Judicial activism

Presumed Constitutionality

Attorney General Holder answered the Fifth Circuit’s odd letter of concern with a statement supporting the notion of judicial review — obviously — but noting that a presumption of constitutionality attaches to acts of Congress, except in rare cases. Conservative sites spin this as surprising, and a pitch to Justice Kennedy. It’s… not. Unless laws implicate fundamental rights, or classify on the basis of a suspect class (race), they are presumed to be constitutional. To the extent that this is an answer to Justice Kennedy’s question about the government’s “heavy burden,” it’s uncontroversial, and one he’ll be expecting.

In Partial Defense of David Dow: Maybe Don’t Impeach the Five

On the Daily Beast, Professor David Dow — a brilliant man and storied advocate against the death penalty — argues that President Obama should consider impeaching Supreme Court justices, if the Court votes to invalidate the individual mandate. I respectfully disagree: for one, even if Thomas Jefferson considered the same, Jefferson was a bit of a wild card when it came to the Court. His many letters against Marbury v. Madison are regularly quoted by conservatives as proof that judicial review is contrary to the Constitution, even though his  clearest expression of this sentiment was motivated by partisanship, and also clearly wrong (Marbury‘s explication of judicial review is holding, not dicta). And, impeaching a justice for voting the wrong way would be a more blatant and extreme assault on the Court’s legitimacy than the right has ever even contemplated. Justice O’Connor is right on this point. To the extent that we want to pick a fight with the Court at all, we should limit the fight to the justices, not the institution. Impeachment implicates both.

Separately, though, Professor Dow’s explanation of the mandate’s constitutionality is (especially by incorporating Akhil Amar) one of the best I’ve read yet, and clearly prevails over his detractor, a writer who actually refers to an article by Ann Coulter as “eye-opening.” Indeed. Oh, and, full disclosure — I was once took a class taught by Professor Dow, an equal protection seminar at Rice in 2005. The man is a genius, and a rough grader. He gave me a B+, I think, and I was happy to get it.

Image stolen from here.

Library Voices, “Traveller’s Digest“

Lochner’s Role in Framing the Individual Mandate

The Volokh Conspiracy and Wall Street Journal both take issue with President Obama’s clarification of yesterday’s remarks, in which he makes clear that he has no issue with judicial review writ large — only with any Supreme Court decision that would review economic legislation with something less than heavy deference. The Journal:

The full name of the case, Lochner v. New York, should be a sufficient tip-off. In Lochner the court invalidated a state labor regulation on the ground that it violated the “liberty of contract,” which the court held was an aspect of liberty protected by the 14th Amendment’s Due Process Clause….

Lochner, which was effectively reversed in a series of post-New Deal decisions, did not involve a federal law–contrary to the president’s claim–and thus had nothing to do with the Commerce Clause, which concerns only the powers of Congress.

But the state/federal distinction is irrelevant to President Obama’s explicit point — that a decision against the mandate would be the first in almost a century to limit Congress’ authority to regulate economic markets — and his implied point, that using “economic freedom” as an argument against economic regulation is simply a dead issue, and has been since (yes) the 1930s. From West Coast Hotel v. Parrish, 300 U.S. 379 (1937):

The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.

And restated in the federal context, in upholding the Civil Rights Act of 1964:

Thus the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce. One need only examine the evidence which we have discussed above to see that Congress may – as it has – prohibit racial discrimination by motels serving travelers, however “local” their operations may appear.

Nor does the Act deprive appellant of liberty or property under the Fifth Amendment. The commerce power invoked here by the Congress is a specific and plenary one authorized by the Constitution itself.

And again in a companion case:

 But where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.

In other words, the notion that substantive due process creates a right to be free from reasonable economic regulation is dead. This was the President’s point. Whether it died on a battlefield reserved for state-vs.-federal conflicts, or intra-federal system conflicts, is irrelevant, because wherever the “right” died, it can no longer take either field. If the Supreme Court limits the Commerce Clause on the basis of some right to “economic freedom,” it will be new, it will be groundbreaking, and it will be a throwback to the pre-1930s era.

Make This Election About the Court

With last week’s arguments safely behind us, President Obama has taken the first steps towards spinning the case, saying:

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law what was a strong majority of a Democratically elected Congress.

I’d just remind conservative commentators that for years all we’ve heard is that the biggest problem is judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, here’s a good example.

Naturally, right-leaning sites are reporting and commenting on only the first paragraph, to paint the President as an out-of-touch hypocrite, unable to draw the distinction between good “activism” (Boumediene on CSRTs) and bad “activism” (ObamaCare). This is a line of attack the President can avoid — even though he shows no signs of taking any steps to avoid it — by making this election about first the members of the Court, and not its powers.

A decision invalidating the individual mandate would be unprecedented, but not for the reasons President Obama identifies. It would be unprecented as the very first time, ever, that the Supreme Court invalidated a congressional attempt to regulate an economic market under the Commerce Clause. Ever. It would also represent the first time since the New Deal that the Court stood directly toe-to-toe with a President over the centerpiece of his domestic agenda. That didn’t end so well for the Court last time — President Franklin Roosevelt waged an unrelenting war on the Court’s legitimacy, leading them to ultimately repudiate a vision of the Due Process Clause that barred even workplace safety rules — and it’s time for President Obama to take a page from that book.

With decision after decision in the last few years, the Court has managed to tip so far to the right as to steadily erode its legitimacy as an apolitical actor. D.C. v. Heller – which “found” for the first time a constitutional right to bear arms — was probably legally correct, but still a bolt from the blue. Citizens United wrote Mitt Romney’s laugh line (“Corporations are people, my friend!”) into the U.S. Reporter, surprised legal commentators, garnered stern presidential rebuke, sparked Occupy Wall Street, and launched a prolonged campaign of public ridicule. And just yesterday, the Court held that police may constitutionally conduct strip searches for any offense. I don’t actually know the law on that last bit, but (momentary conservative doublethink notwithstanding), Fourth Amendment freedom from absurd search protocols seems to have, magically, become a valence issue, adored by both right and left. What I’m getting at is, if the Court were trying to alienate voters, they could hardly do a better job of it.

President Obama’s challenge is to channel that outrage, through an issue where public polling is considerably murkier, into generalized bipartisan concern for the Supreme Court’s doctrinal dalliances. He needs to paint any adverse ObamaCare decision — or any thin margin on a decision upholding the Act — as a sign that, regardless of what anyone thinks about the constitutionality of the mandate itself, the Court has become unhinged from constitutional reality, and simply started handing down decisions based on the members’ political preferences. ThinkProgress has the right idea; and we might also note Justice Thomas’ wife’s heavy involvement with the Tea Party. This is a message that can work, if carefully crafted and skillfully deployed. But over the course of the past three years, that’s a combination this White House hasn’t managed to pull off, ever.

Originalism and Judicial Restraint, Incompatible as Applied

Public Discourse prints a problematic defense of originalism as a mode of constitutional interpretation, occasioned by a recent book by Judge Wilkinson of the Fourth Circuit, who candidly admits to its shortcomings. Per Gregory Sullivan, originalism shares none of the subjectivity of competing constitutional ideologies, and so should be above reproach:

Whereas Brennan, Ely, and Posner advance theories that inevitably result in judicial supremacy . . . originalism is the only interpretive approach that most consistently will restrain the Court. While Wilkinson is right about one criticism of originalism—its glib and often erroneous use of historical materials—this is a problem that is an abuse of originalism, certainly not its essence. In a fallen world, even a sound doctrine is open to such abuses.

First, I question the seriousness of any commentator who readily drops dog-whistle phrases like “judicial supremacy.” And in this case, caution is well-founded, because Sullivan essentially admits to originalism’s greatest flaw — its inability to cope with a “dense and often contradictory” historical record — before claiming that, but for its fatal flaw, originalism works. Sure. And if we ignore his stopped heart, yes, the patient is doing fine.

The complexity of history, and the fact that there’s always a competing historical narrative, aren’t just little problems. They fatally compromise originalism’s sole virtue — its pretension to objectivity. If judges can still choose results based on originalism, the doctrine allows just as much “judicial supremacy” as the next constitutional modality. But don’t take my word for it. Sullivan notes the problem himself. He just doesn’t think it matters.

Set against this vice is originalism’s great virtue: it closes the door on social progress issues, like gay rights and abortion:

The strength of originalism as a restraining force is found in the really controversial cases: those involving abortion, homosexual conduct, same-sex marriage, and so on. For originalists, these are easy cases. The history of the Fourteenth Amendment with respect to these issues is perfectly clear: they are not constitutional matters at all. The history, that is to say, is uniformly and unequivocally silent on these questions.

Query whether choosing a modality based on the outcomes it generates is any less subjective than the “results-driven jurisprudence of the Warren Court.” Regardless, it’s not clear to me that originalism, properly applied, actually offers easy answers to such social issues. Liberal originalists have demonstrated time and again that laws banning sodomy, banning abortion, or defining marriage are all modern creations. See, e.g., Lawrence v. Texas (“It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution”). And, homosexuality and abortion may not have been topics of ready conversation at the founding, but they’re both life choices of deep antiquity. Applying originalism purely, “unequivocal silence” in the record supports neither a positive right to engage in consensual sodomy, nor a negative right for the state to override the citizen’s interest in privacy, and criminalize such private conduct. Even on this “simple” issue, originalists can tell competing stories.

All of this should suggest that originalism isn’t about fighting “judicial supremacy,” defined as judges making subjective judicial choices. It’s about fighting “judicial supremacy,” defined as judges making subjective judicial choices that favor social progress. Here in turn is the great virtue of Brennan’s “risible” notion of the responsive interpretation: if we accept that all modalities of constitutional interpretation involve subjectivity, we might as well acknowledge that subjectivity, and deploy it cautiously to allow society to grow within the constitutional text. Better a Constitution that grows with its people, than one which steadily becomes irrelevant as society changes.

“Love is Strong,” by Fires in France

Republicans’ Jenga Game with the Modern Constitution Continues Apace

Thanks, Rachel, for the link!

It’s time to put conclusively to bed the myth that conservatives favor a steady-state, precedent-bound legal world, as opposed to them-there “activist” liberals. As proof, take this column from George Will, putatively a movement leader, arguing for the resurrection of a monumentally old and long-since repudiated decision: Lochner v. New York, 198 U.S. 45 (1905), which famously invalidated a New York law imposing health regulations on bakeries, based on some loose notion of the employee’s “economic freedom.”

Lochner — may it rest peacefully and undisturbed — died a violent death, the product of political pressure and one Justice’s changing opinions on the law. In life, it stood as one of the last decisions asserting, as a matter of fundamental rights drawn from basic constitutional law, the legislature’s inability to pass a law that would, in some manner, prevent individuals from freely entering into contracts of their choosing. Relying on the Lochner synthesis, a generation of Supreme Court justices struck down minimum wage laws, child labor laws, workplace safety laws and more, all in the name of “economic freedom,” or the “liberty of contract.” This phrasing, of course, was a smokescreen: it protected an employer’s right to issue abusive employment terms as much as the worker’s right to accept those terms. Who’s the real beneficiary in that relationship?

Most lawyers' take on the case.

Obviously, the worker. We should all be so fortunate as to enjoy the freedom to breathe asbestos!

Lochner also asserted an enormously powerful form of judicial review, giving the Court near-plenary authority to strike down any congressional enactment it viewed as an “unreasonable” or “unnecessary” form of regulation. Per Justice Peckham, it was apparently the Court’s function to determine whether any congressional enactment is:

A fair, reasonable and appropriate exercise of the police power of the State, or [] an unreasonable, unnecessary and arbitrary interference with the right of the individual [] to enter into those contracts in relation to labor which may seem to him appropriate.

This collapses into the Court’s right to criticize the wisdom – not the constitutionality — of state laws. Which the Lochner Court proceeded to do, saying:

We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or employee.

No matter what you may think of the judiciary’s power in other spheres — whether it can propound the true limits and dimensions of “personal liberty” — we can’t reasonably believe that the Court may substitute its pragmatic judgment for the legislature’s. Thanks to the Madisonian Compromise, the Constitution certainly does not create the Court into some super-legislature. Here is judicial activism in its truest form.

Which apparently George Will has no problem with, provided it’s supporting his agenda, instead of letting The Gays put on airs of equality. He comes out in defense of Lochner from a few angles. None of them hold up.

First, he claims the fact pattern I’ve described to you — a tale of corporate interests abusing underpaid workers — is all a fiction. It was really some rent scheme, you see! Maybe so; and maybe someone would’ve cared about that back in 1905. But we’ve come to accept the prevailing narrative about Lochner, and built decades of case law on that principle. That’s the strange thing about common law. We care more about what the case becomes, than what it actually was. Generations of lawyers have built Lochner into a monument to the judicially-sanctioned abuse of the poor. Who is Will to deny them their victory, written into the volumes of the U.S. Reporter for more than sixty years, based on nothing more than a hunch? We overturn decisions; not historical narratives.

Second, apparently Lochner served some valuable function as a defense against racism & sexism. If so — who cares? Both evils are still held at bay by the now-prevailing interpretation of the Fourteenth Amendment. Lochner adds no value to this area that isn’t supplied more responsibly elsewhere.

*     *     *     *     *

When Lochner died, it died for a reason. For several, in fact. First, because we realized that “economic freedom” — true laissez faire – means freedom for the rich, and crippling abuse for the poor. Left to their own devices, the robber barons of the late nineteenth and early twentieth centuries proved themselves singularly capable of becoming true despots in a way that the federal government never has. Without government intervention, these figures could leverage need and a lack of viable alternatives to create and maintain a permanent underclass, doomed to work late and die young. The law should be addressed to removing those barriers, not strengthening them.

But more importantly, Lochner died because the Court cannot guarantee the type of economic freedom it envisioned without becoming a real threat to the American system of separated powers. Lochner‘s vision of judicial review stands in stark contrast to the notion that judges should be disinterested mediators — umpires, in Chief Justice Roberts’ colorful metaphor — and suggests, instead, that extremist anti-regulatory economic policy may be dressed up as constitutionalism, and used to bring the people’s work to a grinding halt.

This is the world to which George Will — and all Republican candidates who speak so boldly about “economic freedom” — yearn to return. A world where children work because they legally can and practically must, and where having a job matters more than not dying from (or at) it. Such ill-informed and naive nostalgia deserves to be relegated once again to the dustbin of history, and its defenders sent packing, so they can laugh, call it fate, and keep on drinking.

The Heritage Foundation Makes the Case for Judicial Activism…

…while purporting to invoke “judicial restraint.” In a summary of how, exactly, the Sixth Circuit apparently erred in sustaining the Affordable Care Act against slipshod “tenther” litigation, Edwin Meese explains,

Whatever the merits of that judge’s analysis, it was not an example of judicial restraint properly understood. While restraint counsels against judges shaping the law to suit their own policy preferences, it must not supplant meaningful judicial review.

You see, when he says “judicial restraint,” he means,  ”except when the law at issue is subjectively bad by conservative standards.” This comes as close to blurring the line between a procedural critique of “activist judges,” and a substantive critique of a decision one happens to disagree with, as I’ve ever seen. Until later in the same post.

First, the term “rational basis” … is judge-made code for “blank check,” as the majority’s analysis makes abundantly clear. The Supreme Court has held that the government need not present any evidence in rational basis cases, and it is irrelevant why the law was actually passed or whether it was enacted for a truly public purpose. But that is very the antithesis of judging, which, unlike the rational-basis test, is deeply concerned with facts, evidence, and truth.

Second, it’s the wrong question to begin with. The proper question in this case is not whether a given law bears some “rational” connection to a power enumerated in the Constitution, but whether the law is consistent with a system of government in which the powers withheld from Congress were meant to be far more numerous than the powers conferred. And that is the glaring flaw at the heart of the Sixth Circuit’s decision upholding the Affordable Care Act: It reflects no appreciation for the bedrock principle that Congress’s powers are “few and defined” as compared with those reserved to the states and the people.

Finally, the health-care challenge presents courts with the opportunity to reconsider their misguided policy of reflexively deferring to Congress.

Emphasis, naturally, mine. It’s hard to square any concept of “judicial restraint,” as we’ve heard the term bandied about, with an argument against the ancient, core doctrinal rule requiring that judges “reflexively defer[] to Congress” except when a fundamental right, or suspect classification is at stake. Apparently Meese hopes to convince the reader that “rational basis” is some shocking departure from traditional notions of judicial scrutiny. It is, instead, the core rule of how the Court handles regulations impacting economic rather than substantive liberties.

Since Meese is a former Attorney General, and a graduate of Yale Law School, we can presume he knows better. Which means he also knows what he’s doing, in purposefully miseducating his readers on the state of the law.

The Unspoken-but-Acknowledged Truth About Gay Marriage

Politico quotes another’s observation:

[W]hen the question of [gay] marriage reaches the Supreme Court, the justices will ask themselves, is the country ready? Is it ready culturally, how many states permit same-sex marriage, and what are elected officials saying? At that point and in preparation for that point, the stated position of a sitting president — or even a past president — will certainly matter. At that point, the marriage-equality movement will need every potential arrow in its quiver, including public opinion, state wins and yes, the support of our nation’s chief executive.

Given what the law (as an abstract construct) is supposed to be, it’s interesting that we’re acknowledging this central truth openly, now. Namely, that when the first gay marriage case reaches the Supreme Court, it will be about everything but the law, because both sides know where the law leads. This is the rare case where the law points clearly one way and current-but-evolving public opinion points another. I will leave the obvious ramifications for conservative judicial philosophy — which purports to decry judges inserting politics into the law — unspoken.

Standing, and Rights vs. Remedies

Every now and again, it’s worth looking at the worst of the worst of the healthcare suits. And Purpura v. Sebelius is definitely that. The linked page explains it’s a combination birther/tenther suit — add the “Amero” or the transcontinental highway thing for the conspiracy theory trifecta — and makes some hilarious errors, like imagining economic discrimination is a thing, and conflating it with bills of attainder. Hilarious!

Anyways, the plaintiffs’ complaint was dismissed for lack of standing. On appeal, they have a novel new argument — that the denial of standing denies their First Amendment right to to “petition the Government for a redress of grievances.” This is wrong, but novel, so it’s worth commentary.

First, and by way of noting the threshold error in the plaintiff’s logic,

Nothing in the First Amendment or in this Court’s case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to communications of members of the public on public issues.

Minnesota Board for Community Colleges v. Knight, 465 U.S. 271 (1984). The petition right means exactly what it says. Citizens may petition without facing adverse consequences. But the government doesn’t have to care.

What I think they’re getting at, though, is something deeper. Standing is one of several legal doctrines that acknowledges an extant right, but denies any remedy, equitable or legal. That’s discomforting to novices — as these plaintiffs surely are — because it’s in violation of the Marbury principle, that a remedy must exist “for the violation of a vested legal right.” But it’s the way the law works. Even Mr. Marbury lost and, dicta notwithstanding, had nowhere else to turn for relief. Not all error is reviewable, and not all rights can be vindicated in a judicial forum.

The contrary conclusion is sloppy law, and sloppier conservative philosophy. I would expect there’s some tension between expanding the judiciary’s ability to hear clearly political cases, and any notion of “judicial restraint,” but apparently that doesn’t bother today’s GOP.

Constitutional Decisionmaking: How Roe Undermines the Right’s Attack on Judicial Review

The National Review offers a poll-based rebuke of the position that the Supreme Court’s 1973 decision in Roe v. Wade came too soon, and prevented rather than preceded widespread public acceptance of a woman’s right to choose.

This is actually a popular position on the left, especially in the academy; some others of us, famously Justice Ruth Bader Ginsburg, “rue Roe” for reaching the right result on the wrong doctrine. For those actually looking to set enduring precedent — and that includes us commercial litigators, a lot of the time — doctrine matters.

In any event, NRO says all this to conclude that Roe was a bolt from the blue. Republicans generally assume as much, too, when tying Roe to their wider narrative about “judicial activism.” The benefit of having gone to my law school is that I can conclusively tell you that’s wrong.

As I’ve heard it from those who clerked on the Court while Roe was sub judice, the viciousness of the immediate and continuing public reaction to Roe shocked most of the Justices in the majority, including Blackmun and Brennan, because from their perspective, Roe was a good-faith and obvious expansion of existing doctrine. Because the Court was thinking of doctrine — not politics — when they decided Roe, the majority remained largely unprepared for the immediate public backlash.

In fact, the decision suffers for that. When judges want to protect a decision, they generally do it; think Brown v. Board of Education, where Chief Justice Earl Warren went so far as to beg Justice Vinson, on his hospital bed, to drop his dissent, just to make sure the decision was unanimous. Unlike Brown, Roe shows all the signs of a case decided without a thought for politics; though its doctrinal foundation is clear, it’s weaker than alternative bases for the holding.

Taking the above into account, the Roe reaction stands for a rather different precept than the one advanced by NRO: that given the hyper-politicized background against which the Court exists, good constitutional decisionmaking involves limiting doctrine on the basis of politics. That’s the opposite of the lesson the tea party expects the Court to take, but it’s one the Court follows to this day. It is, for example, the only reason we don’t yet have clear case law on gay marriage. Gay rights are a tough political case to make, but pretty easy on the doctrine.

Conservative voters regularly insist that the Court “follow the law”… and reach conservative outcomes on that basis. But as a construct tied up with notions of equity, and a deep countermajoritarian respect for the socially disadvantaged, the law is actually a fairly liberal beast.

I would ask that conservatives choose between their competing demands — the law, or politics? — but I think their resolution of the matter is pretty clear.