Judicial activism

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.

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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.

Ron Paul Re-Litigates McCullough v. Maryland

Ron Paul, recently-declared candidate for the Presidency and halfway tea party hero, offers a constitutional vision where Medicare, Social Security, and most other things are unconstitutional:

I’m not sure to whom this kind of pitch appeals — possibly, exclusively, the extremist narrow-government types who see congressional and presidential overreach everywhere they look, but only since January 20, 2009. Either way, the approach contrasts with the way we’ve run this country since the early 1800s. It was settled early in our national history that a government of enumerated powers differs from a government of only enumerated powers.

The Founding generation specifically rejected the notion that the Tenth Amendment, or any constitutional doctrine, prohibits the government from exercising a power “necessary and proper” to the execution of its expressly delegated authority, and courts have, without exception, noted their duty to defer to Congress’ reasonable construction of its powers, lest they truly become “activists” in unnecessarily striking down congressional prohibitions.

Ron Paul would have us return to the Articles of Confederation. I’m not sure why.

Authorities follow below the jump.  Continue reading »

Christine O’Donnell Just Loves the Supreme Court

Given a few days, Christine O’Donnell can think of something to say about the Judiciary, and the profoundly “activist,” revolutionarily recidivist Roberts Court is just fine by her:

The Supreme Court under Chief Justice John Roberts and Associate Justice Samuel Alito has returned to a rule-of-law court, so there is no longer a laundry list of recent disappointing decisions that stray from America’s founding principles.

But lest there be any doubt, a vote for the Republican Party continues to be a vote for indefinite detention, proudly and boldly asserted on the President’s say-so, with no input from the legislative branch:

Consequently there are no recent Supreme Court decisions with which I vigorously disagree, with the exception of Boumediene v. Bush in 2008, Hamdan v. Rumsfeld in 2006 and Kelo v. City of New London in 2005. The court’s strong record in recent years proves the tremendous importance of appointing constitutionally based judges and Supreme Court Justices.

 For what it’s worth, even Justice Scalia thought the government went too far in Hamdan, by detaining an American citizen without recourse to legal process. Consensus has moved towards the Democrats on this issue, and it’s time for all the concern trolls to show their quality, and stand with us.

Why We Run to the Courts

Previous, intelligent critiques of judicial review have assumed — and, in fact, relied upon — the idea that the majority would deal fairly with the minority. Jeremy Waldron:

I assume that there is a strong commitment on the part of most members of the society we are contemplating to the idea of individual and minority rights. . . . They believe that minorities are entitled to a degree of support, recognition, and insulation that is not necessarily guaranteed by their numbers or by their political weight.

Today, that starry-eyed ideal took another beating, as all Republican Senators, plus one Democrat (two, if you count Sen. Reid’s clearly procedural vote), prevented even the opening of debate on the defense appropriations bill that would have both repealed Don’t Ask Don’t Tell, and ended the practice of “secret holds.” Politico criticizes the likely advocate’s reaction: self-help, through the courts.

This, though, is now the only answer. By blocking repeal, the Senate stands in the way of a growing, supermajority consensus that servicemembers should be allowed to serve openly, even though standing against repeal is no longer rational. Logically, legally, or politically. And yet, we can add this to the growing list of things that can’t be accomplished, given a force of mindless obstructionism.

If the legislature won’t secure the people’s rights, the courts will. They’ve already started down that path (pdf). That’s why they’re there.

Text & Meaning: Constitutionalism for the Elites?

In the wake of several monumental district court decisions — enjoining SB1070, and invalidating California’s discriminatory Proposition 8 — we should brace ourselves for the resurgent old narrative, that a minority of “elitist” judges ought not be in the business of preventing the majority from indulging in its favorite blood sport, discrimination.

As anyone with a passing interest in American constitutional theory will tell you, the opposite is true. When the majority mistakes its moral whim-of-the-moment for some foundational tenet, obscured but nonetheless present in our shared past, it is “emphatically the province and duty of the judicial department” to inderdict them in their quest to leverage it for personal gain, unless the pursuit also represents some part of the legitimate work of governing.

A more salient criticism is the observation that, in the process of judging, most jurists will rely on doctrines, theories, and terminologies wholly extrinsic to the Constitution itself, and to any governing law. Take this recent comment from Concurring Opinions:

I think it’s the persistent belief among laymen that, at SOME POINT, the actual text of the Constitution has got to start mattering. That the judiciary aren’t completely corrupted.

It’s a naive belief, and there was never much to support it, but it’s been out there. When it finally goes away, so will the popular legitimacy of the courts, I suspect.

It’s true that modern constitutional litigation has far outgrown the actual text of the document. For their parts, not even textualist scholars dispute this premise, as they, too, use the text as a starting point for a larger structural or deeper linguistic analysis. The vagueness of the document requires as much (what is a “commerce”?). When resolving a dispute with any degree of complexity, it’s impossible to exclusively rely on the words on the page. And that’s the way it was meant to be. Constitutions are starting points, and the early judiciary, populated with men who had helped draft or even sign the Constitution, was already in the process of building up doctrine that would calcify around the Constitution’s key requirements, and later supplant the text, at least for the purposes of legal analysis.  Legally, this is good: the generation of doctrine promotes predictability, where recourse to the text alone would require every case to start from first premises. It’s also the way the common law system works, and precisely what the Founders had in mind.

Politically, though, it’s a disaster. Many of the most important modern doctrines aren’t discernable without full knowledge of the history behind them and, without that knowledge, look for all the world like they sprung fully-formed from the head of the latest judge to incur the right wing’s wrath.

“Tea party” talking points about “respecting the Constitution” play off this alienating effect, and gain traction where first premises look more attractive than the rules that they’ve generated, over the course of the centuries. In a sense the tea party view of the Constitution is an anarchic one — aimed squarely at erasing those rules, to get back to the Constitution’s primitive roots — and one that suffers from the same problem of other anarchic movements. It’s short-sighted, and ultimately contradictory. In human society, order fills chaos. The Constitution is a hollow shell without the citizens, lawyers or laymen, whose controversies give it substance. Tea partiers know this, and want a tabula rasa not for its own sake, but so they can populate it with their notion of the way things should’ve been. It’s chronological primitivism, plain and simple, but one legitimized by the presence of a foundational document, and bolstered by the feeling that, somewhere along the line, the text stopped mattering.

How do we fight that? We’re right that the text should be a starting point only, but that’s not enough.

“Deliberately Open-Ended Guarantees”

For those of you in the legal community, this is old news, but deserves second reflection; for the remainder of my admittedly small readership, read this speech by Justice David Souter, given at Harvard, on the difficulty of providing a meaningful resolution to complex constitutional questions.

He explains that, at best, we expect the law to be syllogistic — major premise applied to discrete factual situation compels simple resolution:

The charges of lawmaking and constitutional novelty seem to be based on an impression of the Constitution, and on a template for deciding constitutional claims, that go together something like this.  A claim is made in court that the government is entitled to exercise a power, or an individual is entitled to claim the benefit of a right, that is set out in the terms of some particular provision of the Constitution.  The claimant quotes the provision and provides evidence of facts that are said to prove the entitlement that is claimed.  Once they have been determined, the facts on their face either do or do not support the claim.  If they do, the court gives judgment for the claimant; if they don’t, judgment goes to the party contesting the claim.  On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively.

But a Constitution is not a statute. It neither contemplates nor attempts the exhaustive resolution of all possible questions:

There are, of course, constitutional claims that would be decided just about the way this fair reading model would have it.  [. . .]  But cases like this do not usually come to court, or at least the Supreme Court. And for the ones that do get there, for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality.

Even a moment’s thought is enough to show why it is so unrealistic.  The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches.  These provisions [. . .] call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.

Accordingly we must routinely look beyond the Constitution to resolve constitutional questions. In defense of this position, and against the alternative “fair reading” approach to constitutionalism (a hybrid textualism/originalism), Justice Souter marshals two arguments: societal assumptions change, compelling different results (Brown v. Board of Education), and the Constitution asks us to vindicate competing values, thus requiring judges to balance them, and foreclosing resort to simple absolutes (New York Times Co. v. Sullivan).

To these points we can add one more, expanding on Souter’s characterization of constitutional rights as “deliberately open-ended guarantees.” The founding generation knew how to write a static law. They also knew they were building a country whose life would be measured not by generations, but by centuries, and as witnesses to history, knew that such a future implied levels of societal change that could not be anticipated, much less legislated in advance. Towards that end they gave us not an exhaustive rulebook but a guide to the values we should seek to balance when resolving novel conflicts. Judges aren’t bound by the way society looked in 1789, then, or by the precise letters of the Constitution, but by the overall structure of the document, and the types of balances it strikes. This reading preserves for the document a dignity of which simpler approaches would rob it. And, in light of the abhorrent compromises intermittently struck by constitutional scholars throughout the history of the document, lets the Constitution, and its drafters, serve as the instruments of their own redemption. It also validates the core assumption of the American dream: that the future can be better than the past.