December 18, 2005

New Kid on the Catholic Bloc

If Samuel Alito joins the Supreme Court next year, Catholics will be a majority of the nine justices. Law scholar Marci Hamilton asks in Current what effect religion will have on the next court. What's more important: faith or training?

If Judge Samuel A. Alito Jr. is named to the Supreme Court, there will be five Catholics on the court. Will this make a difference?

The short answer is "no." There is simply no way to predict how any one Catholic is going to vote on an issue. We live in the era of "cafeteria Catholics," which is to say that American Catholics pick and choose among their church's doctrines, especially when the issue is contraception, abortion or premarital sex. The Roman Catholic Church does not and cannot control how American Catholics view social issues. Thus, five Catholics will be about as predictable as any other five Americans in how they vote on hot-button issues.

Click HERE to get the full story.

Posted by msoller at 10:00 PM | Comments (0)

November 20, 2005

Samuel Alito's True Beliefs

In this week's Current, UC Hastings' Vikram Amar says Alito's 1985 memo "shows what it meant to be a true conservative in the 1960s and 1970s."

Judge Samuel A. Alito Jr.’s 1985 application for a high-level Justice Department job not only offers a glimpse into his legal thinking, it also lays out the probable course of his confirmation hearings in January. Most revealing, it illuminates the nature of legal conservatism during the last few generations.

On his application, Alito identified himself as a lifelong conservative who was influenced by Barry Goldwater’s 1964 presidential campaign. He wrote that he became interested in law while in college because he objected to numerous Warren court decisions.

Alito and his supporters contend that the application reveals only his personal views, and that his 15-year record as a judge proves that he can put aside such views when deciding cases.

But Alito stated in his application that “the Constitution does not protect a right to an abortion” and that Roe vs. Wade should be overturned — a legal position he advanced with “satisfaction” on behalf of the Reagan administration because he “personally believe[d] very strongly” in it. A judge who thinks that abortion is morally wrong might be able to put aside this belief when judging a case. But it’s hard to see how a judge’s “personal” view on the legal meaning of the Constitution won’t affect his judicial task of deciding what the Constitution means.

An executive-branch lawyer may not think he should worry about respect for judicial precedent the way a judge should. So, even in 1985, a Judge Alito might have had different views than lawyer Alito did. And 20 years have passed since Alito filled out the application, and he might today claim that both the world and his legal interpretations have changed.

Whether any of that will play during his Senate confirmation hearings is another matter. Asked to explain his written words, Alito might not be able to stonewall the way Judge John G. Roberts Jr. did during his hearings. Sen. Charles Schumer (D-N.Y.) has already said that some statements on the application could suggest that Alito has prejudged the continuing vitality of Roe vs. Wade, and thus he must discuss abortion rights to demonstrate his open-mindedness.

Schumer is correct to press Alito for his current views on abortion rights, but not because Alito has prejudged the issue. If the judge’s 1985 statement improperly prejudges future abortion cases, so too would the writings of Justice Antonin Scalia in every Roe-related case he’s heard since 1987, yet he continues to hear such cases. Alito should address the contents of his job application for the same reason he should talk about all his tentative constitutional views — these are not personal feelings but legal opinions.

Much of what Alito wrote in 1985 no doubt shocks many people today. Perhaps most arresting is his disagreement with the Warren court’s reapportionment rulings.

The court struck down legislative districts in which some voters (mostly in rural white areas) enjoyed a much greater electoral voice than others (in urban regions containing with many poor people and people of color).

These “one person, one vote” cases are as canonical in 2005 as is Brown vs. the Board of Education, and were even used by the Supreme Court in deciding Bush vs. Gore.

But in challenging these and other Warren court decisions, Alito simply shows what it meant to be a true conservative in the 1960s and 1970s. Conservatives openly attacked Brown 40 years ago. They sharply criticized the idea that judges should regulate redistricting. They hotly questioned the (now entrenched) notion that Bill of Rights’ protections should also apply to the states. Today’s conservatives aren’t exactly eager to remind everyone what conservatism meant just one or two generations ago, and how they were often fighting on the wrong side of history.

But is today’s conservatism still fighting those battles?

It’s noteworthy that although Alito expressed disagreement with the Warren court’s rulings on reapportionment, defendants’ rights and the establishment clause, he didn’t indicate a strong desire to mount a legal campaign to overturn them. Even by 1985, most conservatives had grudgingly come to accept, if not embrace, school desegregation; one person, one vote; Bill of Rights protections against the states; the requirement of Miranda warnings for criminal defendants, and even bans on heavy-handed school prayer.

Why? Maybe because society has internalized these major legal innovations and moved on. But conservative elites have drawn a line in the sand over Roe vs. Wade. It’s the one legal innovation that they haven’t caved on, perhaps because society has not internalized it.

For better or worse, what may be most revealing about Alito’s 1985 job application is the way it shows how singularly important — and singularly divisive — abortion rights are in U.S. constitutional discourse.

Posted by msoller at 08:45 AM | Comments (1)

November 13, 2005

This Time, Alito, It’s Personal

By Kate Michelman, former president of NARAL Pro-Choice America and the author of the memoir, “With Liberty and Justice for All: A Life Spent Protecting the Right to Choose,” to be published by Hudson Street Press/Penguin in December. Published this week in Current

Looking back more than three decades to one of the most difficult times in my life, it’s hard to say what seems more insulting: being forced to obtain my husband’s permission to have an abortion after he had just abandoned my family or — many years later — Supreme Court nominee Samuel A. Alito Jr.’s ruling that a similar requirement was not, in constitutional parlance, an “undue burden.”

In 1969 — in those distant but suddenly closer days before Roe vs. Wade — my husband deserted me and our three small daughters. After learning I was pregnant, and making the wrenchingly personal decision to have an abortion, I was forced to submit to an invasive and humiliating interrogation before a hospital review board in Pennsylvania. It ultimately gave its permission. I was in the hospital preparing for the procedure when a nurse informed me I would need my husband’s permission too. I found him a few days later and he gave it.

In the 1992 case of Casey vs. Planned Parenthood, Alito voted to uphold a Pennsylvania law requiring women to notify their husbands before having an abortion. Such a requirement, he ruled, was not an “undue burden” on most women. The vast majority of women, he noted, voluntarily discuss an abortion with their husbands, while the law provided a nominal exception for women in the most extreme circumstances, such as abusive relationships.

The only women who would be burdened were all those left in the middle — women like me, women in extraordinary and individualized circumstances that neither laws nor legal standards could possibly anticipate.

Alito’s opinion in essence said the only women the law would burden were those for whom it was burdensome; his standard appeared to be that individual rights could be restricted provided that not too many individuals were at stake.

That is precisely the problem with government regulating private lives. Politicians do not know how laws will affect each individualized case. Courtrooms are a citizen’s last refuge from unjust laws. When judges do not see those in their courtrooms as whole people and diverse individuals, that final constitutional safeguard is eviscerated.

To be sure, Alito would likely say women such as me should not take his opinion personally. I don’t. But his potential elevation to the Supreme Court comes at a moment when privacy rights hang in the balance on an array of issues. A woman’s right to choose is the most immediately threatened among them. Many Supreme Court decisions on that topic have been decided by a single vote — Justice Sandra Day O’Connor’s. If Alito is even slightly more conservative than O’Connor — as is obviously the case — his vote would be enough to render the protections of Roe vs. Wade functionally meaningless for millions of women.

That is disturbing enough. But far more is at risk. From the Terri Schiavo case to the Patriot Act, politicians at all levels of government show an increasing willingness to invade the most sacred areas of private life — from decisions about the beginning and end of life to the books we check out of the library.

Politicians are inclined to do that sort of thing; they rarely respect limits on their own power. That is why we have judges — but if judges such as Alito are willing to give politicians such unthinking deference that they do not even attempt to ascertain how real laws affect real people, it is difficult to see how privacy can possibly be protected.

That is why it is so disappointing that President Bush has chosen to be intimidated by the most extreme element of his political base rather than acting as what he so often purports to be: a leader. Because he has chosen to follow, it is up to senators to lead. This nomination will rise or fall on the courage of moderates of both parties. Neither Democrats nor Republicans should expect their claims of moderation to be believed if they support a nominee whose views are so extreme.

Bush’s political strategy is already clear: to portray anyone who opposes Alito as obstructionist. That is a label senators should not fear. If their power to advise and consent — as well as the privacy of individual American citizens — means anything, this is a nomination that must be obstructed.

Posted by msoller at 05:39 AM | Comments (2)

October 03, 2005

Note: Entries below refer to the nomination of and hearings on John G. Roberts, the newly be-robed chief justice.

Posted by bbuhler at 12:00 AM | Comments (0)

September 21, 2005

Simpatico Supreme

My colleagues in this discussion have much more experience in watching justices develop, and they have offered wise insights. I don't want to repeat their comments, but I'd just like to add that history shows that new justices on the Court tend to disrupt voting blocs, not only by their own vote, but also as the other justices attempt to persuade the new justice by showing their own open-mindedness and willingness to compromise.

I'd guess Chief Justice Roberts will be to the left of Chief Justice Rehnquist on a number of issues, but paradoxically he will move the Court slightly to the right. This is because he will be a better coalition-builder, and because he is more interested in persuasion and moderation. In the Rehnquist Court, O'Connor and Kennedy were sometimes alienated by Scalia and Thomas, and increasingly they swung to the moderate left bloc. Rehnquist generally aligned himself with Scalia and Thomas. My guess is that Roberts will be able to shake up the voting blocs, and that he will reach out to Kennedy, O'Connor and her replacement, and bring them on board more conservative decisions. He may even be able to persuade some of the four moderate left justices through compromise and dialogue.

Whether you're on the left or right, you'll win some and you'll lose some in this new dynamic. But given the recent sharp increase in 5-4 decisions on the Court, a renewed commitment to consensus is good for the Court and good for the law.

Posted by bbuhler at 11:03 AM | Comments (1)

If He’s Sincere, He Could Be Great

It is almost impossible to say much about Judge Roberts with a high degree of confidence. I think we can rule out the idea that he is an originalist (someone who interprets the Constitution according to the purported intent of the framers) in the Scalia/Thomas mold. His statements distancing himself from their flawed jurisprudence were emphatic. But this does not rule out the possibility that Roberts will prove to be a conservative ideologue of a non-originalist sort, as Erwin Chemerinsky suggests.

To be sure, Roberts claimed to be a pragmatist and he paid obeisance to stare decisis. But nominees — even Supreme Court nominees — tend to say whatever is necessary to get confirmed. Just look at how quickly Clarence Thomas turned his back on the jurisprudential assurances made at his hearing, or the truth-stretching responses that William Rehnquist gave when he was nominated to be chief justice. That said, if one gives Roberts the benefit of the doubt, he could turn out to be a much better justice than Rehnquist, the one to whom he is most often compared. While their voting patterns may prove similar, especially in the short run, Roberts has marketed himself as someone much more deeply committed to legal reasoning, open-mindedness, and judicial diplomacy than Rehnquist was, especially during his tenure as chief justice. These are valued qualities in conservatives and liberal alike — and we just have to hope Roberts was sincere when espousing them.

In sum, while I fear the worst (see Erwin Chemerinsky's views), I'm keeping an open mind that this very, very intelligent man will be receptive to the views of his colleagues and to new ways of thinking about the law. If so, he could prove to be a very effective and admirable chief.

Posted by bbuhler at 10:30 AM | Comments (1)

He Won’t Let Justice Get in the Law’s Way

John Roberts will make a splendid chief justice. His pledge to the Senate and the American people is to apply the law as written, resolving doubt or ambiguity in favor of settled law and expectation, and wherever legislative policy choice is not contrary to individual right secured by constitutional text or deeply held tradition, in favor of the choices made by elected representatives. This may well be similar to the posture taken by the late chief justice, and that is to the credit of his happy memory, but it is also precisely the role anticipated for the judiciary by the founders and by the text of Article III of the Constitution, itself. It is a view that comes now with fresh enthusiasm and with demonstrable collegiality that has the potential to be appealing well beyond the standard conservative or liberal alignments.

I am convinced that none of the justices set out to navigate personal voyages of discovery that permit the importation of personal view as law, but under the last three chief justices — Warren, Burger, and Rehnquist — it happened too frequently. With John Roberts in the center seat reminding his colleagues ever so effectively and persuasively of the importance of fidelity to the judicial role, liberal and conservative activism will have less resonance.

John Roberts is of such quality and merit that he deserves unanimous approval. He staked out the position made famous by Oliver Wendell Holmes, and it is one anchored in law, not partisanship. Several times, Senators Feinstein, Biden and Schumer all asked what John Roberts' personally thought about past cases and even about the most difficult of human conditions — such as end of life decisions for a family member. Each Senator wanted this highly personal and individual perspective, they said, so that they could know John Roberts' philosophy of life, which presumably these Senators seem to believe should or might govern legal outcomes. With all due respect, these members are still confusing the Supreme Court for a supreme moral or policy oracle. The reason John Roberts politely declined to answer each of these inquiries into personal philosophy is not because they are unimportant as a matter of morality, but because judicial ethics and the very separation of powers would make answering them deeply mistaken.

Replacing Justice O'Connor should entail no different set of considerations than looking for a person learned in the law who will be faithful to the limited, albeit important, understanding of a judge as a neutral and impartial arbiter. Any attempt to match her reasoning — however much I admired it especially in matters of federalism and the security of private property — is a fool's game.

Posted by bbuhler at 09:28 AM | Comments (0)

September 20, 2005

Rehnquist Resurrected. Next!

John Roberts is a man who has not revealed his personal views publicly his entire life. He pledged to follow the rule of law at his hearings. I think we can be absolutely certain that he is not an ideologue; no ideologue would have resisted the many temptations presented to him during his career to show such a tendency. Thus, this is not an appointment in the mold of Justice Scalia or Thomas. He is, in virtually every respect, likely to be a 1-to-1 trade for Chief Justice Rehnquist, at this point in time, but all indications are that he will be thoughtful and more open to a wide array of arguments than the Chief was.

The vital question is who will replace Justice O'Connor, if one wants to chart the Court's future. It has been disappointing that the White House has focused on such a small number of women, as though there are not enough qualified Republican women out there. Once Roberts' confirmation was a fait accompli, one would have thought there would have been a lengthy list of distinguished Republican women to consider. In the absence of such public speculation, one can only wonder if the list of white males under consideration for the Roberts nomination is still in play. Female or male, this is the seat that could cause a dramatic change in the Court if an ideologue is nominated.

Posted by bbuhler at 12:42 PM | Comments (0)

A Lawyer’s Chief Justice

In brief, I have high hopes for Chief Justice Roberts. He’s both excellent and modest -- two wonderful attributes.

My hope is that he’ll be a lawyers’ Chief Justice, in the sense that he’ll be exceedingly careful and honest with legal doctrine. I also suspect that in many ways he’ll work well with Justice Breyer, who is similarly excellent, not very ideological, and pragmatic.

To be sure, it’s possible that he’ll surprise us, for the worse. (Who would have suspected the constellation of views that we’ve seen from Justice Thomas?) But there’s a good chance that he’ll combine quality and character with judgment as well.

Posted by bbuhler at 11:25 AM | Comments (0)

When He Gets Older, Losing His Hair, Many Years From Now...

John Roberts is 50 years old and if he remains on the Court until he is 85, the current age of Justice John Paul Stevens, he will be there until the year 2040. That, alone, causes pause in making predictions. Yet, if one had made a prediction about William Rehnquist when he went on the Supreme Court in 1972, it would have been that he would have been very conservative and a consistent vote against school desegregation, women’s rights, protections for criminal defendants, and other civil liberties. That is exactly who he was for 33 years on the Supreme Court.

Those who care about civil liberties and civil rights can only hope that John Roberts does not follow in Rehnquist’s footsteps in this regard. Unfortunately, throughout his career, Roberts has urged lessening constitutional protections for reproductive freedom, for racial minorities, and for the separation of church and state. There is absolutely nothing in Roberts’ record as a lawyer or a judge to provide a basis for optimism in any of these areas. Nor did Roberts say anything at his confirmation hearings to lessen concerns about his likely votes on these topics as chief justice. He refused to explain his views on these and most other issues at the confirmation hearings.

Thus, there is nothing to do but hope that on the Court, over time, he will be much better than his prior record would indicate.

Posted by bbuhler at 10:43 AM | Comments (4)

September 19, 2005

Our Unsettled Expectations About John Roberts

Now that a most soporific set of Senate hearings have lumbered to a close, it looks that John Roberts will be confirmed as Chief Justice of the United States Supreme Court. The most that the Democrats can say against him is that his statements have not been sufficiently forthcoming on matters of great public importance, so that they must vote no because they cannot give him a vote of confidence. But arguments that weak will not in the end prevail, for they sound just like a wounded plea that if we can’t get our agenda confirmed by a new Chief Justice, then we will take our marbles and go home.

Fortunately, the nation will move on, and our question is what can sort of expectations should we have of a future Chief Justice who has made settled expectations the centerpiece of his own nomination defense. On that question, we have some reason to be confident that he will do just fine, both as a Justice who votes and as a Chief Justice who administers the Court.

Starting with the latter, Jeff Rosen in this Sunday Times Magazine noted that our history has given us chief justices that have been able to achieve high levels of cooperation among the justices and those who have failed utterly in that task. To speak only of our last four chief justices, the vote is strongly positive for two and strongly negative for two others. Fred Vinson, who could not rule over a fractious Court on segregation, counted as a clear failure as chief, as did Warren Burger whose vanity and self-importance got in the way of every institutional responsibility. But Earl Warren, who pulled the Court together on Brown v. Board of Education, and William Rehnquist himself weren’t failures because they had the temperament needed to hold the Court together. Each could express leadership in his own way, and neither used the power of the chief’s position to achieve some short-term advantage of any key substantive issue that came before the Court.

It seems clear that on that key question of temperament, Roberts is a superb choice to fill the position. Smart and funny, he is also self-effacing. I have not heard anyone who knows him say a harsh word about him. And he did have the great advantage of working with Rehnquist (when Rehnquist was an associate justice) to see how the pomposities of a bad chief justice could sour the disposition of an entire court.

There is also a second lesson that can be learned. The success of a chief justice does not depend on his holding views that place him in the center of the Court. Warren was able to be effective from the left and Rehnquist from the right. Rosen, I think, was wrong therefore to wonder aloud whether Roberts has the “moderation, pragmatism and flexibility” to do the job. Not so. The chief justice who knows the limits of his role will do just fine, and indeed will gain more respect, if he holds true to whatever constitutional principles he finds most persuasive. Roberts should just be his own man.

And what kind of man will that be? In one sense that will be hard to guess because he rightly bobbed and weaved when he answered particular questions. But there are clear signs about judicial temperament as well. Any one who likes the phrase “settled expectations” is not likely to prove erratic or extreme in his judgments. The criticisms raised of Roberts have to do with how he would decide cases that call into questions doctrines that have already been decided by the Court. But that seems to be the wrong perspective on which to evaluate. What really matters in many cases is the intellectual attitude that he brings to the novel issues that are sure to come before the Court. All that anyone can ask is that he have an open mind, which I thought he did, even before he said he did.

Indeed, my concern about Roberts as a justice is the opposite of that expressed by many of his doubters. I am not sure that he has a strong judicial philosophy that could help guide him through the difficult shoals that lie ahead. As a practicing lawyer, his natural tendency was to think about narrow and safe grounds on which to argue a case, without rippling the waters. That is just right for lawyers who have clients’ interests and stake, but it is less likely to prove successful for the judges who decide great cases. I am no fan of constitutional minimalism because it gives no information about the long-term features of our constitutional heritage that are worth preserving. It just assumes something nice about (parts of) the status quo, without asking how well they fit in within our powerful constitutional tradition, which succeeds because it recognizes that we have to learn to distrust the government that we have to support and protect.

The great crises before the Supreme Court are likely to come in cases as yet unknown where someone has courage enough to break the mold, and creative enough to know how best to do it. In dealing with these matters, I hope that Roberts proves himself to be an independent man of principle. His new role is different from any other that he has filled. In the end, choosing or confirming any nominee require us to make a leap of faith. With Roberts, the odds are far better than we had any right to expect. Good luck and God’s speed.

Posted by bbuhler at 11:19 AM | Comments (0)

September 15, 2005

Playing With Loaded Dice

As the confirmation hearings conclude, a few moments of exasperation reveal all that is wrong with the current process. Take Senator Biden’s unhappiness at not getting a straight answer from John Roberts on his view of the right to die: “Without any knowledge of your understanding of the law, because you will not share it with us, we are rolling the diced with you, Judge.”

In a sense that is exactly what we want Sen. Biden and every other senator to do. The insistence that Biden can have on this issue is not unique to him. Notwithstanding the royal we, there are other senators who will rest easy only if they hear an answer that is dead opposite to that which Biden might wish to hear. A full discussion of the philosophical or constitutional issues could take extensive time to unpack, because even those people who are in favor of the right to die, are unhappy with various forms of assisted suicide and active euthanasia, which are currently illegal. Yet it takes a certain amount of ingenuity to draw the relevant distinctions between those actions and the withdrawal or cessation of treatment at the request of the dying patient or his or her guardian.

In other circumstances, I would like to hear what Roberts has to say, but not here. Sen. Biden should be in the same position as the rest of us. We should all be prepared to roll the dice, that is to take a chance on the nominee, because any other position is wholly inconsistent with our basic notions of judicial independence. There is a real danger to ask for an explanation of a nominee’s position on an issue when what is really sought is an implicit declaration that you will come out this or that way on in some future case. All candidates should keep mum on these matters.

Which leads to the larger question: Why have the cross-examination at all if the obvious answers are known in advance and all else is rightly platitude? Perhaps the hearings are needed for public education. But it is steep tuition to have to listen to various senators pontificate at length. No wonder these hearings are relegated to C-SPAN3.

Posted by msoller at 04:30 PM | Comments (0)

The Democrats Let Him Duck

Senator Joseph Biden was exactly right: The Roberts hearings have been a charade, an exercise in Kabuki theater. ("With all due respect, you've not — look, it's kind of interesting, this Kabuki dance we have in these hearings here, as if the public doesn't have a right to know what you think about fundamental issues facing them," Biden said Wednesday.) For two days, Roberts has shown that he is intelligent and articulate, but has refused to answer any questions about his views. He wouldn't express his views about Bush v. Gore, or the Second Amendment, or constitutional protection for sexual privacy, or abortion rights, or affirmative action, or the separation of church and state.

But the Democrats let Roberts get away with this. Not once did a Democratic Senator indicate that without answers to questions, he or she would vote against John Roberts. Not once did a Senator challenge Roberts' assertion that it would be inappropriate for him to express his views on these questions.

Three years ago, in Republican Party of Minnesota v. White, the United States Supreme Court, in an opinion by Justice Antonin Scalia, said that a judge does not lose impartiality by expressing his or her views while running for judicial office. A person does not become impartial by pretending that he or she does not have views.

If Roberts is allowed to get away with this charade, there seems little point to holding these hearings in the future. The Democrats need to make clear that a nominee's views do matter in how he or she is likely to vote and that Senators, and the American people, need to know these views in order to confirm the nominee for a lifetime seat on the Supreme Court. The Democrats need to oppose John Roberts because he simply would not answer their legitimate and necessary questions.

Posted by msoller at 07:44 AM | Comments (6)

It's Called Law, Not Justice, Senators

Several times on day 3, Senators Feinstein, Biden and Schumer all asked what John Roberts' personally thought about past cases and even about the most difficult of human conditions — such as end of life decisions for a family member. Each Senator wanted this highly personal and individual perspective, they said, so that they could know John Roberts' philosophy of life, which presumably they believe is relevant or perhaps even should or might govern legal outcomes. With all due respect, these members are still confusing the Supreme Court for a supreme moral or policy oracle. The reason John Roberts' politely declined to answer each of these inquiries into personal philosophy is not because they are unimportant as a matter of morality, but because judicial ethics and the very separation of powers would make answering them deeply mistaken.

It is widely noted in law schools that an older, experienced judge was once talking with a younger judge who had just been sworn in. The older judge asked the younger judge if he knew what his job was in making decisions; and the younger judge said, "Yes, I should make decisions which are just and fair." And the older judge said, "No, you are to enforce the law."

This is the same response Oliver Wendell Holmes gave when his friend, Learned Hand, too casually ended a conversation saying "go and do justice." Holmes, like Roberts, said that as lofty as that sentiment may be, it was not his job since thinking otherwise fails to preserve the important distinction upon which the rule of law itself is based.

People disagree about what is just and fair. We live in red states and blue ones. So if we are to remain anything resembling a "more perfect union" in any practical sense, we must remain faithful to the ideal of being a nation of laws and not men. Of course, we the people must seek justice in legislative enactment and personal behavior. But in matters of judging, the aspiration is more modest; in John Roberts' words, more humble. The judicial oath requires a judge to enforce our choices, subject only to avoiding a transgression of the bill of rights. As countless decisions illustrate — from flag-burning as speech that insults patriotic citizen to the exclusionary rule that lets the criminal go free when the constable blunders — judges must enforce the law, even the ones they dislike or with which they disagree.

"Justice?" Asked writer William Gaddis in his novel of the 1990s, "You get justice in the next world, in this world you have the law."

Posted by msoller at 07:37 AM | Comments (4)

September 14, 2005

If He's Working from the Bottom Up, What Are His Tools?

Roberts has masterfully avoided answering any tough questions, hiding behind a Ginsburg non-precedent that also makes little analytic sense. Meanwhile, Democrats have done a pathetic job pushing him on this point. Roberts' repudiation of the jurisprudence of original intent was welcome, but it raises the following question: Roberts says that he has no overarching judicial philosophy and that he's a "bottom-up," pragmatist judge. But how does Roberts go about deciding which interpretive tools to use in which types of cases?

One of the most troubling aspects of the modern court has been the way some justices pick whatever interpretive tool just happens to get them to the result they want to reach rather than using consistent methods of interpretation even when they lead to results that the justice might not favor as a matter of policy. It would be nice if Roberts would address this potentially significant problem. That said, Roberts has provided Democrats with little basis for rejecting him on ideological grounds and considerable reassurance that, while very conservative, he would make a thoughtful Chief who understands the importance of providing compelling justifications for the exercise of anti-democratic judicial power.

Posted by msoller at 04:39 PM | Comments (1)

Legalize Him, Don't Criticize Him

Except for the sheer pleasure of listening (and learning) from John Roberts, my own inclination — were I a member of the Senate — would be to adjourn the hearings, recommend Roberts to the floor without qualification, and then, watch a legacy-setting unanimous approval of a U.S. Supreme Court Chief Justice in modern time unfold.

Sen. Lindsey Graham (R-S.C.) asked the rhetorical question of the day when he wondered aloud that, despite Judge Roberts' obvious brilliance, his warm, open-minded and impartial demeanor, and most of all, his refreshingly consistent view of a judge as a restrained, "bottom-up" decider of cases and not a usurping policy maker — whether he would get any votes from the Democratic side at all. Sen. Graham, of course, fashioned the bipartisan moratorium to the problematic filibuster of appellate nominees, so his was both a poignant and important observation.

No one doubted that Ruth Bader Ginsburg and Stephen Breyer were both highly able and highly liberal. Ginsburg as an ACLU advocate was often way beyond settled law and Breyer had been a Kennedy staffer, yet, with their articulated commitments to decide cases on the law and the record of each case, they were appropriately confirmed 96-3 and 89-9 respectively. On the merits, Roberts deserves 100-0 — and were that politically unlikely tabulation somehow nevertheless to occur, it would be an act of profound Senate responsibility and good will that would signify a full-fledged return to respecting the constitutional design, and most especially, the separation of powers.

Don't misunderstand. Roberts could not possibly have satisfied everyone in the substance of his answers yesterday. He didn't. First of all, a good number of questions could not be ethically answered. Again, following the lead of Justice Ginsburg, he noted that it is wrong to predict, forecast, or promise particular legal results. Roberts' answers therefore carefully and largely avoided expressing personal views on cases that might come before him or his personal view of the merit or demerit of past cases.

Yet, Roberts was entirely forthcoming in stating an encyclopedic grasp of constitutional and federal law. On abortion, he conceded Roe, as subsequently modified by Casey, to be a precedent worthy of respect, and then prudently declined to guarantee either its immunity from, or certainty of, reconsideration. Roberts also refused to be blamed for Hurricane Katrina or national poverty, and likewise, politely but firmly resisted the caricature of his staff lawyering for the Reagan administration as being against civil rights or women.

Regrettably, some Senators could not resist asking Roberts to make pledges about his Catholic faith. It was ugly when John F. Kennedy was asked this in 1960 and such "religious test" is no prettier over four decades later and contrary to the spirit if not letter of the Constitution. Of course, nothing in the Catholic faith directs judges to disregard their oath of office, so it is easy to put to rest. Nevertheless, when Senator Feinstein asked him to affirm an absolute separation of church and state, Roberts thoughtfully paused. Once again, Roberts simply and plainly reflected that such absolutism is not the text of the guarantee of religious freedom and did not even coincide with the Court's most recent thinking allowing at least some public display of the Ten Commandments.

Overall, Roberts refrained from answers that would undermine the institutional independence of the judiciary or prejudge constitutional controversy. This humility extended even to friendly efforts to liken him to the late Chief Justice Rehnquist, whom Roberts obviously admired and learned from. He would be his own man, Roberts said. And at the end of a very long day, that is a very welcome prospect for the Court and the nation.

Posted by msoller at 12:43 PM | Comments (0)

Talk to Us, Judge

Like Rickey Henderson, Judge Roberts is crouching to keep his strike zone tiny. Ruth Bader Ginsburg did us all a disservice by saying the silly things she did in her hearings about not giving clues or hints, especially since she ended up — as Jed and I and others have pointed out — being much more forthcoming than her stated approach to answering questions would have suggested. (Do as Ruth Bader Ginsburg did, Mr. Roberts, not as she said!)

And I still scratch my head when I try to find coherence in the idea — floated by Ginsburg and seized on by Roberts — that it's OK to talk about past cases the nominee has already talked about outside the Senate, but not OK to talk about cases as to which the nominee has views that have thus far remained unspoken, except perhaps to his friends in various Republican administrations over the years!

I actually thought Senator Lindsey Graham (R-S.C.) was completely right Monday when he said, effectively: "President Bush advertised a conservative judicial philosophy twice in Presidential elections, and the American people bought it. So if Roberts is conservative, that's democracy in action." I agree, but shouldn't democracy also involve transparency? Shouldn't the administration and the nominee now show the American people what they have purchased? Or are is the Administration afraid that the American people might have buyer's remorse if they see the product in more detail than they have ever before (insofar as most folks never really read the dreadfully tedious Supreme Court decisions themselves)?

My own view is that Roberts should be candid in discussing his likely doctrinal conservatism, he should get an up-down vote on the floor, and he will (should?) get confirmed because the Republicans have, after all, won a few elections.

Posted by msoller at 07:55 AM | Comments (0)

September 13, 2005

Stop Ducking in Public

John Roberts repeatedly has refused to answer questions about constitutional protection for abortion, about the scope of privacy protections, about the constitutionality of term limits, about gender equality, and other topics. He says that he cannot express views about matters that will come to the Court. I want a senator to ask him why not?

There are a few possible answers. One is that he has no views on the subjects. But that is not credible since he wrote briefs in almost all of these areas taking consistently conservative positions. Another possible answer is that his views on the constitutional issues have no bearing as to how he will vote on the Court. But no one believes that. A justice's beliefs about whether Roe v. Wade was rightly decided or whether equal protection applies to gender discrimination very much determine how he or she will vote on the Court.

Roberts most likely answer is that it would compromise his impartiality if he told his views. But this, too, is just wrong. We all know Antonin Scalia's and John Paul Stevens' views on abortion, but no one suggests that they must recuse themselves for bias. The fact that a Justice has views does not undermine impartiality because, of course, they all have thoughts and positions. Pretending that the judge is a blank slate doesn't make the judge impartial. As a litigant, I'd much rather know the judges' views than pretend that they don't exist.

Senate Democrats must clearly communicate that Roberts' failure to answer questions is a basis for opposing his confirmation. Democrats need to say that they will not confirm Roberts based just on faith that he won't be the fifth vote to overrule Roe or end affirmative action or allow dramatically more government aid to religion.

Posted by bbuhler at 01:34 PM | Comments (0)

Katrina vs. Roberts

I have it on good authority that today was the first day of the Roberts hearing. But my own work schedule made it impossible to see those hearings, so I checked in on CNN to catch some glimpse of the proceedings. What I saw was an instructive surprise. The entire coverage was devoted to Katrina, and the progress of recovery in New Orleans after the horrible storm. The only text that one saw with respect to the Roberts hearing was in the moving text located below the main story. This is one hearing which was moot.

Overall, I regard this as a healthy development.

The opening statements by the various senators did not, when read, seem to break any new ground. It still remains a surpassingly odd view of constitutional interpretation to think, for example, that anyone who has the temerity to think that there are limits on Congress’s power to legislate under the Commerce Clause should be chastised for showing disrespect for Congress, which earns it when prominent senators speak such silliness from their high positions. And it remains as foolish as it ever was to think that a vote on any issue, including one as important as abortion, should be regarded as a litmus test on the vote. Roberts is surely correct to follow the Ginsburg line, I won’t prejudge cases that I may be called on to decide, and should leave it at that no matter what the provocations he faces.

In the end he was right also to utter platitudes about being an umpire, not a player, and about deciding cases with an open mind and without fear or favor. More importantly, the model of settled expectations (which has no constraint on us academics) is appropriate for justices of the Supreme Court, but it is a presumption, not an hard and fast rule. Brown v. Board of Education is just the type of case that merits a departure as he said. So far so good. Just imagine what anyone would have said if he had done otherwise! But remember, he has said only what any nominee of any philosophical persuasion should state. In doing so, he only reinforces my original position that the whole direct confrontation task is a waste of time in any event, save for this one point. Sitting there alone, and without writing a note, gives the aura of self-confidence that should play well.

So I engage in that most dangerous of speculation, and assume that he has already come out well in the game of crossed swords that is being conducted, out of earshot, as this is written. We are long past the days where any nominee can expect unanimous support for a graceful Congress. But so long as this outcome does not look in doubt, it shall remain difficult to find it in reruns. I feel true to my position on the hearings precisely because I have not seen them live.

Posted by msoller at 10:06 AM | Comments (0)

Judging by Machine

At the risk of belaboring the "umpire" metaphor, like Professor Shugerman, I'm a big fan of John Hart Ely's process-based justification for the activism of the Warren era, but I seriously doubt that Ely would agree that figuring out when courts need to aggressively protect the channels of democracy is much like figuring out whether a pitch has nicked the outside corner of the plate. One requires extrapolation and judgment about the purposes of the Constitution; the other could be done by a machine.

Posted by msoller at 09:52 AM | Comments (0)

You Know Better, Ref!

A person with John Roberts' intellect and experience knows that analogizing a Supreme Court Justice to a baseball umpire is false and misleading. The Supreme Court decides the rules and, in fact, even determines the line-up by deciding what cases to hear. Most importantly, the analogy obscures the tremendous discretion that Justices have to decide the meaning of the Constitution. Deciding whether diversity is a compelling interest to justfiy affirmative action, or whether there is a right to abortion, or whether a vouchers program violates the Establishment Clause is nothing like calling a runner safe or out. A Supreme Court decision is not simply observing a fact, it is making a value choice about what the Constitution means.

Roberts' analogy should make it more difficult for him to refuse to answer questions about his views about key issues where he is likely to case the deciding vote. A baseball umpire could answer questions about any of his or her likely decisions. So should John Roberts.

Posted by msoller at 07:00 AM | Comments (1)

September 12, 2005

Ya Gotta Be Kidding Me, Ump!

There were no surprises in this morning's opening session. The committee members staked out their expected positions, with the Republicans cheerleading and Democrats expressing either concern or presumptive opposition. On the plus side, a number of Senators actually expressed a vision for the Constitution and the role of judges in interpreting it.

As a nation, we don't think about these matters often enough and those who listened in got to hear some occasionally banal but also important talk. As for Judge Roberts, his opening statement [NOTE: Complete day 1 transcript via AP] was, as expected, eloquent, even moving when he riffed on the metaphor of the endless fields of Indiana and the land of opportunity they came to represent for him. Roberts, however, did strike one discordant note — which especially troubled me in an opening statement that must have been worked over countless times. He repeatedly compared the role of a Supreme Court justice with that of a baseball umpire, who just calls the balls and strikes but does not set the rules or pitch and bat.

I'm all for a measure of "humility" in judges, a phrase Roberts invoked several times. But the umpire metaphor takes this to an absurd extreme. The Constitution is not a rulebook; the due process clause with its vague contours is not the infield fly rule or even the strike zone, which is subject to modest interpretation. Roberts' invocation of this metaphor of unrealistic hyper-restraint raises the "he doth protest too much" concern that lies at the center of the inquiry into what kind of justice Roberts will be. Is he still, underneath, the somewhat caustic and sharply ideological conservative of his youth or the much more polished and modest call-'em-as-I-see-them font of modesty and restraint he now projects?

Posted by msoller at 03:33 PM | Comments (0)

Asked and Answered

Are Supreme Court hearings a farce or democracy at its finest?

The portrayal of recent confirmation hearings as a farcical game of cat-and-mouse is unfair. True, the first handful of nominees after Judge Robert Bork’s defeat played dodgeball, not hardball. Justice Clarence Thomas claimed never to have discussed Roe v. Wade with anyone, though the decision was announced while he was in law school. However, the two most recent nominees, Ruth Bader Ginsburg and Stephen Breyer, were much more forthcoming.

Senator John Cornyn and other conservatives assert that Ginsburg refused to answer the Judiciary Committee's questions 55 times, citing the Code of Judicial Ethics' rule against committing oneself to a position on a matter likely to be before the Court. They suggest that the "Ginsburg Rule" is a nominee's right to refuse to answer any direct question on a legal issue. In fact, Ginsburg's rule was that, if she previously had written on the matter, she answered related questions openly. She and Breyer did not "commit" themselves to particular positions, but they directly answered questions on abortion and many other specific doctrinal questions. Ginsburg was more evasive on the death penalty, which was not an area of her academic expertise.

A convenient distinction? Probably. But the point is that in the two most recent hearings, direct questions on doctrine were fair game. If such questions are out-of-bounds, then let's just pack up and go home, and give presidents a blank check on judicial appointments. It's simply not that helpful to hear abstract queries about stare decisis or "penumbras" posed in a dozen different ways.

For more opinion, see Shugerman's op-ed in today's Boston Globe, where he argues that Senators should filibuster any judicial nominee who refuses to answer their questions directly and candidly.

Posted by msoller at 09:27 AM | Comments (0)

Don't Expect a Coronation

The conventional wisdom seems to be that the Roberts confirmation hearings will be a coronation, with Roberts receiving little meaningful opposition. I am not so sure. No Democratic Senator has yet endorsed Roberts as they are waiting to see what the hearings will bring. What should we look for in listening to the hearings?

First, can Roberts explain his views on the most controversial issues in a way that does not cause Democratic Senators to oppose him? Roberts has expressed, in memos and briefs he signed, many of the same views that caused Robert Bork to be rejected in 1987. Roberts has questioned constitutional protection for a right to privacy, urged the overruling of Roe v. Wade, and argued that there is no constitutional protection against gender discrimination. How will Roberts explain these views to the Democratic Senators? Can Roberts point to anything in his record that he won't be the fifth vote to overturn abortion, to eliminate affirmative action, to dramatically change the law to allow more aid to religion?

Second, will Roberts' answers leave the Democrats with the sense that they have no idea what he stands for and thus will try and oppose him on that basis? Roberts' supporters have tried to argue that his memos from the early 1980s were too long ago to be relevant in assessing him now, that the briefs he signed as Deputy Solicitor General are irrelevant because he was serving a client, that the memos he wrote in the Solicitor General's office must remain secret, and that he should not state his views on key issues during the hearings. But if Roberts takes these positions, Democrats likely will say that they cannot confirm him because Roberts and the White House have closed off all avenues of information.

Third, what will the more moderate Senators on the committee do? For example, what will Senators Biden and Feinstein do? Senators Biden and Feinstein are generally more moderate than Senators Kennedy, Leahy, and Schumer. How Biden and Feinstein question Roberts, and the statements they make, may give the clearest signal as to whether Roberts path will be rocky. Feinstein, in particular, is likely to be concerned about Roberts record on reproductive choice, gender equality, and separation of church and state. Significant opposition by the more moderate Democrats could spell a hard fight over Roberts.

Posted by msoller at 09:20 AM | Comments (0)

September 09, 2005

Back to the Big Issue: Who Will Replace O'Connor?

Vik's comments are right on the money. With Roberts now slated to replace Rehnquist rather than O'Connor, he is more likely than ever (and he was always very likely) to sail through the Senate. Substituting Roberts for Rehnquist looks to be an ideological wash. The big issue remains, as it has always been, who will replace the swing-voting O'Connor. And this raises the question of whether President Bush's next selection will reflect his views about the Constitution and its proper interpretation or, instead, the political exigencies of the moment, as the administration is buffetted by the tragedy in on the Gulf Coast and lack of progress in Iraq.

Posted by msoller at 10:51 AM | Comments (0)

September 07, 2005

He Championed the States

The Chief Justice was a gracious man. Awkwardly timid for a man of great intelligence and importance, he was unfailingly kind and personally interested in others.

When he addressed the law graduates of the Catholic University in Washington, D.C., some years back, he gave an inspired address reminding those present of the importance of family and community and balance in a busy professional life. He very much viewed the law as a craft, not a business. He brought order and honor to the Court, by his own preparation, his splendid knowledge of history, and the manner in which his insight vindicated essential aspects of the Constitution, including: a better balance between federal and state power, appropriate respect and accommodation of religious freedom, and the recognition that for many Americans the ownership of a home and the chance to pursue an occupation on fair terms with others was one of the most important civil liberties.

When William Rehnquist sat down to pen a history of the Supreme Court in the late 1980s, he reflected on how Alexander Hamilton viewed the Court as the "least dangerous branch." Given the overriding dominance of the Court in modern times, Hamilton seems in this the least prophetic founding father. Rehnquist was far more realistic.

Rehnquist's long association with the Court dated back to 1952, when this young Milwaukeean by way of Stanford law arrived to take a coveted clerkship with New Dealer Robert H. Jackson. Law clerk Rehnquist records that his California car had no heater — optional equipment in those days — but he would supply his own jurisprudential heat.

The Chief Justice was a soft-spoken man. Conversing with him was like an easy conversation with a backyard neighbor. But the Chief's core values were anything but indifferent. Central among these was an appreciation for constitutional structure. Before being promoted to the center seat, Rehnquist as an associate justice had convinced a slender majority that traditional state functions should not be subject to federal regulation. This revival of federalism lasted exactly 9 years, when Harry Blackmun changed his mind and left the states to fend for themselves, like any other political lobbyist, in the halls of Congress. This infuriated Rehnquist and he vowed that one day he would return the states to their proper place.

He did. If there is a core element of the Rehnquist history, it is that we are a democratic republic that is healthier when "we the people" can experiment with different answers to hard questions. In this, Rehnquist wasn't pro-life or pro-abortion, he wasn't for or against gays — he was simply for letting you and me in our several states make up our own mind — without the Court getting in the way.

Perplexed by the constant reports of his retirement, the Chief Justice vowed last July to serve "as long as his health permits." He kept his promise. Now, with the passing of William Rehnquist, there is good reason to believe that John Roberts, his nominated successor and former clerk, will secure the Rehnquist legacy and enhance it. Indeed, the sentiment of the essayist seems quite apt:

"They are not dead who live in lives they leave behind. In those whom they have blessed, they live a life again...."

Farewell to the Chief.

Posted by msoller at 03:17 PM | Comments (0)

September 06, 2005

Roberts Picked to Replace Rehnquist: First Responses *UPDATED TUESDAY*

Whether the Chief Justice's passing will affect the direction of the Court depends, of course, on whom the President is able to confirm to fill the second (now slotted as Justice O'Connor's) vacancy.

Erwin is certainly correct that replacing Chief Justice Rehnquist with a seeming conservative (like John Roberts) likely won't change too many outcomes; indeed, if people had to pick the sitting Justice whose voting pattern John Roberts' future performance is most likely to approximate, Rehnquist (Roberts' old mentor) would have been the most popular answer.

But now that Roberts is slated to replace the chief rather than O'Connor, Democrats may be able to focus more clearly on how O'Connor's replacement could upset the current balance on the Court. If the President had his wish, perhaps he would have preferred one year with both Rehnquist and Roberts on the Court. Then, a year from now, when he tried to replace Rehnquist with another conservative jurist, the President could (plausibly) argue that he would not be changing the then-existing dynamic.

By contrast, if he tries to fill O'Connor's slot in the coming months with a true conservative — having already filled the Chief's slot with one — he cannot easily deny that the O'Connor replacement will have significant doctrinal implications.

Couldn't the same have been said about the nomination of Roberts to replace O'Connor earlier this summer? Yes, but there are two differences now. First, although Roberts is likely to be more conservative than O'Connor, he is so likeable that his conservatism may not have been attackable by Democrats. There simply aren't that many guys out there like Roberts — whose personal charm, grace and likeability can deflect critisism about his ideology — for Bush to tap and easily confirm.

Second, before the Chief's death, there was always the possibility that the President would appoint a more moderate person to replace him later, to balance off the more conservative move reflected by the O'Connor/Roberts swap. If the President's pick to replace O'Connor this fall is as conservative as Roberts, though, that optimistic possiblity of future balance doesn't exist, insofar as Roberts already would have been installed.

That is why, I think, Erwin is right that Democrats would like to know the identity of the second half of the 1-2 punch before responding to the first, but I'm not sure they'll have that chance.

President Bush has made a shrewd move in shifting John Roberts from being the prospective replacement for Sandra Day O'Connor to being the prospective replacement for his former boss Chief Justice Rehnquist.

For conservatives, the greatest concern about Roberts is the possibility that he may "evolve" to the left, like Justices Harry Blackmun and (to a lesser extent) Anthony Kennedy. For liberals, the greatest concern about Roberts is that he may become a William Brennan of the right — a justice who draws others into his orbit by dint of intellect and charisma. If Roberts becomes chief fustice he will be ideally placed to use his considerable interpersonal skills to advance a very conservative legal agenda.

President Bush's selection of John Roberts to be the next Chief Justice profoundly changes the dynamics of the Roberts confirmation process. Roberts replacing Rehnquist does not shift the Court's ideological balance. From all that is known about Roberts, he is likely to vote in the same conservative manner as Rehnquist. But this again makes the crucial question who will replace Sandra Day O'Connor, who has so often been the swing vote in key 5-4 decisions protecting civil liberties and civil rights.

Democrats need to insist that they will not vote on Roberts confirmation until after O'Connor's successor is named. The Senate needs to evaluate both picks together in assessing their impact on the Court, now and for years to come. Also, Democrats need to make clear that since President Bush has already picked a hard core conservative in Roberts for one vacancy, the other selection needs to be a more moderate Republican in the mold of O'Connor.

Posted by msoller at 09:32 AM | Comments (1)

September 04, 2005

Rehnquist: Rapid Reactions *UPDATED SUNDAY*

Unlike replacing Sandra Day O'Connor, replacing William Rehnquist will not change the ideological balance of the Court.

President Bush's selection for this seat on the Court almost surely will share Rehnquist's conservative ideology. It will mean that this seat on the Court will be held by a conservative for another two or three decades. But it highlights the importance of the nomination of John Roberts: O'Connor was the fifth vote in the majority in key areas like abortion, affirmative action, campaign finance, and the separation of church and state. Her replacement thus has the ability to change the law dramatically in many areas.

President Bush will face the choice of elevating a current justice to chief and picking a new associate justice, or selecting someone not on the court for chief. Although Rehnquist was on the Court when he was named chief, his immediate predecessors, Warren Burger and Earl Warren, were not on the Court when nominated to be chief justice.

Realistically, only Antonin Scalia or Clarence Thomas are possible nominees for chief justice from among the current justices. Anthony Kennedy is far too unpopular with conservatives to be named chief because of his opinions striking down the juvenile death penalty and the Texas sodomy law. Nominating either Scalia or Thomas would produce an enormous fight. But would President Bush welcome this as a way of enhancing the chances of picking someone just as conservative for that vacancy? President Reagan did exactly that in 1986: he elevated Rehnquist to chief and then nominated Scalia for that vacancy. Democrats decided to target Rehnquist and did not challenge Scalia.

The last time there were two vacancies at the same time was in 1971 when John Marshall Harlan and Huge Black steped down. Without a doubt, replacing them with Lewis Powell and William Rehnquist had a dramatic effect on constitutional law for decades. John Roberts is 50 years old. If the new vacancy is filled with someone the same age and they serve until they are 85, the age of current Justice John Paul Stevens, they will be there until 2040. That is why the confirmation process matters so much.

Dwight Eisenhower was fond of quoting this definition of an intellectual: someone who took more words to say less than he knew.

By that definition, the late William H. Rehnquist was, most decidedly, not an intellectual. He had little patience for the obscure and fine-spun theories that preoccupy academic discussion about constitutional law issues. He was, I think, innately suspicious of the Ivy League mode of analysis that so often drives modern constitutional scholarship. Even though he went to Stanford Law School, he remained true to his Wisconsin roots.

His work as a justice was faithful to his conception of the role. His opinions were always workmanlike and clear. He was excellent at marshalling evidence, working his way through a record, and coming up with conclusions that were true to his premises. I do not think that he had any grand judicial philosophy, but he had a strong set of instincts which for the most part led him in the right direction. His instinctive caution kept him from pursuing his position to the end of the road. Let me just mention four cases that come to mind.

First, his early 1978 dissent in Penn Central v. City of New York, where he took exception to the decision of Justice Brennan that landmark designations did not work a compensable taking of the subject property, in that case the air rights over the Grand Central Terminal. The Brennan opinion was an ingenious brew of all sorts of arguments about why regulations were not the same as occupations. It introduced the clever, but ultimately unsound argument, that the question of whether property has been taken depends on the fate of the whole parcel, not just some fraction thereof. It is the classical kind of error associated with judicial minimalism. For it gave no indication of what to do in the countless cases where regulation involves multiple interests in a adjacent plots of land subject to overlapping ownership.

Justice Rehnquist, as he then was, was not taken in by this high-flying talk. He noted that the long tradition of taking law said that singling out given individuals for more stringent treatment was the telltale sign of a taking. The spot-zoning involved in that case met that test. He would have required compensation. But typical to his nature, he would not travel the whole way and rethink the constitutional status of all zoning laws to see if they could pass muster. In so doing, he did not answer the question of what should be done when entire areas, for example, were subject to special treatment. But that was his nature. Don’t get to the big issue if there is a way to slow down the train on the smaller ones.

He and Justice Brennan also squared off in Weber v. Steelworkers Union, on the constitutionality of affirmative action. The Brennan opinion is notable for its specious ingenuity on statutory construction, for taking a color-blind statute and gutting it in so far as it applied to what was in 1964 termed preferential treatment. Rehnquist would have none of that but marshal powerful evidence as to the basic intention of the 1964 Civil Rights Act, which he would not upgrade by judicial slight-of-hand. But he would never ask the larger question of why the federal government has any business regulating employment relationships generally. His style was more limited.

A third landmark was his ingenious majority decision in United States v. Lopez, where he was able to do what no serious constitutional law scholar thought possible. Find a principled way to distinguish the earlier cases, most notably Wickard v. Filburn, in order to show that some activities did lie outside the scope of the commerce clause. In one sense this was his most enduring contribution because it injected an element of uncertainty where before everyone thought that so long as Congress wants it, it is constitutional. But again, for all the flak he took, he did not go the whole nine-yards. He distinguished the Wickard decision, and showed no willingness to overturn it.

Finally, I think that he did a good job in Bush v. Gore, not for the majority equal protection decision which covers far more than it ought, and upsets the basic view that inadvertent deviations from some equality norm do not count as violations of the clause absent some suspect classification. But I thought that he did a masterful job in arguing that the Florida courts had so overstepped their bounds in gutting the Florida legislation, that the outcome of the Florida recount was not as the state legislature had directed, as is required in Article II. His decision would have hit the one case that mattered; brought attention back to the result-oriented jurisprudence of the Florida Supreme Court, and kept us clear of the misguided extensions of equal protection law.

In sum, he was an ingenious lawyer in the sense that he was most proud. He could move the law interstitially, with clarity and imagination, and without the overblown rhetoric that characterized opinions of his more “learned” opponents.

In addition to his jurisprudential contributions — presiding over a Court committed to reempowering states, etc. — the Chief was a very skillful administrator. The Court ran very well under his leadership, and he personally got along great with people whose legal philosophies were very different than his own.

Also, it should be noted how long the Chief served on the Court. His almost 34 years on the Court places him, I believe, among the 5 longest serving Justices in American history. Editor's note: Rehnquist was one of four justices with 34 years on the court. The others are Stephen J. Field (1863-1897), Hugo Black (1937-1971), and William J. Brennan, Jr. (1956-1990). Only William O. Douglas (1939-1975) served longer.

Chief Justice Rehnquist was one of the very few most important figures in the long history of American law.

He was also an extremely generous, good, and decent human being. This is a time for mourning.

Posted by msoller at 07:27 AM | Comments (2)

August 28, 2005

A Court v. Congress Case Summary

An annotated guide to the debate over the question: Should the Supreme Court rein in Congress?

Yeshiva University's Marci Hamilton wants Congress restrained:

For the sake of whichever party is out of power in Washington, the answer has to be "yes." Congress has come to view itself as an entity with plenary power to enact any law it desires. To date, the Rehnquist court has produced a very modest federalism doctrine that checks congressional exercises of power only on the margins. The court took a serious misstep last term when it held in Gonzales vs. Raich that the state of California could be forbidden from legalizing medical marijuana because the federal government is engaged in a comprehensive war on drugs. That decision betrayed the principled heart of federalism, which is to permit the states to be 50 social experiments. There is no reason for Congress to be able to trump a wholly intrastate activity involving health, safety and welfare.

Douglas Kmiec of Pepperdine took on Congress:

The Rehnquist court has sent confusing signals on the scope of Congress' commerce power. Chief Justice William Rehnquist recurred to James Madison's observation in Federalist 45 that "the powers delegated by the proposed Constitution to the federal government are few and defined. Those which remain in the state governments are numerous and indefinite." The powers remaining in the state governments today are still indefinite, but after Gonzales vs. Raich this past term, they are also less numerous.

In Raich, the court extended federal power by holding that Congress could prevent a woman with a brain tumor from using a home-grown substance to survive.

Harsh? Yes. Unconstitutional? Apparently not.

But Lawyer Edward Lazarus defended lawmakers, arguing that they have exercised restraint:

Last time I looked, Congress wasn't really up to too much except the usual orgy of pork-barrel politics. In the last decade or so, it is the executive branch and the Supreme Court that have expanded their authority and that pose a greater immediate threat to our freedoms than Congress.

It is certainly true that Congress is capable of lots of ill-advised legislation but, generally speaking, I still prefer the mistakes of elected legislatures to the mistakes of unelected, life-tenured Supreme Court justices, who have shown themselves to be plenty fallible.

And the University of Chicago's Cass Sunstein had his back:

The Rehnquist court has invalidated more than three dozen acts of Congress, and some of those invalidations are extremely hard to defend.

Of course it is appropriate for the court to enforce constitutional limitations, but the court's appropriate posture is one of humility and modesty in reviewing the decisions of a coordinate branch of government.

Richard Epstein refused to take a side:

As I read the remarks of Ed Lazarus and my colleague, Cass Sunstein, I could not resist thinking back to the famous Gershwin line, "I need someone to watch over me." Change the singular to the plural and we have the position of both Congress and the states.

The problem in most cases is not whether Congress or the states are better at protecting the liberties of ordinary subjects. Sometimes neither does a particularly good job.

Hamilton took aim at Lazarus:

Eddie has vastly underestimated the power of national interest groups behind the scenes — scenes the vast majority of voters will never enter — to push policy their way.

Liberals make a major misstep when they accede unlimited, or unchecked, power to Congress, especially in an era when gay marriage is on the table. The institution of marriage is fundamentally a state-law issue. Federal intervention is unconstitutional under existing case law. Preserving states' rights in areas like gay (or not gay) marriage serves everyone's interests in the long run — more experimentation and more power to those out of power in D.C. On Eddie's reasoning, though, Congress could usurp the state's power over marriage at will and impose a one-size-fits-all marriage formula on the country.

Lazarus shot back:

I wonder whether the gays and lesbians in Texas, Georgia and Colorado — the states whose hateful anti-gay laws have triggered Supreme Court cases — realize that their real enemy is the federal Congress? Marci talks in fine-sounding generalities about the value of federalism to progressives, but pardon me if I have my doubts.

Erwin Chemerinsky reminded us of the showdown just ahead:

Will Supreme Court nominee John G. Roberts Jr. favor dramatically narrowing the power of the federal government and denying it the ability to enact necessary legislation? That is the key question in the discussion over federalism. For example, Justice Clarence Thomas has argued that Congress' power to regulate interstate commerce should be limited to regulating economic transactions and that Congress' spending power should be greatly curtailed. If this were the law, every federal environmental law, most federal criminal laws, many federal civil rights laws and countless spending programs would be deemed unconstitutional. If this is Roberts' view, he should be denied confirmation.

Posted by msoller at 08:37 AM | Comments (1)

August 18, 2005

I Got Your "Unchecked Power" Right Here

A response to Marci Hamilton: Will John Roberts favor dramatically narrowing the power of the federal government and denying it the ability to enact necessary legislation? That is the key question in the discussion over federalism. For example, Clarence Thomas has argued that Congress's power to regulate interstate commerce should be limited to regulating economic transactions and that Congress's spending power should be greatly curtailed. If this were the law, every federal environmental law, most federal criminal laws, many federal civil rights laws, and countless spending programs would be deemed unconstitutional. If this is John Roberts' view, he should be denied confirmation.

Professor Hamilton argues that the Court should narrow Congress's power in the name of protecting states' rights. But her last post reveals that she begs the key questions. She condemns "irresponsible enactments" and laments "unchecked power." Neither of these criticisms reflects the reality of the Supreme Court's decisions.

As for "irresponsible enactments," the Court used federalism to invalidate a law requiring states to clean up their nuclear wastes and to strike down a statute requiring states to do background checks for permits for guns. The Court used federalism to invalidate a federal law that allowed victims of rape and domestic violence to sue in federal court after finding, in a voluminous legislative history, that state courts often failed to provide adequate remedies. These hardly were irresponsible enactments.

As for "unchecked power," state and local laws that violate individual rights always have been reviewable in the courts so it is wrong to speak of "unchecked power." Indeed, the Supreme Court's federalism decisions have enhanced the unchecked power of state governments by greatly expanding sovereign immunity. Because of the Rehnquist Court's decisions state governments cannot be sued, in federal court or state court or federal agencies, without their consent. For example, the Supreme Court has held that a state cannot be sued if it violates patent law or discriminates on the basis of age or fails to pay overtime as required by law. This is unchecked power.

The crucial question is where John Roberts in on these issues. Will he follow the precedents since 1937 which have accorded the federal government needed authority to deal with social problems? Or will he favor radical new limits on necessary authority? If the latter, he should be rejected.

Posted by msoller at 10:55 AM | Comments (1)

August 17, 2005

Congress Needs a Hip Check, Not a Blank Check

The accumulation of congressional power has been incremental over the decades it was freed from meaningful limitation, starting in the 1930s. The fact that it has been unchecked for decades is hardly an argument for keeping the status quo. Had the Framers' core belief been that all men who have unchecked power will likely abuse it, Congress might have evolved into a more responsible branch during its unchecked era. Current legislative results, however, argue to the contrary, as I point out in my previous posts (here, here and here).

Congress did manage to pass "landmark" legislation between the 1930s and now, including the Civil Rights Acts. As the Court has repeatedly stated in its Sec. 5 opinions, the Civil Rights Act stands despite a states' rights doctrine. At the same time, Congress has passed gutless legislation, like the Clean Air Act, which sets no standards, and mountains of pork barrel, as it has shamelessly pandered to religious interests. The question is how to reduce the irresponsible enactments and increase accountability — not whether it ever passed any worthwhile legislation.

Posted by msoller at 01:45 PM | Comments (1)

August 16, 2005

This Ain't a New Deal

Marci writes as if the breadth of Congress' power — and, thus, the debilitating diffusion of its focus — is a new phenomenon. Actually, the broad view of congressional power has been settled constitutional law for almost 70 years (since the New Deal) — with the Rehnquist Court now turning the clock back to some degree. During these seven decades, the country somehow managed to muddle through and Congress even managed to pass lots of landmark legislation, including all the major civil rights and environmental laws. In short, it is ahistorical to blame recent congressional failings on the scope of congressional power.

Posted by msoller at 02:32 PM | Comments (0)

Power's Playground

Erwin says:

No one is talking about eliminating state and local governments.

No one wants to eliminate the state and local governments themselves — just their power. The question of federalism is all about the division of power between the federal and state governments. Between the unchecked pork barrel spending, the delegation of policy making to the executive branch, and the de minimis checks on Congress's power, the Capitol building is a literal playground for our elected representatives. It's bad for the states, bad for the people, but also bad for Congress.

Under the current regime, it is impossible for any member of Congress to say to a constituent that the problem mentioned is beyond his or her jurisdiction. Every issue is Congress's issue, which means its resources are scattered and its focus is far off the horizon of the national common good (where the Framers hoped to train it). It is in the members' interests to have federalism enforced, though no politician (or human, for that matter) gives up power willingly.

Posted by msoller at 02:26 PM | Comments (0)

Someone to Watch Over Them

As I read the remarks of Ed Lazarus and my colleague Cass Sunstein, I could not resist thinking back to the famous Gershwin line, “I need someone to watch over me.” Change the singular to the plural and we have the position of both Congress and the states.

The problem in most cases is not whether Congress or the states are better at protecting the liberties of ordinary subjects. Sometimes neither does a particularly good job. Lazarus bemoans the sad state of public sentiment on the issue of gay rights, including those who want to have marriage ceremonies approved by the state. If we had a stronger sense of individual liberties against all government interference, then Lawrence v. Texas would not stand out like a sore thumb. The state conceded that there was no health interest for the statute, so all that is left to justify state restrictions through its licensing power is the sentiment of the majority that does takes offense at how other individuals lead their own lives.

The right answer to that is not to block them with state powers but to use the power that private organizations have (or least should have) to shape the moral views of their own smaller communities. This framework talks about strong rights of association and limited police power justifications. It sounds like an extension of the Lochner formula, whose revival would be a most welcome development here as in the area of economic liberties.

I also take issue with the Sunstein position that Senator Specter is onto something good when he raises the usual anxieties over the commerce clause. I can’t think of any strong reason why "humility and modesty in reviewing the decisions of a coordinate branch of government" squares with a sensible system of judicial review. It certainly should not be used to give Congress a blank check on civil liberties issues. Nor should it allow the federal government to run roughshod over the states which also count as a coordinate branch of government.

Perhaps there is something in decisions like Lopez and Morrison which give others pause, but I can see no reason for having the federal government weigh in with a second set of sanctions on matters such as gun usage and criminal rape which are already dealt with under state laws. The question here is whether there is any strong textual, structural, historical or functional argument that supports the extravagant use of federal power under the commerce clause. I have yet to see any demonstration in favor of the modern expansionist position on any of these grounds.

Posted by msoller at 02:13 PM | Comments (0)

Congress Should Mind Its Own Business

Congress does not attack enough of the "big national problems," because it has been given plenary power to address every single issue a constituent brings to its door. There was no crying need for the Gun-Free School Zones Act, but because Congress did not even question its power, it spent its resources doing that while it did not address other, far more pressing national problems.

Federalism keeps some issues in the states, leaving the federal government to focus more clearly on what is national in nature. (The additional reason that Congress does not tackle the tough issues, is because the Court has permitted it to delegate the hard policy choices to the executive branch and administrative agencies, so it is both unaccountable and capable of addressing every issue in the universe. This is an institution with no meaningful checks, which yields vapid legislation and a focus that has drifted from that which Congress was supposed to do to whim.)

With respect to Eddie's examples, just which "righteous" lawsuits has federalism precluded? The end of the Religious Freedom Restoration Act meant, e.g., that parents could no longer claim the right to avoid child support because they lived in a religious commune that required them to keep all of their money there. It meant religious groups had to obey neutral, generally applicable laws, which is as it should be.

Garrett held that the states could not be sued under the ADA, but that is hardly a blow to civil liberties, because the fact is that virtually every state recognizes disability rights. The ACLU quickly settled the ADA cases from other states that were pending at the Court so that the Court would have to address the Alabama [Garrett] case, because that was the only state without disability rights. The Court, therefore, has struck down redundant legislation. And why is that? Because the states are no longer the backwater for civil rights they were in the ’60s. The same interest groups that lobby at the federal level have been lobbying at the state level for years.

I think if the Court had decided Raich, the medical marijuana case, differently, you and other liberals would look at federalism differently. But Raich was decided incorrectly, to put it mildly.

Posted by bbuhler at 12:28 PM | Comments (0)

What About States’ Wrongs?

I wonder whether the gays and lesbians in Texas, Georgia, and Colorado — the states whose hateful anti-gay laws have triggered Supreme Court cases — realize that their real enemy is the federal Congress? Marci talks in fine sounding generalities about the value of federalism to progressives, but pardon me if I have my doubts.

There’s a reason that, historically, conservatives have championed states’ rights. In large swaths of the country, progressives don’t have a chance. And even in more liberal states like California, those highly organized and cohesive groups that Marci mentions have pushed through regressive measures, like the cap on property taxes that makes a hash of state fiscal policy as well as the state ban on affirmative action and needlessly punitive measures against undocumented aliens. Meanwhile, the Court’s federalism jurisprudence has really advanced the progressive cause, striking down anti-gun legislation, insulating states from righteous lawsuits, and limiting the ability of federal courts to correct the injustices of state court criminal law processes often overseen by elected judges who know better than to kill their careers by enforcing constitutional rights.

You won’t find me extolling Congress’ virtues. As Marci notes, Congress passed the unfortunate Schiavo bill. But the bill — as subsequent events showed — was almost totally symbolic and never posed a realistic threat to Florida’s control over family law and end of life matters. (Indeed, it would not have passed Congress if it had been really substantive.)

Moreover, if, as I suggested, the federal courts curb political gerrymandering, it would (as many scholars have noted) have the effect of bringing to Washington many more moderates of both parties — thereby making future Schiavo bills that much less likely. In any event, the real problem with Congress is not that it over-intrudes on state prerogatives, but that it doesn’t do enough to tackle the country’s big national problems — which is why I put additional judicial checks on congressional power rather low on my priority list.

Posted by bbuhler at 12:27 PM | Comments (0)

The Federalism Facade

The discussion between Marci Hamilton and Eddie Lazarus about federalism points to an important issue for the Roberts confirmation hearing: Will John Roberts be a vote on the