what is the Federalist Society and what do its members believe. Since this is a "legally inclined" blog where at least some of the posters are "members" there may be no finer forum than here in which to have this argument. But before the call goes out for a debate, let me posit an easy solution to the question: this blog itself in a way answers the very question. The Federalist Society is about legal interest, legal scholarship and legal debate. On this blog, we are interested in examining, analyzing and yes, at times even critizicing the decisions and current overall state of the legal order. But as many of the posts on this site show, there is no lockstep march toward a pre-determined conclusion. Different positions are often taken: for an excellent example, remember our debate on torture. To the contrary of a closed society, perhaps one of the Federalist Society members' only shared sentiment is that current legal academic institutions do too little to foster the types of debates which are encouraged on this blog and within the Society itself. That belief tends to draw conservatives, libertarians, and a host of others into the Society, but its membership does not define it, its ideal of open debate does.

Continue Reading "What is the Federalist Society?" . . .

Friday, July 29, 2005

Ninth Circuit RLUIPA Case

The Ninth Circuit today reversed the lower court that had denied an injunction to a prisoner who had been coerced into cutting his hair in violation of his religious beliefs. The prison policy was that hair was not allowed to be longer than 3 inches, and contained no exception for inmates with religious reasons for long hair. The prisoner, a Mr. Billy Soza Warsoldier, holds religious beliefs that he can only cut his hair upon the death of a loved one.

The District Court had held, ridiciulously, that Warsoldier had not been denied any religious exercise because he had not been physically forced to cut his hair, but had just been denied a tremendous amount of privileges.[1] Obviously, the Ninth Circuit held, this flies in the face of Sherbert v. Verner and the idea that punishment that coerce an adherent to forgo religious exercise is a substantial burden.

The prison rule being a substantial burden, the government had to then prove that it advanced a compelling state interest and was narrowly tailored. The Ninth Circuit didn't buy any of the arguments such as disease control or heightened security from not being able to hide things in the hair. While they in the abstract are sufficiently compelling, the hair length rule was not narrowly tailored.

To be sure, the court noted several times that this is a minimum security prison and distinguished a number of cases that would push them the other way based on this distinction. But the Ninth Circuit would require the prison authorities to have "actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice."

This opinion surprises me because of the sweepingly non-deferential language the Ninth Circuit used. Remember Johnson v. California (we blogged about here and here), and the arguments in Cutter (here). Deference to prison officials goes back and forth. In Johnson (5-4), the majority refused to defer, exacting strict scrutiny, when the issue was racial segregation, while Cutter was, at least it seemed from the arguments, upheld specifically because the problems of religious practices impairing prisons' ability to conduct necessary operations would be remedied by deferring. Today's opinion must be seen as strict scrutiny of the prison rules.

The race issues from Johnson, such as what you do with an inmate who has a religious belief in segregation, are resolved since these are, presumably, compelling state interests. But the health and security concerns are problematic. While I'm a fan of RLUIPA, I'm not sure how to resolve this.

[1] From the Ninth Circuit Opinion:

As a consequence of his refusal to cut his hair in violation of his religious beliefs, Warsoldier has been subjected to a series of punishments designed by CDC to coerce him into compliance. He has (1) been confined to his cell; (2) had additional duty hours imposed on him; (3) been reclassified into a workgroup where inmates do not receive time credits or as many privileges as others working in a higher work group; (4) lost his phone call privileges; (5) been expelled from print shop and landscaping classes; (6) been removed from his position as a member of the Executive Body for the Inmate Advisory Council; (7) been prohibited from going to the main
yard for recreation; (8) had his monthly draw at the prison store reduced from $180 to $45; and (9) been prohibited from making special purchases at the prison store.

Continue Reading "Ninth Circuit RLUIPA Case" . . .

Thursday, July 28, 2005

Cars, Cows and Federalism

In this post criticizing a New York Times editorial on how a Justice Roberts might roll back commerce clause- based federal regulations, T. More says,

Does anyone believe we need the Federal government's help to stop those darned states (especially the red ones) from approving of child labor? Let's grant that some states would not adopt the position of the EPA if somehow we were to return to a federal government of limited powers (by, say, adopting something like that wildly moderate Justice O'Connor's position in Raich); they might even differ from the approach of OSHA. But CHILD LABOR? Were these people never read the story of the boy who cried wolf?

T. More titles his post "Or, if he says he's against child labor, will you support him?"

However, a personal distaste for child labor hardly is the point; the Times is addressing whether Roberts's judicial philosophy would render the federal government unable to enact legislation to prohibit child labor. I have a personal distaste for hate speech, but my understanding of the 1st Amendment doesn't permit for its prohibition.

As for whether it's utterly absurd that the states could prefer a lower standard for child labor regulation than that promulgated by the feds, even the federal standards have been criticized for being out-of-date and failing to recognize differences between minors and adult males (for example, in permissible exposure to pesticides during agricultural labor). Some states under-enforce federal immigration law in order to have a sufficient supply of labor for the picking season, so I don't find it impossible that they'd lower standards on child labor as well.

I suspect what T. More really finds objectionable is the idea that we would return to Industrial Revolution-era conditions, which is indeed ridiculous, but also not the editorial was talking about explicitly (though the authors may have wished to raise fear of it by implication). In the absence of federal regulation, states have the room to experiment, and those experiments can be good or bad.

To assume that a given state wouldn't lower the working age to 13 (Kansas lets girls get married before that age, which horrifies Nebraska) seems to me to ignore the diversity of needs and attitudes in different localities. Most of the kids who took driver's ed with me already had plenty of driving experience on back roads and pastures because that was the norm in East Texas, and the guy who sat in front of me in sophomore English had lost part of one finger to a cow he'd been milking. In contrast, none of my college friends from Northern Virginia got in a driver's seat until they were 15, nor had any of them dealt in animal husbandry.

Considering that part of the rationale for federalism rests on precisely this variation among states, I don't think a federalist honestly can claim that all the states would hew to the federal regulation in its exact letter if the Supreme Court declared it to be invalid. Probably none of them would return to the pre-federal regulation state of affairs, but a large number of federal regulations, being cut to fit the majority of states -- or just the states with the most influential representatives and lobbyists -- are not necessarily ideal for each one of the fifty. If the states might differ from the EPA regarding the environment, or from OSHA in matters relating to adult labor, why must they necessarily adhere to federal standards in the single area of child labor?

Continue Reading "Cars, Cows and Federalism" . . .

Geoffrey Stone on Roberts

Geoffrey Stone of the U. Chicago Law School has a piece in the Chicago Tribune today on the nomination of John Roberts to the Supreme Court. In brief, Stone's argument is that this nomination is a "win" for liberals, not because Roberts isn't a conservative, but because he isn't a Clarence Thomas conservative. Stone's argument is that the left should accept Roberts as a smart, talented judge, one who will approach cases fairly, but will not be "doctrinaire" or "originalist."

I applaud Stone's attempt to call off the wolves and see this nomination for what it is: appointing an amazingly talented jurist to the Court. However, I take issue with a few of Stone's assumptions. First, he states that Roberts is "too good a craftsman" to be an "originalist." He labels originalism "vacuous" and "disingenous." We know of course, that Stone would prefer an "evolving" understanding of the provisions of the constitution, that for him, the idol of a judge is William Brennan. But between the two judicial philosophies, which is more disingenous? Which is more vacuous? The vacuousness seems rather obvious: at least originalism is tethered to something, to an attempt to discern the original meaning of the text as passed by our legislture and delegates, and as understood by the people. An evolving constitutional method of interpretation has no such tether, but instead flails about on the wings of public attitude, or more precisely, on the wings of individual judges. And Stone admits, he wants a more compassionate Constitution, one premised on individual dignity and fairness. But from where do these principles emanate? Surely, the Constitution has provisions which serve to ensure fairness, like the due process clause. But I can't conceive of anything more vacuous than a method of interpretation which bases an understanding of due process on some "gut feeling" of fairness, without reference to external guideposts. The only conceivable tether to such a method is one's individual morality, and that seems the most vacuous choice possible as it pertains to a constitutional democracy.

Stone also applauds Roberts' nomination because, since Roberts is no originalist, he thinks he is a pragmatist, and may therefore, learn and evolve (i.e. move left). Stone's vacuousness argument is refuted by himself here. Since Roberts is supposedly "untethered" and "open-minded" we should accept him because he will drift. The vacuous space in Roberts' mind and heart is filled with a sense of fairness and "justice", perhaps learned on the Georgetown cocktail circuit. No. The less vacuous judge, the more tethered judge, the more principled and therefore consistent judge, is the one with an overarching philosophy, a framework to which the facts of particular cases can be applied.

In the end, Stone's editorial reaches the right position: Roberts is qualified, and should be confirmed. However, the subtle digs against a method of constitutional interpretation which attempts to replace "vacuous" methods with something, with anything, is upsetting. To imply that someone is too smart to be an originalist suggests that Justice Thomas, Justice Scalia, Judge Bork, Randy Barnett, and a slew of others are vacuous, unprincipled nitwits. A more "genuine" editorial may have ended with an admission that all too often, constitutional interpretation is guided by pointing to internal guideposts like judges' senses and feelings as opposed to reference to external tethers like history, tradition, and original meaning. If the latter is to be termed "vacuous" by the educational elite, sign me up for nothingness.

Continue Reading "Geoffrey Stone on Roberts" . . .

Monday, July 25, 2005

Maybe He Can Use the "No, I Was a Token Liberal" Defense

Judd at Think Progress breathlessly reports, "Federalist Society Transcript: John Roberts Was A Member."

The media seems to be having trouble figuring out whether John Roberts was a member of the Federalist Society. Maybe they should just read the transcripts from Federalist Society events. Here's a quote by Elliot Mincberg of PFAW at a Federalist Society event on 9/9/03:
Anybody who honestly believes that people like Miguel Estrada and John Roberts were selected solely because of merit without any view whatsoever about their points of view, their membership in the Federalist Society, other things, I have a bridge I would love to sell them.
No one else on the panel objected to Mincberg's description of Roberts, including Leonard Leo, the Federalist Societyâ€™s executive director.

So is being a Fed Soc member enough to hang one, or does one have to have those "points of view" and "other things" as well? I'm having troubling visions of an improbable future in which I am nominated for some high post, and being queried as to whether I am now or have ever been a member of the Federalist Society. Maybe some of the Hollywood Ten were just Communists for the good events and hot guys.

UPDATE: OK, now it's just getting silly --

Supreme Court nominee John G. Roberts Jr. has repeatedly said that he has no memory of belonging to the Federalist Society, but his name appears in the influential, conservative legal organization's 1997-1998 leadership directory.

Continue Reading "Maybe He Can Use the "No, I Was a Token Liberal" Defense" . . .

Judge Roberts' Jurisprudence

The Supreme Court Nomination Blog has the first couple in a series of posts about Judge Roberts' jurisprudence. These first two are fantastic. I'm hoping to come back and discuss the two posts, but here are the links.

The first, by Tom Goldstein, discusses his views on the scope of the commerce clause as gleaned from Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (CADC 2003), a case in which Judge Roberts wrote a dissent.

The second, by Lyle Denniston, discusses the war on terror and the Judge's votes in three cases, principally Hamdan.

Continue Reading "Judge Roberts' Jurisprudence" . . .

Saturday, July 23, 2005

Judge Roberts decision

On Friday, a panel of the DC Circuit issued an opinion in US v. Tarry, a 4th amendment case. Judge Roberts dissented from the panel opinion of Judge Rogers, joined by Harry Edwards. The case presents the question of whether probable cause existed for police officers to search the trunk of Mr. Tarry after they stopped him for a broken backlight, and subsequently determined that the license plates affixed to the car were stolen. The majority found the officers proferred reasons for searching Mr. Tarry's trunk - which led them to find a loaded weapon - was not believable and that probable cause did not exist. As to the merits, it seems far-fetched to believe that no probable cause existed to believe that a search of the trunk would have revealed evidence of a crime. At the very least, the cars actual license plate tags could have been found in the trunk. Furthermore, the police had at least a reasonable basis for thinking the actual car to be stolen, since its plates were fake and altered, and Mr. Tarry had attempted to obscure the plates by breaking the tag light. Under such circumstances, probable cause is established and the trunk may be subject to search.

As they always seem to do, 4th Amendment cases invoke a difficult tension between the rights of citizens to be free from unreasonable searches and the deference owed to law enforcement personnel on the ground. Judge Roberts' dissenting opinion is interesting for the deference it pays to law enforcement (in the mold of Rehnquist), and for his understanding of the proper role of the judiciary in such cases. Judge Roberts seems willing to grant broad deference to the officers' on-the-ground judgments and experiences. He places a great deal of emphasis in his opinion on the testimony of one officer who stated that 6-7 out of 10 times he had stopped a car and determined that tags were stolen, the real tags were found in the trunk. This testimony alone is almost enough to Roberts to establish probable cause for a search. And Roberts also seems worried about the panel opinion's suggestions as to what the officers could have done further to investigate and corroborate their suspicions:

Finally, my colleaguesâ€™ insistence that police should have
further questioned Jackson amounts to prescribing preferred
investigative procedures for law enforcement. We have neither
the authority nor the expertise for such an enterprise. See United
States v. Montoya de Hernandez, 473 U.S. 531, 542 (1985)
(â€œcreative judges engaged in post hoc evaluations of police
conduct can almost always imagine some alternative means by
which the objectives of the police might have been accomplishedâ€
(internal quotation marks omitted)). In the end, I would
leave the judgment as to what lines of inquiry ought to be
pursued to the officer himself, and judge probable cause on the
facts as they are, rather than on what they might have been had
the officer pursued a different course.

The Tarry opinion thus stands as a good example of the substantive conservatism of Judge Roberts, but, perhaps even more, of the measured and restrained approach to judging. He recognizes the deeply important value of being free from unreasonable searches, but he also is keenly aware of the difficulties law enforcement officers face on the ground. His approach would provide greater deference to these law enforcement personnel, in part because he thinks judges cannot post hoc adequately understand the situation in which the officers found themselves. Furthermore, Judge Roberts also expresses a view that judges are not all-powerful, and are limited in their abilities and understandings. Perhaps this suggests an ultimate unwillingness in some cases to bring the full weight of his opinion to bear (see Roper v. Simmons) when all that stands behind it is his own opinion. As Judge Roberts eloquently puts it: "I wholeheartedly subscribe to the sentiments expressed in the concurring opinion about the Fourth Amendment's place among our most prized freedoms. But sentiments do not decide cases; facts and the law do."

Continue Reading "Judge Roberts decision" . . .

BUT OH, IT'S NOT ABOUT RELIGION!

That's what we will be told by Sen. Schumer, by the New York Times, and others who will pretend that they are studiously neutral, mainstream commentators on American law and politics. But read today's article on Supreme Court Nominee John Roberts's wife. Note that the article claims that Ms. Roberts's activities have drawn interest. Then ask yourself: from whom? Is a single named person in the article interested? Or is not the tone that there is a presumption against a pro-life advocate that must be defended against? The interest here is the interest of the New York Times, and it is one you will notice when you read it.

Then read the rest of the New York Times. Keep a count of how many stories that are not about religion (as this one, ostensibly, is not about religion) focus on the religious faith of the subjects of the story. Report back in the comments. Should be interesting. I have not the patience with the New York Times to complete this research task myself. But I did notice that, in an article that even Sen. Kennedy says (in the article itself) covers material that should be out of bounds, they do choose to emphasize that Mrs. Roberts is a Roman Catholic. So am I. So is Sen. Kennedy. Next?

Continue Reading "BUT OH, IT'S NOT ABOUT RELIGION!" . . .

Friday, July 22, 2005

"Random" Searches in the New York City Subways

While I hate to distract from the confirmation hubhub, I thought I'd see what people think about the NYPD's new policy of searching subway riders absent individualized suspicion.

The NYPD has begun searching straphangers' bags without any specific basis for believing them to be terrorists. The policy combines random checks (e.g., every tenth rider) with checks of those who are actually suspicuous (e.g., a bag with protruding wires and an accompanying ticking noise).

Naturally, I'm against the policy. It smacks of selling our rights for the illusion of safety. [Insert your favorite Ben Frankin quotation here.] Of course the NYPD defends the policy on the usual grounds: "The public understands we live in changed times," said the Commissioner.

So the age-old question returns. How much liberty are we surrendering, and for what benefit? The liberty interest seems pretty big to me. For many New Yorkers, the subway is the only way to get to and from work. It's the only practical way to visit much of the city. Therefore, anyone who cannot afford regular taxi fare now implicitly has no right to be free of searches of his person and effects.

The benefit is close to zero. Yes, we may deter a would-be subway bomber. But he can always blow up a nearby Starbucks and kill just as many people. It's like "the Club," which does not deter car theft but merely moves it from Clubbed cars to others. (And a murderer can of course blow up the checkpoint itself, like people do in Iraq and Israel, thereby turning a safety device into a death trap.)

The NYCLU has said it will likely sue. I think it should win.

P.S. Another interesting case is the right to travel anonymously on airplanes. See more here about a case in the Northern District of California challenging FAA requirements that air travellers show ID.

Continue Reading ""Random" Searches in the New York City Subways" . . .

Wednesday, July 20, 2005

Changes to Come with Roberts

This report on the Think Progress Blog details well the cases that are likely to swing with Roberts replacing O'Connor. I get giddy just thinking about it.

An additional note which muddles everything is the rapid change of Justice Kennedy's jurisprudence. While Roberts would be the fifth vote in all these cases, Kennedy's fourth vote is never a sure thing, and he could easily flip on Stenberg, Grutter/Gratz, and Hibbs.

Continue Reading "Changes to Come with Roberts" . . .

Tuesday, July 19, 2005

Breathtaking! (Or, if he says he's against child labor, will you support him?)

No, not the President's selection of DC Circuit Judge John Roberts as his choice to replace Justice O'Connor on the Supreme Court, though it is a thrilling selection. Rather, I find myself short of breath after reading this putatively restrained editorial in tomorrow's NY Times. The restraint here is that the Times does not take a position on Judge Roberts--yet. They want to wait until he fails to give sufficient evidence of being like Justice O'Connor. Or their fantasy of Justice O'Connor. But before we get to the legal absurdities of the piece, let's look at the extraordinarily overheated rhetoric. Here's a choice bit:

If extremists take control of the Supreme Court, we will end up with an America in which the federal government is powerless to protect against air pollution, unsafe working conditions and child labor.

Now, who was it that let the word out? Was it you Phocion, or you Helvidius, that gave away the secret notes from the Federalist Society meetings where we all dreamt of a future of employing kids to make socks even more cheaply than Chinese prison labor? It's really hard to imagine how even the editors at the New York Times thought that line was appropriate for a "real" newspaper, rather than, say, Mad Magazine. Does anyone believe we need the Federal government's help to stop those darned states (especially the red ones) from approving of child labor? Let's grant that some states would not adopt the position of the EPA if somehow we were to return to a federal government of limited powers (by, say, adopting something like that wildly moderate Justice O'Connor's position in Raich); they might even differ from the approach of OSHA. But CHILD LABOR? Were these people never read the story of the boy who cried wolf?

But wait, there's more! As in the very next two sentences:

There are reasons to be concerned about Judge Roberts on this score. He dissented in an Endangered Species Act case in a way that suggested he might hold an array of environmental laws, and other important federal protections, to be unconstitutional.

Truly unbelievable. Judge Roberts's dissent was from a denial for en banc rehearing of a case in which he was worried about whether a particular application of the Endangered Species Act was being upheld on grounds inconsistent with the Supreme Court's commerce clause jurisprudence. He in no way raises concerns about the act itself, and indeed suggests merely that better grounds for upholding its Constitutionality might be found if the whole Circuit were to rehear the case:

The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating "Commerce ... among the several States." U.S. Const. art. I, Â§ 8, cl. 3. To be fair, the panel faithfully applied National Association of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997). En banc review is appropriate because the approach of the panel in this case and NAHB now conflicts with the opinion of a sister circuit - a fact confirmed by that circuit's quotation from the NAHB dissent. See GDF Realty, 326 F.3d at 636 (quoting NAHB, 130 F.3d at 1067 (Sentelle, J., dissenting)). Such review would also afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent. See Rancho Viejo, LLC v. Norton, 323 F.3d at 1067-68 n.2.

That the Times would so shamelessly distort such a brief dissent from a refusal to rehear en banc tells us all we need to know (not that we didn't already know it) about the sincerity of their "withholding judgment" at this early stage.

Something else to watch out for: the Times, following Sen. Schumer's lead, is calling for thorough questioning of the candidate; no doubt when he gives "evasive" answers both Schumer and the Times will object that the country deserves to have him promise to uphold Roe, and perhaps to confer with Justice O'Connor by phone before writing any future opinion, before he can be supported. But did they oppose Ruth Bader Ginsburg when she ruled out question after question at her hearings? Let us hope that cool heads and clear consciences will prevail over the sort of sleazy politics that is presaged by this editorial--shifting the goalposts on proper inquiry and absurdly claiming that a brief dissent in a denial of a petition for rehearing raises questions about child labor.

Continue Reading "Breathtaking! (Or, if he says he's against child labor, will you support him?)" . . .

Announcement

Scott McClellan has informed the press that the President will announce his nominee to replace Sandray Day O'Connor at 9PM tonight!

Continue Reading "Announcement" . . .

Hamdan and the Domestic Enforceability of International Law

Hamdan v. Rumsfeld, decided Friday by the D.C. Circuit, held on three issues. First, the court was not required to abstain from deciding the case; second, that the President had been delegated authority from Congress to create the tribunals and; third that the Geneva Convention on the treatment of Prisoners of War does not create a right of action for Gitmo detainees. The Court also held, in dicta, that Hamdan would not win even if he were granted the convention rights (for posts on this see Marty Lederman and Peggy McGuinness).

The third holding, that relied upon by the District Court, was an extension of Eisentrager, which held that the rights under the convention were not judicially enforceable, were for the political branches to remedy. This, in my mind, is the most interesting, and the issue that we will hopefully hear decided in the next couple terms.

The issue is the distinction between the U.S.'s foreign obligations and its domestic law. For the entire history of the Republic the U.S. government has entered treaties that have bound it internationally. We break treaties and are brought before the World Court. But never have these international obligations been successfully used by domestic litigants to force the United States to comply with them. Eisentrager is completely on point.

We have talked a lot about last term's Medellin v. Dretke, which the Court ultimately DIGged. Medellin dealt, in principle, with the same issue. No one contested that the ICJ's decision was an international obligation of the U.S., but rather what that had to do with the case before the Supreme Court. These are two different things: The Convention binds the U.S. internationally, but it does not create rights to be enforced in U.S. courts.

Those arguing that these treaties that were never intended to create enforceable rights seem to completely ignore the structure of our federal system. As if now that the U.S. has entered into all these international obligations, we have ammunition to bring claims for what we consider human rights abuses. This is no different from the creation of substantive due process out of thin air--one takes a document that means A, and without even the pretense of an argument that it was intended to mean B, argues that it should mean B. Makes me want to say "Did you take con law?" (HPM)

On my final paper for my foreign affairs class last semester in which I argued that Medellin should lose his claim, I received a prelimary comment from my (pro-int'l law) professor that "[I] should consult with others on the merits of my federal courts arguments." What? Medellin IS a federal courts argument. The plaintiffs just aren't making it. Go read the oral arguments. Do you think the Justices care about whether it is a good thing for international comity that the United States flaunts the orders of the ICJ? No! Even Justice Kennedy told Medellin's counsel that he "[didn't] have a case."

Those who want Medellin to get deference to the ICJ need to explain how the U.S., which clearly did not delegate authority for the interpretation of U.S. law, should be found to have delegated it, and to require deference to that determination because it's bad to be in violation of a treaty. Also explain how we should give Hamdan a right of action where none was remotely intended and Sandoval completely precludes the finding of one. These, note, are federal courts issues, not international law issues.

Continue Reading "Hamdan and the Domestic Enforceability of International Law" . . .

Monday, July 18, 2005

The Chief and the New Justice

The Chief Justice will be staying put for the time being, he announced this past week. And the Washington Post is reporting that a decision on Justice O'Connor's replacement is likely to come this week, and not further down the line, as earlier thought. So, how does the Chief's announcement impact the President's choice for SOC's replacement? There could be two distinct ways in which it substantively effects the choice of a nominee.

First, without a second post to fill, the President may feel obligated now to nominate a strong conservative, like Michael Luttig, to the vacated post in order to appeal to the more conservative wing of the party and to keep the implied election promises that he made. If the Chief were stepping down, it could be that Bush could appease the right and moderate wings at the same time by appointing someone like Al Gonzales to be the Chief, and Luttig to the other vacancy. With The Post reporting that Gonzales' chances are fading, it appears that the Chief staying may have narrowed the choices which were available and made those choices more conservative. The Chief staying essentially leaves a 4-4 court, and the President might not need see as great a need to rush to have a full court seated. While 4-4 with a weak-kneed Kennedy is not ideal, it is more preferable than a 4-3 liberal split (If the CJ and SOC had left) or even a 4-4 split with the 4 conservatives including both Kennedy and O'Connor.

On the other hand, one could argue that the Chief staying should force Bush to nominate a more moderate judge, such as Gonzales or Edith Clement. This would possibly (though with Chuck Schumer manning the guns, probably not) avoid a bruising struggle and ensure that a full court was hearing cases come October.

I think in the end, the choice by the CJ to remain may not substantively impact the President's decision at all. The first reason is that Bush may have already been set on nominating a woman to replace O'Connor (starting a "female seat", much like the Brandeis seat once was for Jewish justices like Frankfurter and Goldberg - though I think technically Douglas took Brandeis' seat, it was in 1939, the same year Frankfurter came on the Court). The second reason is that the President may have been set on nominating a strong conservative anyway, but one without the "rough" edges that some may think Luttig has. Here, I would place two names, John Roberts first and Michael McConnell next. So in the end, it is quite possible that the Chief's decision has had no real substantive impact, but has only served to hasten the timetable for an announcement. My ultimate prediction is for the President to choose either Edith Jones or John Roberts.

Continue Reading "The Chief and the New Justice" . . .

Thursday, July 14, 2005

The Ticking Roe Clock

The absolute best, although entirely improbable, scenario for the Bush administration would be appointing replacements for O'Connor, Rehnquist, and Stevens that will all overturn Roe. Is there a point, and/or have we reached that point, where this is not a good idea?

Stare decisis is not mandated by the Constitution. It is, according to Justice Frankfurter, "a principle of policy." Not many people think, however, that precedent should play no role in constitutional adjudication. Robert Bork concedes in The Tempting of America that at some point a previous, incorrect decision may "have become so embeeded in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions, that the result should not be changed."

Bork thought in 1990 that it was too late to overrule the decisions validating the New Deal and congressional powers over commerce, taxation, and spending. Overturning those decisions would "overturn most of modern government and plunge us into chaos." Courts should avoid extending the powers of the federal government and may refuse, as the court did in Lopez and Morrison, to continue on its present trajectory. But the past decisions should stand.

Roe, however, in 1990 was still worthy of being overruled.

The question becomes whether it should still, even for originalists, be overruled. Bork thought (I assume he still thinks) that cases like Lochner and Roe never fall into this stare decisis trap. He distinguishes them from the more structural precedents associated with the New Deal based on their lack of "great disruption of institutional arrangements." Since the overall structure would remain in place, and the institutional result would just be a mad dash to the legislature, overruling these decisions comes at no great cost.

I wonder, though, whether the 30 year life of a constitutional principle doesn't at least offer some justification for not overruling the decision. Roe has, of course, been hotly contested for its entire life, and there is still a sizable portion of the body politic that wants its head. But at least some right to abortion is fairly ingrained in society. (Note: Lawrence is a completely different story, should be overturned tomorrow)

Consider the extension of the equal protection clause to gender equality. It seems, to me, far too late to overturn every gender discrimination case and retry them on Due Process grounds. It's equally too late to overturn Bolling v. Sharpe and the warping of the Due Process Clause of the Fourteenth Amendment. These seem, to me, indistinguishable from Roe.

What I'm searching for is a neutral principle for the application of stare decisis that overturns Roe but not the gender equality and incorporation cases. I know that T. More has an answer. . . . We're waiting . . .

UPDATE: Get a Stare decisis is fo' suckas t-shirt. (ht: Mike)

UPDATE II: By the way, an excellent article I should have initially noted is Henry Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum L. Rev. 723.

He poses the problem well:

"Because a coherent rationale for the intermittent invocation of stare decisis has not been forthcoming, the impression is created that the doctrine is invoked only as a mask hiding other considerations. As a result, stare decisis seemingly operates as a lightning bolt: on occasion it may strike, but when and where can be known only after the fact. A satisfactory theory of constitutional adjudication requires more than that."

His justification for Stare Decisis:

"[S]tare decisis operates to promote system-wide stability and continuity by ensuring survival of governmental norms that have achieved unsurpassed importance in American society.

Continue Reading "The Ticking Roe Clock" . . .

Wednesday, July 06, 2005

"Activists" and "Moderates"

. . . so goes the discussion over the upcoming nominee. Professor Balkin's recent post about activism has prompted another wave of discussion on this idea that the conservatives on the Court are more activist than the liberals. This has been done and redone, and I don't think anyone questions that it is, in fact, true that the conservatives on the Court strike down more laws than liberals.

But, as T. More's response to Balkin notes, this is an uninteresting point. Labeling someone an "activist" based on the number of statutes they strike down is meaningless, since the raw reversal rates say nothing about the nature of the statutes being struck down. Such a simple across-the-board figure is of little help in determining whether a particular Justice is true to his or her role as assigned by the Constitution. The reversal rates method speaks to some dischord between what the Court and what Congress think is constitutional, but it doesn't tell you which is right. The same Court would be activist with a Democratic Congress, but not with a Republican Congress, but it gives the term no neutral meaning to describe their jurisprudence

The word has been successfully muddled; it is, you know, "nothing but fluff."

We are told to prefer, instead, a "moderate." Hmm. Robert Bork discussed this recently in an interview regarding Justice O'Connor:

BORK: I think that referring to a moderate philosophy and a conservative philosophy and so forth is quite wrong. The question is, those judges who depart from the actual Constitution, and those who try to stick to the actual Constitution. She departed from it frequently. So I wouldn't call that moderate. I would call it unfortunate. But she is -- she is -- as a result, she often determined the outcome by swinging from one side to the other.
KAGAN: OK. Instead of looking back on Judge O'Connor, let's look forward. Whatever nominee, whoever is picked, whoever President Bush picks, they use your nomination process as an example of what they don't want to happen. A lot of people -- a lot of conservatives do wish that you had been confirmed and serving on the high court. Instead, it's been Justice Kennedy, who has been more moderate than a lot of people think.
BORK: I wish you would stop using the word "moderate." But go ahead.
KAGAN: Well, no. What would you use? How would you compare what Justice Kennedy has done instead of perhaps what you have done if you had been on the court.
BORK: I would call it activist.

Bork is, in my mind, absolutely correct. "Activist" and "Moderate" are the same thing, although I guess a moderate may be somewhat less of an activist. It's probably too late in the game to save the word "activist," but if it is to mean anything (since Balkin, et al.'s method is useless) it must mean what Bork takes it to mean--a judge who departs from what the actual Constitution tells them to do.

UPDATE: It keeps coming. Kim Lane Scheppele on Balkinization compares the amount of invalidation by our courts to courts of other countries and concludes with an explanation of why we think that our courts should do "very little." Again, "activism" doesn't (or at least shouldn't) be determined solely by the quantity of statutes struck down, but by what mechanism they are being invalidated. <

Continue Reading ""Activists" and "Moderates"" . . .

Judicial Activism vs. Judicial Activity

Over at Balkinization, Jack Balkin has posted another analysis of activism that finds the term wanting. I think that this trades on a failure properly to consider the role of the judiciary in our system, as what should be the "least dangerous branch." The judiciary is not meant to have legislative or executive initiative in our government; rather, it is meant to police the boundaries of the enumerated powers of the other branches by faithfully interpreting the laws especially in light of the Constitution which sets numerous internal and external limitations on the powers of the government.

I posted this comment in reply to Balkin:

I don't think much turns on the words, so I can agree with your conclusion. But I have always thought that the thing an "activist" judge does is not "something rather than nothing" but deciding cases contrary to the law. To be sure, the most egregious cases come when rights get made up out of nowhere (or out of emanations and penumbras, if you prefer); but it would be just as much activist for a court to refuse to protect individual liberties that have been constitutionally (or legislatively) protected out of a judge's own disagreement with the received law.

It is that arrogating to oneself the power to legislate that constitutes activism. That is why the whole notion of a living constitution is an activist one: well, of course the framers didn't protect reproductive autonomy, but they announced principles that we in our wisdom (because history only moves progressively--we're the most enlightened people ever, ipso facto!) can say today require this or that new right (Roe, Lawrence, etc.).

Thus, the Kelo court's decision was activist, and knowingly so, in relying on "evolving" circumstances that make "public purpose" a better clause than "public use", the one that is actually there. This is a conscious, explicit, "living constitution" kind of activism, and it results in allowing a law to stand. In a government of enumerated and divided powers, it is crucial that judicial humility result in the policing of Congressional and Executive power according to the enacted wishes of the legitimate lawgiver, not the evolutionary editing of judges.

To my mind, Justice Thomas's apparently limitless deference to the executive in matters arising in war constitutes activism (compare his opinion with Justice Scalia's in Hamdi, for instance). Again, that's "passivity" on Thomas's part in that he defers to the executive, but it is an activist pursuit of a take on the war power of the executive warranted by neither the text nor the history of the constitution as he usually applies those terms. {End}

To this I would only add that Balkin, led more by results than by rigorous analysis of the principles, I am afraid, fails to see what Henry Monaghan demonstrated clearly about Bush v. Gore, namely that it does not represent a threat to federalism properly understood, even though it involved a relatively rare review by the U.S. Supreme Court of state court determinations of state law. I would further add that much of the "cleaving" that Justice Thomas would do to existing laws and regulations I would support, as it would undo the activist abetting of unconstitutional lawmaking that prior courts had undertaken. That would be a lot of judicial activity, but it would not be activist. Thus, while Balkin properly notes a number of forms of conservative activity (such as its takings clause jurisprudence), to note such is not always to identify activism properly understood. Are conservatives sometimes activist? Of course. But we should be able to distinguish judicial activism (acting legislatively, for the most part) from judicial activity (carrying out the proper judicial function, which will involve striking down invalid laws).

UPDATE: I append also this comment I posted to clarify my reply to Balkin's point about Bush v. Gore (and his idea that Kelo is a betrayal of federalism for the conservatives): The reason for my raising this is that, as in the analysis of activism, where it is a mistake to assume that judicial review simpliciter constitutes activism, so also when it comes to federalism we should not presume there is an absolute deference owed to states by federalists, lest they open themselves to charges of selective application of principle. Both the meaning and application of activism and federalism admit of and require more nuance than that.

Continue Reading "Judicial Activism vs. Judicial Activity" . . .

Sunday, July 03, 2005

Against Some More Ridiculous Errors...

This fine Sunday morning I awoke in Washington, DC and after the celebration of the sacred mysteries (Catholic Mass for those not in the fold) I set about to watch our nation's most influential folks gab about the nomination process. In a spirit of charity and hope (influenced by the Mass) but also out of a desire to see the truth vindicted (id.), I offer the following reflections in no particular order:

(1) Sen. Schumer is playing with fire. He wants to say two things simultaneously: that ideology is grounds for opposition, presumably to the point of filibuster; and that President Clinton nominated Ginsburg and Breyer after consultation with Orin Hatch which is why they sailed through. But Orin Hatch did not hold the first of the two propositions, at least not robustly. The Republicans have had their share of bad behavior on judicial nominations over the years, but when it has come to the Supreme Court they have held their fire. Can anyone seriously claim that Ginsburg does not run afoul of what a "conservative" wants in a judge at least to the degree that Luttig would run afoul of liberal hopes? But, to that point, the Senate still respected that Presidential elections matter, and that, character and competence established, the President's Supreme Court nominees should be affirmed. If the standard is not that a John Roberts, an Edith Jones or even a Janice Rogers Brown cannot qualify, that will not bode well for the future.

(2) Did anyone in the media or elsewhere note that replacing Byron White with Ruth Ginsburg shifted the balance of the Court? Was this inappropriate then? Would it be inappropriate now, therefore, to put up somebody with a different philosophy than Justice O'Connor? This is among the sillier arguments employed by self-styled progressives to pretend that they did not lose the last election.

(3) Did Walter Dellinger, distinguished Professor of Law at Duke and Solicitor General under President Clinton, miss the first year course in Constitutional law? This morning, on the George Stephanopolous program, he opined that he could see no reason why a nominee should be permitted to avoid questions about pending issues before the court. How about several reasons, beginning with the Separation of Powers: how would it not undermine the independence of the judiciary to insist upon particular views about actual cases likely to arise before a person could join the court? Let's also try Judicial ethics: Judges (like Justice Scalia in the Pledge case) must recuse themselves from hearing cases they are thought to have prejudged; the judicial code of ethics has for years required that judges refrain from commenting on matters likely to come before their courts. And all nominees of both parties have under that principle refused to answer such questions. So for Constitutional and ethical reasons, Mr. Dellinger, it would be wise not to abandon this practice.

(4) Sen. Specter did not learn much from his behavior in the episode that made "Bork" a transitive verb. This morning on the same This Week program, he suggested that originalists like Bork could be outed in hearings for their extreme views. As an example, he argued that under the original meaning of the Constitution you would have to segregate the Senate, whites on one side, minorities on the other. Now, that argument is so completely ridiculous I don't even think Ralph Neas would make it--but it comes instead from the Republican Chairman of the Senate Judiciary Committee. It's rather depressing to imagine that such things can be said. It truly is not possible that Specter believes what he said. Why did he say it? He's very hurt and angry that conservatives have not forgiven him for what he did to Bork. This comment by him suggests that conservatives are apparently correct not to have forgiven or forgotten, since he has not repented from the shameful canard that originalists are somehow opposed to civil rights, in favor of racism, and, when they get the chance, like to kick cats.

(5) There is very little hope to imagine that the media will cover this as anything other than just another political appointment, and will discuss only the results that nominees have voted for or would vote for. This is how the Senators will discuss it, this is how the activist groups will pitch it, and there is little hope that the journalists will not follow their lead.

(6) As depressing as all of the foregoing can be, tomorrow is July 4, and as such an occasion to reflect that we are passionate about this because we love the country, the Constitution, the freedoms we enjoy, and system that brought most of ancestors here yearning to breathe free. Happy Independence Day!

Continue Reading "Against Some More Ridiculous Errors..." . . .

Friday, July 01, 2005

Justice O'Connor and the Pragmatist Movement

We at Ex Post have, at times, not been kind to Sandra Day O'Connor. Her jurisprudence, although often if not mostly coming to what many of us think is the "right" conclusion, worked to aggrandize the role of the Court in a way that will be perhaps most clear in the weeks and months to come as political opposites fight to the death over who the next philosopher king will be. What has become known as "judicial pragmatism," a softening of the mandates of the text and history of the Constitution when faced with seemingly unreasonable outcomes, has corrupted the neutrality of the law and brought the country's confidence in the Supreme Court to an all time low.

Justice O'Connor's role in this revolution has, perhaps, been even more sublime than one might think. Pragmatism has worked some ridiculous results such as relying on treaties the U.S. expressly refused to sign, making up constitutional doctrines, and throwing out direct precedent. But the O'C is not associated with any of these deeds.

Instead, her version of pragmatism has been more in the vein of Judge Posner, although without the economics. The two of them produce opinions the result of which people generally find sensible--most people probably agree with her most of the time. What this has to do with interpreting a Constitution is still a mystery to me, but at least she's not out of touch with reality as the "hopeless four" seem to be.

What this may or may not have done is garnered considerable moderate and conservative support for the idea of pragmatism because the outcomes are often or mostly sensible. She is a figurehead for the politically conservative/jurisprudentially liberal demographic--a group whose focus is the views of the judge and the virtue of the outcome rather than reliance on structure and text. This group is playing with fire with names like Gonzalez and McConnell who both have some appealing views but are not necessarily committed to the text and history of the Constitution.

I hope that this influence has not been successful enough for those who have less trust in the structure of the Constitution than they have in 9 lawyers to support a new Justice whose supposed political views or party affiliation they share. I suspect that the Souters and Kennedys have made it clear enough that this is a bad idea.

Continue Reading "Justice O'Connor and the Pragmatist Movement" . . .

More than one case at a time now?

I come neither to praise nor to bury Sandra Day O'Connor. She obviously had a remarkable and influential career in the law, including a highly influential period of time on the highest court in the land.

I'm not an expert on her jurisprudence, but I will say that her critics from the right were probably too harsh on her, and her admirers among self-styled "progressives" were probably too kind to her. In the area of state sovereign immunity, federalism, and even, with Kelo as a late datum, property, O'Connor should have been largely pleasing to conservatives. Midkiff, however much one might disagree with her distinguishing of it in Kelo, was obviously for her a kind of one-off predicated upon the unique factor of the extraordinary maldistribution of land in Hawaii.

At the same time, her decision in Casey was spectacularly disappointing, and in Stenberg so much the more so. For those of us, who, like me, think foetuses are human beings (gosh, I was once a foetus, and never a salamander, and always a human--however salamanderlike I may have looked at the formation of the primitive streak) this was an extraordinarily non-progressive decision, a setback for human rights, and most importantly totally unwarranted as a matter of the meaning of the Constitution. That stare decisis should have been held decisive in the denial of the right to life (Casey) but not decisive in the denial of a right to homosexual sodomy (Lawrence, though to be fair O'Connor would have held off from overturning Bowers) does not leave me excited about Justice O'Connor's tenure on the court, at least as measured by the central human rights challenge of our times (yes, even bigger than Darfur, which is very, very big).

As a general comment about her jurisprudence, it will come as no surprise to regular readers of this blog that, whenever (and it was often) Justice O'Connor and Justice Scalia disagreed over whether the Court should prefer "rules" (which she always regarded as "rigid") or "careful balancing of case-by-case facts", I sided with the rigid rules of Scalia. The latter approach, generally framed by its defenders (such as Cass Sunstein) as being a sort of modest jurisprudence, was in fact the opposite. By refusing to announce clear rules and dispense with cases on the basis of clear principles, the muddled moderation that characterized much of O'Connor's jurisprudence amounted to an aggrandizement of the Court's authority, and resulted in uncertainty for parties in a variety of cases. For a court that refuses to increase its caseload despite having four times the clerks it once had, it is not very consoling to hear that the decisions made are "case by case" and "carefully balanced on the facts before the court." They are really not there to spend all day with detailed fact patterns. If that is what they want to do, they should take 8,000 cases a year, rather than 82. Given the unlikelihood of that event, better to announce rules, and better also to stay out of certain areas of national life altogether.

Nevertheless, I am grateful for O'Connor's decision in Bush v. Gore, which as Henry Monaghan noted in his article on the matter for the Columbia Law Review was correctly decided and part of a routine line of cases "second guessing" state supreme court determinations of state law, and for her resignation from the Court when there is a chance that a person who respects the text and history of the Constitution might be appointed in her stead.

Continue Reading "More than one case at a time now?" . . .

The fight to come...

Sandra Day O'Connor will retire. Bill Kristol must have had an inside source to get his scoop. Perhaps we should get an independent counsel to investigate who leaked.

Prediction: the confirmation battle over a successor to Justice O'Connor will not be pretty.

I would guess that it also seems more likely now (though probably still a longshot) that President Bush will decide to appoint Alberto Gonzalez, a moderate, for this vacancy. But even a Gonzalez appointment would not be without its controversies: expect to hear about "torture" memos if this indeed comes to pass. The other possibility is either Edith Jones or Edith Clement. I suspect that Judge Luttig's chances of getting this spot are not as good as his chances would have been of filling the Chief's spot.

Continue Reading "The fight to come..." . . .

Tuesday, June 28, 2005

My Soon To Be Favorite Hotel

Randy Barnett blogs that someone upset about SCOTUS's decision in Kelo has proposed to use eminent domain to build a hotel called the Lost Liberty Hotel on Justice Souter's house. Read the press release here and the faxed memo to the town's board here.

The hotel plans to include a museum featuring a permanent exhibit on the loss of freedom in America. In lieu of the complimentary Gideon's Bible each guest will receive Atlas Shrugged.

This is by far the most creative protest to Kelo yet. I would add only two additional features to the proposed plan. First, the hotel should be modeled after Independance Hall (see picture to the right). Second, every person should also receive a free copy of the U.S. Constitution (even though in the future it will just represent marks and have no meaning in a Legal sense).

UPDATE: After listening to a bunch of commentators debate whether such a project was appropriate or just retaliation I've changed my mind..... the hotel should be modeled after Kelo's own home. But in all seriousness, the appropriate channel was that taken by Senator Cornyn when he introduced the The Protection of Homes, Small Businesses, and Private Property Act of 2005. The PHSBPPA can only constitutionally govern municipal takings that use federal funds under the Spending Clause, but this sends a strong statement to SCOTUS. I wonder if we are going to see another City of Bourne case, where SCOTUS overturns an act of Congress that sought to overturn SCOTUS's interpretation of the Constitution?

Continue Reading "My Soon To Be Favorite Hotel" . . .

And Speaking of Leiter and Originalism

In my post the other day on Kelo, I made parenthetical reference to some points raised by Prof. Leiter about originalism here. I'd like to treat them a bit more fully and fairly here. Prof. Leiter professes some befuddlement that concern for original meaning is "dominant" in the legal world today (gosh, I hadn't noticed that myself, to be honest). But his befuddlement is rather befuddling to me. He puts his critique thus:

Why is what the framers thought even relevant? They left us a text, written with words that have meaning, sometimes contestable, sometimes clear. It would take a principled explanation as to why we are bound by anything more than that text and its words. But originalism is the pathology of our current constitutional culture, so deeply embedded that the quasi-liberals and those on the left genuflect before it.

My befuddlement is this: I would have thought it obvious that if one were bound by some prior person's text that the boundaries of one's boundedness should bear some necessary relationship to the meaning the text had at its creation. I would think the burden is on the anti-textualists, anti-originalists to explain why we should be bound by "words" but not by meanings. Leiter wants it the other way round: he'll happily (why?) grant that we might agree to be bound by the written document but he won't admit that that has gotten us very far, since we need a separate agreement to figure out what the markings on the page mean.

I thought perhaps I hadn't recently enough boned up on the philosophy of language, and that my fusty notions of the relationship of the rule of law to written laws were hopelessly outdated. So I consulted a friend of mine who teaches philosophy and has published recently and to some acclaim on the topic of the philosophy of language. He had this to say:

Difficult to know what to make of such. Without meanings, there are no such things as words. There are such things as burps, sighs, guffaws, and such. But sound lacking meaning is just sound signifying nothing. So I find it difficult to affirm his thesis when we reflect upon it for a moment: it is important that we keep the markings on the page of written laws but not the meanings. What does that mean? "markings on the page of written laws." How can we have written laws that consist merely are markings on a page? O.k. Maybe "it is important that we stick to the markings on the pages of things that used to be written documents enunciating laws." I can understand that thesis. But I cannot imagine what legal theory would affirm the importance of keeping to markings on a page.

I think that gets things about right. And it reminds me why I'm happy that we've written laws, and why I'm sad when professors and judges pretend that somehow we need deep accounts of why we write things down. Judging is not easy, and it is not mechanical--we need human judges, not scantron machines, deciding cases. But we shouldn't pretend that the difficulty of judging follows from something more recondite than the ordinary difficulty of bring even the clearest of principles to complex cases; in particular we need not pretend that it follows from some trendy observations about the hopeless incapacity of language to convey meaning, an incapacity that can only be cured by clever professors and liberal judges who will free us from a puerile attachment to what the words somebody bothered to write down might have meant when they were written.

Two other points, in fairness to Prof. Leiter. First, he links to a paper by Andrei Marmor which he claims furthers his argument. The problem is that Marmor's paper is all about the difficulty of figuring out "framer's intentions" which is not what most textualists/originalists purport to be interested in. We purport to be interested in the meanings of written words--it's why they were written. That's not always easy, and even when we have a clear meaning it can be hard to apply it. But that's not because meaning itself is somehow illusory or intractably impossible to fix. If that were so, Profs. Marmor and Leiter would probably not be so optimistic as to write as many things down as they both do!

Secondly, Prof. Leiter attempts to attend to this distinction in an update toward the end of his posting. But while he posits that one can sever "constitutionalism" (it's not clear how one should treat unwritten constitutions, such as the British have, in this analysis) from "originalism," he never explains why one would do so. He then repeats his demand for a "principled" case for being bound by the original meaning. The principle is inherent, though, in writing laws down in the first place--it is the principle that the law (not any given human being, such as a judge or a chancellor or a prince or a Guardian) is the rule. Originalism is all about the rule of law. And it is simply not intelligible to speak of the law ruling when (a) the law is written but (b) the meaning of what was written bears no necessary relationship to its future application. One need not have naive optimism, again, about the ease of interpretation to be committed to the simple notion that in attending to a written text one should attend to what the meanings of the words were when the text was written, in order to understand the thing. And the burden should be on Leiter to explain WHY one would have any commitment to a written Constitution but NOT a commitment to fixed "meanings."

Continue Reading "And Speaking of Leiter and Originalism" . . .

Balkin, Leiter, and Responsible Analysis

Well, my blood pressure this morning got more than just its usual caffeine jolt, since yesterday's 10 Commandments opinions gave the calm and responsible Profs. Balkin and Leiter a chance to bash Justice Scalia as a bigot once again. It's so easy to bash people when you get quote them selectively and hope nobody will bother to check the source.

For instance, Prof. Leiter characterizes yesterday's opinion thus: "Scalia to Atheists: Drop Dead!"--which overheats the already unjustifiably overheated rhetoric he links to over at Balkinization. Of course, it would be less sexy to quote Scalia accurately, and it would fail to show him to be a religious bigot or fanatic, so quotation in such matters, accurate quotation, just won't do for Prof. Leiter.

But let's move from Texas to the Yale Law school, where the noted Prof. Balkin gets all huffy about Scalia's mysteriously lumping together Judaism and Islam with Christianity in positing that the original meaning of the Establishment Clause permitted invocations of God consistent with monotheism in general but not invocations consistent only with Chrsitianity in particular. Prof. Balkin professes to be quite perplexed by this, and seems to suggest that Justice Scalia just gives us no help at all in understanding the problem. Well, perhaps the printers were clogged up at Yale, or they are saving paper and printing only every other page of opinions by the textualist Justices or something. Because surely if Prof. Balkin had read this argument, for instance, he would not pretend it did not exist:

Justice Stevens also appeals to the undoubted fact that some in the founding generation thought that the Religion Clauses of the First Amendment should have a narrower meaning, protecting only the Christian religion or perhaps only Protestantism. See Van Orden, ante, at 20â€”22. I am at a loss to see how this helps his case, except by providing a cloud of obfuscating smoke. (Since most thought the Clause permitted government invocation of monotheism, and some others thought it permitted government invocation of Christianity, he proposes that it be construed not to permit any government invocation of religion at all.) At any rate, those narrower views of the Establishment Clause were as clearly rejected as the more expansive ones. Washingtonâ€™s First Thanksgiving Proclamation is merely an example. All of the actions of Washington and the First Congress upon which I have relied, virtually all Thanksgiving Proclamations throughout our history,5 and all the other examples of our Governmentâ€™s favoring religion that I have cited, have invoked God, but not Jesus Christ.6 Rather than relying upon Justice Stevensâ€™ assurance that â€œ[t]he original understanding of the type of â€˜religionâ€™ that qualified for constitutional protection under the First amendment certainly did not include . . . followers of Judaism and Islam,â€ Van Orden, ante, at 22; see also ante, at 32â€”33, I would prefer to take the word of George Washington, who, in his famous Letter to the Hebrew Congregation of Newport, Rhode Island, wrote that,

â€œAll possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.â€ 6 The Papers of George Washington, Presidential Series 285 (D. Twohig et al. eds. 1996).

The letter concluded, by the way, with an invocation of the one God:

â€œMay the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy.â€ Ibid.

There is nothing at all mysterious about Justice Scalia's position: it is clear from the historical record that the Framers simultaneously (1) rejected establishment of religion; (2) rejected official associations of the government with Christianity; and (3) embraced official expressions reflecting belief in a single God. Now, so far as I can see, Professor Balkin nowhere challenges the facts as adduced by Justice Scalia. What he does do is omit some of them. Then he tells us that Justice Scalia's opinion amounts to this:

And there you have it. If you aren't a monotheist who believes in a personal God, the government may disregard you. You don't count. We won't persecute you, of course, that would violate the Free Exercise of Religion. But we can disregard you. You are insignificant. You are not us, or perhaps more correctly, we count you as part of us when government acknowledges God, and disregard your protestations to the contrary that you have been left out.

Now, I challenge anyone to read fairly the two paragraphs quoted by Balkin immediately prior for anything like support for that characterization of Scalia's position; you won't find it anywhere in the opinion, in fact. The "disregard" Scalia writes of is simply that it was clearly seen as permissible by the Framers to reflect belief rather than non-belief despite the lack of unanimity. That's not "drop dead" and it's not "you are insigificant." It's, "we can't reflect all views all the time, and so long as we don't establish a religion, we will not eschew all religious talk." But that accurate portrayal of Scalia's views would be far less exciting, and hardly worth bashing.

Nor will you find Prof. Balkin explaining how it is that when the government reflects in some official way a generally theistic worldview it either makes "second class" those citizens who disagree, or how it in any way amounts to an "establishment" of religion. Now perhaps it would be a better world if the sensitivities of non-believers were catered to by never making an official utterance that reflected that most people disagree with them. But that's not what was supposed to be at issue yesterday. What was supposed to be at issue was whether the First Amendment itself insists upon such a world.

If the two Professors have any arguments to that end I'm all ears. But to the extent that they have to mischaracterize and demonize what was written yesterday in the fashion seen in these posts, I think I shall be waiting in blessed silence for a long while before I hear such arguments.

Continue Reading "Balkin, Leiter, and Responsible Analysis" . . .

Monday, June 27, 2005

Supreme Changes?

Today will end the 2004-2005 Term at the Supreme Court. It may also be the day when Chief Justice Rehnquist steps down after 33 years on the bench. He has presided over an era of struggles over the Courtâ€™s faithfulness to the text and principles of the Constitution. If a vacancy does open up, one thing is for sure both the Left and Right are ready to battle. Organizations all over are geared up for the nomination battle. The media is hyping it like we are on the brink of Armageddonn. But as I glanced over SCOTUSBlog's voting statistics for this past term, I realized that there is not going to be a Supreme Change if WHR retires. WHR is as conservative as anyone on the court. In fact the voting statistics showed that WHR disagreed with the "Liberal Four" more than any one else.

Disagreed with JPS DHS RBG SGB Avg.

WHR 43% 37% 35% 30% 36.25%

CT 38% 35% 36% 32% 35.25%

AS 36% 31% 31% 28% 31.50%

AMK 31% 26% 24% 19% 25.00%

SOC 28% 24% 27% 18% 24.25%

So if WHR is replaced by a conservative justice, the right only maintains its position. It really has nothing to gain. However, if a AMK or SOC like justice is nominated and confirmed, then the left can gain some serious ground. The right knows this and will likely nominate a conservative justice to replace WHR. This means that the only real significant change we will see with WHR's replacement (if there is one) is that each term one more lucky law student will be a SCOTUS clerk (WHR only hires 3 clerks per term instead of 4 like every other justice).

Update: Even though WHR did not announce his retirement at today's session, he may still retire today as Lyle Denniston points out here in the more traditional off-the-bench press announcement.

Continue Reading "Supreme Changes?" . . .

Sunday, June 26, 2005

The Scalia-Thomas crystallization

The October 2004 term may be remembered for the many important cases decided, including Kelo, Raich, Roper and Booker. It may be remembered as the last term of William Rehnquist's long and distinguished career as a jurist. It may be remembered as the end of a minor conservative jurisprudential counter-revolution: Whither Nollan and Lucas (property rights)? Whither Lopez and Morrison (enforceable commerce power limits)?

But in addition, this term is significant for the insight and crystallization it has provided us in understanding Justice Thomas and Justice Scalia and how they differ. From this term on, the old liberal tag for Justice Thomas as Scalia's "pet" must be discarded. In particular, four decisions provide a window into the differences: Raich, Kelo, Granholm v. Heald and Cutter v. Wilkinson. Please note, I do not intend this post to be a comprehensive analysis, but merely perhaps a prelude to further analysis and discussion.

In Cutter, Justice Thomas wrote separately to express his opinion that the First Amendment's establishment clause was understand originally as a "federalism" provision.

The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion." Amdt. 1. As I have explained, an important function of the Clause was to "ma[ke] clear that Congress could not interfere with state establishments." Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 50 (2004) (opinion concurring in judgment). The Clause, then, "is best understood as a federalism provision" that "protects state establishments from federal interference."

Justice Scalia did not sign on to Justice Thomas' opinion, and one can probably guess why: Thomas' vision would have dramatic impact upon the current understanding of establishment, and would overturn almost all modern precedent. Thomas' contention that "Congress presumably could not require a State to establish a religion any more than it could preclude a State from establishing a religion" is simply a step further than Scalia, no fan of the Lemon test or the "wall of separation", is willing to go. It will be interesting to see the opinion tomorrow in Van Orden. I predict that both justices will vote to uphold the displays in both cases, but perhaps in slightly different ways. While neither will agree with an Breyer split-the-baby approach or with O'Connor attempting to uphold the Commandments as "secular" symbols, I suspect they may write separate opinions in the cases.

The split in Raich was undoubtedly more complicated than mere precedent. Scalia noted in oral arguments that he thought Wickard a silly case, so to some extent, it probably did come down to whether the aggregation principle ought to carry the day and whether Wickard was still viable. But more than that, I would suggest its reality of modernity that leads to the ultimate split. Justice Scalia's originalist credentials ought not be dismissed, but at base, his principles are more of a guidebook, whereas for Thomas, originalism is, well, a commandment. Justice Scalia has always said that there must be pragmatist exceptions to his principled stands, stare decisis being one. Perhaps a recognition that, even more so than in Wickard's time, the market for most goods and services does not and cannot exist in a vacuum within a single state, leads to his position in Raich. Thus, the necessary and proper argument carries the day, because if the power of Congress reaches to the ability to restrict the drug trade, and to "schedule" drugs (T. More has suggested to me that the first may be within its power, the second perhaps not), how can they not also have the concurrent power to make their regulation effective. Scalia's argument may, of course, suffer from the thing he hates (in jurisprudence): evolution. As the underlying power expands, does it follow that the N&P; power expands with it? In the end, Thomas retreats to an easily defensible position: even the framers knew that markets were inter-connected, but they didn't envision Congress would have the power to reach all conduct no matter where and how tenuously connected to commerce (this of course may have somet connection to their outcome in the Granholm/Swedenburg case. One can't say all the reasons they end up on different sides, but Raich certainly shows us their differences front and center.

Kelo has been the subject of extensive discussion, and while it seems clear that Scalia is a strong defender of private property rights, he did not sign onto Thomas' forceful originalist dissent. Is this the Oakeshottian conservatism again rearing its head?

Finally, the Granholm v. Heald wine-shipment cases provide a very interesting forum for brief analysis. Justice Scalia votes with the majority without an opinion. He obviously believes this to be a straight-forward case of discrimination against out-of-state interests, and he thinks the laws should be invalidated. He was apparently not convinced by Justice Thomas' further argument (a dissent Stevens labeled as persuasive and comprehensive) that even assuming discrimination, the

Webb-Kenyon Act and the Twenty-first Amendment cut off this intrusive review, as their text and history make clear and as this Courtâ€™s early cases on the Twenty-first Amendment recognized. The Court today seizes back this power, based primarily on a historical argument that this Court decisively rejected long ago.

Justice Thomas thought the majority opinion played fast-and-loose with history, arguing that the cases decided closest to the Twenty-First amendment were consistent with his view, and that only the more modern case of Bacchus supported the majority's reasoning. Thomas also noted that while the court pointed out some good policy reasons, "The Courtâ€™s focus on these effects suggests that it believes that its decision serves this Nation well. I am sure that the judges who repeatedly invalidated state liquor legislation, even in the face of clear congressional direction to the contrary, thought the same." The majority opinion in this case again seems to presuppose the need for uniform markets, much like Raich, while Justice Thomas again retreats the the dual sovereignty position that even in an age of uniform markets, states have significant powers to regulate their own citizens' access to these markets. In terms of Dormant Commerce Clause, I suggest we also look to the short separate opinions of Thomas and Scalia in the American Trucking case this term. First Justice Thomas:

I would affirm the judgment of the Michigan Court ofAppeals because "[t]he negative Commerce Clause has nobasis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application," Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 610 (1997) (THOMAS, J., dissenting), and, consequently, cannot serve as a basis for striking down a state statute. Hillside Dairy Inc. v. Lyons, 539 U. S. 59, 68 (2003) (THOMAS, J., concurring in part and dissenting in part).

Now Justice Scalia:

...I agree with the Court that this fee does not violate the negative Commerce Clause. Unlike the Court, ante, at 3â€“4, 8â€“9, I reach that determination without adverting to various tests from our wardrobe of ever-changing negative Commerce Clause fashions: the balancing approach from Pike v. Bruce Church, Inc., 397 U. S. 137 (1970), the four-factor test from Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977), and the internal-consistency test from cases such as American
Trucking Assns., Inc. v. Scheiner, 483 U. S. 266 (1987). Instead, I ask whether the fee "facially discriminates against interstate commerce" and whether it is
"indistinguishable from a type of law previously held unconstitutional
by this Court..."

I cannot hope to truly analyze the distinctions between these two distinguished jurists in this small space. I only hope to point out that this term perhaps more than any other in recent memory has seen the two most "conservative" justices on the courts often on different sides of important issues. The consequences of, and even the reasons for, such differences, are beyond this simple blogger. But for those who thought, and still think, of Justice Thomas as a mere "lapdog" without his own brain or jurisprudential style, the 2004 Term must call for a reassessment of this shallow understanding...whither Harry Reid?

Continue Reading "The Scalia-Thomas crystallization" . . .

Kelo discussion continues at SCOTUSblog

There are many great new posts, and even more promised to come.

Also, since we'll see Grokster and the Ten Commandments cases tomorrow, here are the links to those SCOTUS sub-blogs:

the Grokster sub-blog at http://www.scotusblog.com/discussion/archives/grokster/index.html;

the Ten Comamndements sub-blog at http://www.scotusblog.com/discussion/archives/ten_commandments/index.html.

and, the Kelo "sub-blog" at http://www.scotusblog.com/discussion/archives/kelo/index.html;

Continue Reading "Kelo discussion continues at SCOTUSblog" . . .

Saturday, June 25, 2005

Stare Decisis & Persuasion

I finally had a chance to read Justice Stevens's very persuasive opinion in Kelo. It is persuasive in a couple of refreshing ways: it is honest enough to admit that the meaning applied in this case to a 200 year old clause is but "100" years old. Who would not admit that, once we converted "use" to "purpose" (without changing that pesky text, which, as Brian Leiter recently noted in a bizarre rant on originalism, is just there so we have "words"--not so we have "meanings"; thus, when we make those stubborn old words take on new meanings, we get the constitution we want and a nice piece of harmlessly antique verbiage...everyone's a winner!) it does not make sense to read the "words" as written? Heck, for all you know, these little "words" you are reading are actually a paean to non-originalist jurisprudence! (Or do you think you espy meaning here, you dogged originalist!)

It is persuasive, therefore, that you if you are willing to give up on the original meaning then you can find your way to the novel meaning; further, if the novel meaning is very broad, then it can even be broad enough to encompass this "Sam's Club"-sized version.

But this raises for me a curiosity. The majority opinion goes to great pains to note that it is not for courts to do the sort of policy analysis that underlies the legislative judgments involved in seizures of this sort. Yet both to account for the original shift from the "narrow" view of "use" as "use" to the "more natural" view of "use" as "purpose" (!!!--you can't make this stuff up, folks) and to account for its inexorable widening over the years, Justice Stevens (perhaps to satisfy the niggling qualms of those, like my stubborn self, who don't "naturally" read "use" and understand "purpose") shares with us that the "evolving" nature of society has rendered this less "narrow" "reading" necessary.

Hmmm. That sounds less in the nature of interpretation, and more in the nature of a policy judgment. Indeed, as I have written elsewhere on this blog, the doctrine of stare decisis seems to me essentially pragmatic (and therefore ineluctably policy-oriented). Stare decisis needs to be invoked when nothing else justifies a particular reading of the constitution. But we know from, say, Lawrence v. Texas, that certain members of this majority (all of them) don't think of stare decisis as always applying. Therefore they need some reason, it seems to me, for sticking with the original error. And if the reason is some sort of "evolving" necessity, then saying that courts can't judge of the practical details beyond a mere "rational basis" (or there's the "rational basis plus not-a-sham" test of Kennedy's concurrence) standard strikes me as an utterly question-begging approach.

So we have the Court acknowledging that (a) its reading of the text, though "natural" has only been so for 100 years; and (b) that that reading is supported by practical judgments about "evolving" needs; and (c) the constitution, whose "words" do not constrain these evolving needs (nor, it appears, evolving meanings) does constrain judges from thinking too hard about them. It would seem that the court is permitted to think only superficially about whether changing needs have changed the meaning of the Constitution, and then defer to a minimally rational legislative judgment. But, fusty ol' me, I thought it was "emphatically" the "province and duty of the Judicial Department to say what the law is"...

Are you persuaded?

P.S. I had some thoughts about how this hundred-year old novel reading of "use" as "purpose" has the air of collectivism about it. But that might suggest that such a reading partakes of a kind of domestic "socialist revolution." And that would put me in league with the likes of D.C. Circuit Judge Janice Rogers Brown, and I eschew such radicalism. So I'll keep those thoughts to myself.

Continue Reading "Stare Decisis & Persuasion" . . .