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Right at this moment, the Supreme Court is not an issue in the campaign, although partisans on both sides will no doubt keep trying to make it one as we get closer to November.
One reason the court is not an issue right now is that the chief justice has done a superb job of lowering the court's profile. It's hard to get the nation worked up over disputed interpretations of the Employment Retirement Income Security Act, for example. The intensity of the gun battle should not obscure the winning Roberts combination of taking fewer cases overall, taking fewer controversial cases in particular, and encouraging the issue of narrowly drawn opinions. That is all to the good, even if it makes it more difficult for Sen. McCain to stoke up an intellectually tired conservative base by raising the hoary specter of judicial activism. He hasn't been successful thus far, in part because activism is not nearly the problem that he describes it to be.
Sen. Obama is both more perplexing and intriguing on the judicial nomination front. Perplexing, because he voted against (mistakenly, in my judgment) two of the most talented jurists on the bench, John Roberts and Sam Alito, even as he conceded they had the intelligence, capability, and proper judicial temperament. Intriguing, because Obama's stated basis of opposition was a suspicion that these nominees were not sufficiently empathetic with the needs of the average person. Sen. Obama himself, of course, has great empathy for those who are often overlooked by the political process, and it will be fascinating to see how that attractive quality can be translated into identifiable and appropriate selection criteria for the men and women he would want serving on the bench.
It is widely speculated that the next nominee of either party will be a female, and that is likely, given the persistent reminders of Justice O'Connor (not to mention speculations about Sen. Clinton). But the inescapable consequences of the actuarial tables—as well as the personal desires of some of the senior members of the court—will probably result in a two or more vacancies in the next presidential term.
So if gender were not a consideration, is there a standout judicial candidate who could reorient the confirmation process away from real or imagined concerns with "activism"—and be acknowledged as superior in quality, temperament, and personal ethic of concern?
Yes: Carter G. Phillips, the managing partner of the Sidley Austin law firm in Washington, D.C., who argued a remarkable five cases this term, bringing his total before the court to 50 in private practice with an additional nine during his service in the SG's office. There is not another advocate in the country who is as respected for his impartial legal judgment, personal integrity, and genuine friendship and assistance to his fellow members of the bar and to his community. There is also not an advocate before the court who wouldn't desire to have work product be so well thought as to merit colloquial reference by the Justices from the bench, as occurred during the Grutter oral argument with their frequent reference to the "Carter Phillips brief." Phillips is also the right age, 56, and with the circumspect demeanor of his mentor, the late Rex Lee, Phillips is one of those rare individuals of stature who could rather remarkably be seen as a nominee of either party.
There are other men and women who could (and should) be thought of: for McCain, Judge Diane Sykes of the 7th Circuit and former SG Paul Clement come readily to mind; for Obama, Kathleen Sullivan or Judge Merrick Garland of the D.C. Circuit would surely be contenders; and I suppose there are even people with gun racks who would appeal to Bob Barr. But if the objective is to transcend political division, there is no one better than Carter Phillips.
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Well, it looks like John McCain will have to stop using Roberts-Alito as if it were one word to describe his preferred type of judicially restrained nominee.
In recent disquisitions about judges, McCain has been trying to simultaneously shore up his conservative base without riling up his moderate friends. It's a difficult rope to walk without hanging oneself. Indeed, the conservatives have already noted a McCain tendency to flatter Roberts and Alito but to omit the more controversial (to moderates) Scalia and Thomas.
Now McCain has a new problem. Roberts and Alito are going different ways. What is a candidate trying to rely on the caricature of judicial activism to do?
Justice Alito has twice rejected the chief justice's willingness to allow government activities immunity from the jurisprudence of the dormant commerce clause that preserves an interstate market from economic protectionism (Kentucky Department of Revenue v. Davis this term and last term United Haulers v. Oneida-Herkimer Solid Waste Management Authority both thoughtfully discussed by Lyle Dennison on SCOTUSblog), and today these Reagan fraternity brothers are divided over an important age-discrimination case. Justice Alito took a lot of heat for carefully parsing the statute of limitation under Title VII last year, which denied a gender-discrimination lawsuit as being beyond the time permitted to sue (Ledbetter v. Goodyear). Roberts agreed with him on that one. Today, in Gomez-Perez v. Potter, however, Alito and Roberts divided again over an age-retaliation claim under the ADEA, with Alito allowing it.
The Alito opinion is a testament to meticulous statutory analysis, fully utilizing text and legislative history as well as situating the decision in the larger body of civil rights and employment statutes and precedent. It gives lie to the notion that Alito is pro-business or anti-employee, so prominently alleged during his confirmation hearing. As his colleagues on the 3rd Circuit knew (and testified, contrary to the academic sniping), Justice Alito is simply pro-reading-the-law-carefully. That is not to say the chief justice doesn't read statutes well—it's just that his dissenting opinion today puts far more emphasis upon a speculation drawn from why the executive branch has separately treated retaliation claims for federal workers differently than can be found in the text and structure of the statutory regime.
What should not be lost, however, is that even as Alito and Roberts disagree, it is a disagreement that is both civil and broadly incorporating of respect for precedent and legislative history.
And what about Justices Scalia and Thomas—those great unmentionable ones to Sen. McCain? They separately dissented in Gomez-Perez because of, among other reasons, one suspects, Justice Scalia's well-known dislike for any mention of legislative history.
Oh, and to make things more interesting, Roberts-Alito split together from Thomas-Scalia in a second case, CBOCS West v. Humphries, implying a retaliation claim under Section 1981, a statute that deals expressly with race only. Thomas and Scalia have made a point of emphasizing that racial discrimination and retaliation for racial discrimination are not one in the same. Analytically, it is a sound point. Unfortunately, it is also a point that the court has rejected several times, and that precedent (right or wrong initially) is too embedded in the overall structure of civil rights law to be set aside, a point nicely highlighted by Emily.
Will the real judicially restrained judge please step forward? Using the canard of widespread judicial misbehavior is just not in the cards for John McCain. We are the better for it, and the independent-minded John McCain of 2000 would have agreed.
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Thanks, Orin, for replaying some of my greatest hits on the judicial role and the separation of powers. As I mentioned in my earlier posts on Sen. McCain's remarks, he and I are in large agreeement on the quality of Chief Justice Roberts and Justice Alito, and unlike him, I am willing to openly add Justices Scalia and Thomas—who seem rather expediently missing from the senator's listing of judicial exemplars. Even candidate McCain's likely opponent, Sen. Obama, has written openly that he is "not unsympathetic to Justice Scalia's position [on originalism]." One is tempted to say to Sen. McCain, "Yes, you can!" Have the courage of your convictions, man. That said, as I earlier wrote, Sen. McCain did have fine and unexceptional things to say about the judicial duty to observe the structural provisions of the Constitution.
But it still seems quite unwise and unfortunate for candidate McCain making his major speech on the judiciary to:
1. Lead with an unwarranted and unhealthy condemnation of the Third Branch, which candidate McCain described as "the common and systematic abuse of our federal courts by the people we entrust with judicial power." Common! (putting aside the good-faith efforts of extraordinary Democratic appointees like Merrick Garland and David Tatel, how "common" can the "abuse" be if there have been 20 years of Republican judicial personnel added to the federal bench since 1981?)
2. Attack the Constitution, itself, which I take it is what McCain means by systemic! Candidate McCain glancingly posits that the founding design of the Constitution leaves the court unchecked, when Article III clearly does not. This, unfortunately, reveals less understanding of the separation of powers than his rhetorical flourishes of praise for constitutional structure elsewhere in his text lead us to believe.
3. Have as its real purpose slamming Sen. Obama's mistaken vote against John Roberts and Samuel Alito. Now, we are on to something, but instead of saying something new or helpful about the difficulty of constitutional interpretation, the names of these venerable public servants are trotted out like bumper stickers. Candidate McCain makes no effort, and since he was speaking at a university with a law program of some note, one might have anticipated one to engage the topic in other than partisan and time-worn fashion. It's not as if Sen. Obama's judicial philosophy is hard to find. It would, for example, appear much influenced by Stephen Breyer's theory of Active Liberty. While giving "reverence" to the founding design, Sen. Obama, like Justice Breyer, believes constitutional principle not to be "static," with its "general principles" promoting active democratic participation while at the same time capable of dealing with the 21st century realities of "NSA computer data mining, ... freedom of speech on the Internet," and the like.
It would be a fine debate worthy of the next national convention of the Federalist Society and the ACS to undertake a serious examination of the competing interpretative views of the McCain-Obama contest. As Orin points out, Sen. McCain and I apparently both thought originalist material was not sufficiently relied upon as applied to the facts of Roper v. Simmons. While that was a juvenile death-penalty case, it is interesting that Sen. Obama in the somewhat different contexts of "mass murder, and the rape and murder of a child" finds the death penalty to be warranted. Since this is an area of substantive agreement on a sensitive and controversial topic, candidate McCain might have used his academic address to make some genuine contribution to the debate by examining why in judicial reasoning, it's not just policy agreement that counts, but how one gets there.
The point remains: The McCain speech unfairly attacked the good-faith service of the Third Branch generally; asserted in cursory fashion constitutional flaws that were not shown by the senator to exist; and took a snarky, partison swipe at his likely general-election opponent, whose writing contains a similar concern to that raised by Sen. McCain, that too often "Republicans no less than Democrats ... [have] asked the courts to overturn democratic decisions ... that they didn't like." Sen. Obama, whose judicial philosophy pays heed to originalist principle but does not rest there, openly questions whether his party "in [its] reliance on the courts to vindicate not only our rights but also our values ... had lost too much faith in democracy."
A small amount of research by candidate McCain's talented legal-advisory group would find both points of interpretative disagreement, within intriguing overlaps as well as points of accord with Sen. Obama. Wrestling with that reality would have been an interesting and honest talk. Indeed, that would have been the kind of talk someone interested in not being politically confused as offering only a third George W. Bush term might have been most anxious to give. Instead, candidate McCain chose only to warm over the tired commentary of the past, even that given by a tired old professorial soul like myself, while adding his own unique signature of political diviseness, constitutional mistake, and gratuitous insult to those who are presently serving on the bench. Frankly, I like my version better, and a new, substantively honest discussion of the important role of the courts in our constitutional system would have been the best of all.
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In covering John McCain's effort to win friends with the conservative base by praising Chief Justice Roberts and Associate Justice Alito (which I agree they deserve, not because they are reflexively conservative, but because they are jurists who are admirably dedicated to an objective appraisal of the law as written), the national media missed the big, and more troubling, story: McCain wrongly attacked both the Constitution and Article III judges.
McCain's claim that there is "systemic abuse" of the federal judicial office is an occasion not to praise him but to ask his apology for the overwhelming legions of federal judges who serve with distinction and at modest pay often without acknowledgment. To say that McCain meant only to single out the few who defy text, and who justly warrant and receive reversal, is to overlook the intemperate sweep of the McCain condemnation of the Third Branch. In his obvious effort to, well, pander, Sen. McCain did a disservice to these public servants and, as I earlier wrote, falsely assailed the Constitution for a flaw that does not exist, and insidiously undermines public trust in the fairness of the judicial process. Let McCain's overbroad and unrefined words speak for themselves:
There is one great exception in our day, however, and that is the common and systematic abuse of our federal courts by the people we entrust with judicial power. ... With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states.
This is not straight talk; it is calumny.
The Democratic response issued by DNC Chairman Howard Dean was scarcely better. Dean's feeble, and partisan, tit-for-tat effort to paint the chief justice and Justice Alito as "activists" is so thin that it makes one want to engage in the practice for which Dean is most famous: scream. Dean's response, which shows no appreciation for the solid points Sen. McCain did make about the importance of observing the constitutional structure, illustrates a serious problem for presumptive nominee Barack Obama: Sen. Obama may want to bring his party to a higher, more noble plane where reason is recognized not to be bounded by its red or blue origin, but the leadership of his party apparently still wants to fight in the gutter.
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John McCain's harsh assessment of the federal judiciary is unworthy of him.
While his praise for the separation of powers and judicial restraint is fine, and unexceptional, Senator McCain's suggestion that there is a flaw in the constitutional design or that the Supreme Court is an unchecked, or renegade body is simply off-base.
There is no flaw, Congress has virtually plenary authority over the Court's appellate docket. Congress can withdraw cases from the Court if it believes matters have been wrongly handled, and perhaps more importantly, it can mandate that the Supreme Court handle a full range of cases so that it has less time and less discretion to find itself tempted to mischief. The fact that the Congress leaves these powers largely untouched may have more to do with what distresses Senator McCain than judicial activism.
Since Congress has it within its authority to keep the constitutional system in balance, it is imprudent and unfair to once again make judges the scapegoat for the constitutional outcomes with which one disagrees. Certainly, it is vast overstatement to claim that there is some "common and systematic abuse of our federal courts by the people we entrust with judicial power." Or that "for decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges."
I have just returned from having the privilege with the Solicitor General of discussing with Justice Scalia and the judges of the U.S. Fifth Judicial Circuit the methods of constitutional and statutory interpretation. To a person, every judge present, regardless of the president who appointed him or her, spoke in earnest about faithfully adhering to the rule of law. It is a simple fact that the conventional meanings of language do present issues that are difficult or indeterminant or not fully addressed by the legislative body.
While Senator McCain is to be thanked for the praise given the Chief Justice and Justice Alito, it is unbecoming and two-dimensionally partisan to imply that Justices Breyer and Ginsburg are ipso facto out of the mainstream or that there is some "systemic" disregard of the judicial oath by the men and women who serve their nation in the Third Branch in the lower courts at a salary that is dwarfed by extraordinary levels of work and the burdens of the office.
David Barron is right, Senator Obama should take the opportunity to outline his own understanding of judicial role and philosophy, and it might begin with a more fair and honest assessment of the judiciary. Like Senator McCain, I often concur with the particular constitutional outcomes that John Roberts, Sam Alito (and powerfully intelligent Antonin Scalia who McCain curiously left off his praise list) often determine, though it devalues their service to imply that these jurists are worthy merely because they have arrived at a conservatively happy ending in given case. Because the legal questions presented to the Court are seldom self-evident, these men have disagreed with each other on some not insignificant matters, including federal commerce limitations on state power, and most recently, the Chief Justice had more agreement with Justice Stevens in upholding Indiana's choice to require a government voter ID than his former Reagan administration colleagues.
It is poisonous to the health of the constitutional system to trash the Court as venal politicians. In truth, a general word of thanks from Senator McCain, and his leadership in the Senate to approve a much-needed and long overdue pay increase for federal judges, would be more statesman-like and welcome.
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The "facial" vs. "as applied" distinction animates the minimalism of the Roberts Court. You may remember that Chief Justice Roberts gave a speech at Georgetown shortly after his confirmation, saying that what doesn't have to be decided in a case shouldn't be. But, of course, Chief Justice Roberts also said that he would be pursuing a larger number of unanimous outcomes—an aspiration that seemed to run aground in his second term when the court had one of the highest number of 5-4 opinions in decades. But the "facial/as applied" distinction that resurfaced in the Crawford voter-ID decision and that has played prominently also in areas of abortion (Ayotte; Carhart) and more recently in the lethal-injection case (Baze v. Ky) reveals that some may have dismissed the chief's efforts at achieving unanimity, or at least greater consensus, prematurely.
As the not entirely ideological 6-3 configuration in the Crawford case reveals, pronouncing an Act of Congress or a whole legislative enactment by the states to be unconstitutional on its face is strong medicine, and for that reason, it is especially unlikely to be pursued by any member of the court inclined toward preserving the idea of a more-tamed judicial posture. Justice Stevens may be substantively liberal, but in terms of his understanding of the judicial role, he is a moderate conservative. His dissent in Bush v. Gore, after all, was about keeping the court out of the presidential election. By distinguishing between the facial and as-applied challenge, Justice Stevens satisfies both sides of his personality: He can be conservative in facial outcome by upholding the statute's general contours while preserving and signaling that he would be substantively liberal in application—e.g., in Crawford being relatively quick to find in a later case that a specific election requirement was burdensome. For somewhat different but overlapping reasons, the "facial/as applied" distinction appeals to Justice Kennedy's Hamlet personality, since he can be for and against the statute at the same time—which may sound flippant, but it in fact reflects Justice Kennedy's commitment to particularized justice. See, e.g., his separate opinion in Rapanos (indulging a multifactored analysis of navigable waters under the Clean Water Act) or Parents Involved (similarly indulging the possibility of some uses of race that are not specifically visited upon the student, but might be used to lessen racial stratification by, for example, a siting decision of where to build a new school).
It should be noted that the "facial/as applied" distinction did not begin with Roberts, though it has been more successful under him. Chief Justice Rehnquist sought to use the distinction in the context of his handcrafted doctrine of 11th Amendment sovereign immunity, but there, he was using it not to sustain legislation, but to strike it down. Consider, for example, Rehnquist's proposed use of the distinction in Tennessee v. Lane. Rehnquist would have found the ADA to be invalid under the 11th Amendment on the theory that Congress had not legislated in a congruent and proportional way to address unconstitutional state behavior in a sufficiently targeted fashion. Rehnquist was able to reach this conclusion because he conceived of the proper focus to be facial rather than as applied. In other words, Rehnquist in essence told Congress that it could not legislate more broadly than necessary. In doing its legislative work, Congress had to think of the full range of applications of the statute as against the states and not just a particular application. As Professor Vik Amar once astutely pointed out, since Congress could not tell the states that they had a duty to accommodate the disabled in a public hockey rink as well as a state courthouse, the ADA, which had language that could cover both, was facially unconstitutional, even if in Lane it was properly applied to the denial of courthouse access. Note, however, how using the "facial/as applied" distinction in this way stands the general canon of constitutional interpretation that facial challenges are the most difficult to mount on its head. Rehnquist was effectively seeking to use that facial characterization to limit congressional power more easily, not to be more deferential to it.
It is sometimes said that the jurisprudence of John Roberts is a mere continuation of the Rehnquist era. There is some truth to that. But a closer examination of how the two chiefs employ the "facial/as applied" distinction differently—with Roberts setting a narrow compass of judicial activity and Rehnquist pursuing a more aggressive, less deferential judicial role—undermines that assertion.
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Sen. Clinton may or may not be the next Democratic nominee for president. But her candidacy represents to many voters a positive statement in favor of gender equality.
I've cast my lot with Sen. Obama, but if he fails to cross the finish line, I bet it will have less to do with the overheated statements of his pastor or his bowling than with the fact that—however much the Clintons together generate suspicion or should be eliminated on the democratic (small “d”) “no second rides” theory—Mrs. Clinton is still, well, a woman and more than a few citizens (myself included) think having a woman president long overdue.
Why overdue?
Because, frankly, I have three daughters among my five children and it would be salutary if they would be less subject than my wife’s generation to arbitrary gender-based impediments as they reach toward their aspirations. For more than 30 years now, I’ve watched highly talented women law graduates face the same overly rigid law-firm and corporate structure that somehow pretends not to know that many (not all) women have a desire to both practice their chosen profession and parent. I’m all for the free market, but the market has been treating families as if they were a free good, and just as “the tragedy of the commons” despoils the commonly held air and water, corporate elevation of its bottom line over family well-being shortchanges the family—and us all.
Men, of course, too often silently shrug this off as if it were none of their business, perhaps even thinking again silently (since openly would yield a cold stare or litigation) that gender-based distinctions are not arbitrary impediments at all but simply the rational economic calculus applied. Of course, we men know it's darn hard to do parenting and professional work at the same time, which is, of course, why most of us don’t attempt it. So it came as no surprise when, lo and behold, a recent Canadian study by Jean E. Wallace and Marisa C. Young proved the obvious that women with children are less “productive” than women without children.
As I indicate in additional commentary on this study, and as Emily Bazelon has noted, “productive” is in scare quotes because the study measured productivity in accordance with the dreaded billable hour, which persists in making law practice a modern form of well-paid slavery, rather than service—which, digressing just for a moment, the practice might have a chance of becoming yet again were flat or contingent fees the more standard means of law-firm accounting. In any event, apart from the severe damage the billable hour does to the sheer enjoyment of legal work, it is not a perfect measure of productivity, since obviously some people can get a lot more done in a small amount of time than others, and women are often superb multi-taskers.
Confirming as it does that we men are not particularly helpful when it comes to making the family-work balance possible, it’s tempting to hide the Canadian study under the rug. That's not to say that husbands don't lend moral support to our personal spouse's effort at not forgetting those grueling years of law, business or medical training as she is singing the alphabet song for the 15th time or is driven to the edge by the "see and say" machine. Some men—especially guests on Oprah—do this and more. It's just that—if we're honest—kicking doors open for women generally at the office has not been high on our to-do list—what with foreign outsourcing and all. In fact, according to the Canadians, men may be giving family-friendly benefits a bad name. Things like flexible hours were found to have a negative impact on a man's productivity while working at odd hours didn't affect a woman's productivity one whit. Men, it seems, tend to use these flexible hours to goof off, while women use them to finish drafting the merger agreement while waiting interminably in the doctor's waiting room. Second, men with babies at home work overtime. Go figure. Third, even when men attempt to do more of the parenting, they're not that very good at it. The study found that men who have a stay-at-home partner get a lot done, whereas women who have stay-at-home husbands don't receive any particular advantage from it.
None of this is particularly encouraging for those of us who believe the workplace—still dominated by men, of course—has a special obligation to accommodate the needs of the family as an irreplaceable cultural building block. Indeed, one “unexpected”—though perhaps not surprising—finding given the above pattern is that women without children work the hardest of all, including men. It's bad enough that men are seemingly misusing the flex benefits; just think what the male senior partners will rationally deduce when the word gets out that the hardest worker bee in the hive is the childless queen. To quote the researchers themselves, the obvious way for women “to balance work and family is to reduce their family commitments, which may be accomplished by having fewer or no children.” Yes, that's one way, but it is also a prescription for cultural suicide.
We like to think work is for the benefit of men and women and not the other way around. At least, the last time I checked this was the right order of things. The reverse proposition—that we live to rack up billable hours—would be bleak indeed, though that is pretty much the life of a young associate at any major law firm in the United States. To have a chance at getting our priorities straight, I suggest some changes in employment practices, nondiscrimination, and tax law, but would being family-friendly violate Equal Protection?
Possibly to a justice who doesn’t think child-rearing an important or compelling state interest. But who’s in that group? Surely Justices Ginsburg and liberal-thinkers like John Paul Stevens and David Souter wouldn’t want the law to be construed in a way that narrows a woman’s choices. Since under existing law pregnancy (or “pre-birth child care”) cannot be a basis of discrimination against women, why should care delivered “post-birth”? It would make no sense for either Justice Thomas, who flirts with natural law, or Justice Kennedy, who is often its modern source—worrying as he does about the ability of folks to “define their own place in the universe”—to object to giving a public tax subsidy or telling public employers not to discriminate against working mothers. If the limitation extended to private employers, Justice Thomas might drop a footnote telling us again how much he misses the original understanding of the commerce clause, but he has let similar measures go through biting his stare decisis tongue. Those in the law-as-umpire (“just callin’ em as we see ‘em”) group, the chief justice and Justices Scalia and Alito, might raise a judicially-restrained eyebrow at these innovations, but it would be perverse if those who oppose an unfettered abortion right were to go out of their way not to understand the relevant customs and traditions that underlie the “liberty” of the Fifth and 14th Amendments as family-friendly. And if these measures promote a more “active liberty”—and expanding opportunities for women does, one would think (though I confess the whole “active liberty” concept still is a tad elusive)—Justice Breyer should also be satisfied. In any event, any law is certain to be drafted gender-neutrally, using terminology like "primary caregiver" (though everyone will know that category will still mostly be women).
The presidential candidates like to talk about change. It is time we explore new employment relationships that don’t reflect 19th-century attitudes that undervalue home and family to the detriment of us all.
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[by Rich Ford]
Diane,
Here's a take on Snyder and words left unsaid: Justices Roberts' and Alito's position in Snyder is perfectly consistent with a strict and rigorous colorblindness interpretation of the equal protection clause-- i.e. the same position they both adopted last term in Parents Involved in Community Schools v. Seattle. The equal protection clause is now as likely, if not more likely, to block race conscious efforts to remedy racial injustice as it is to block racial discrimination as conventionally understood. And so ironically, making it difficult to establish an equal protection violation-- once a conservative position--may soon be in the way of conservative efforts to reverse and prohibit race conscious remedial policies. So, if the Court can parse the record for evidence of discrimination in preemptory strikes can it also, say, parse the record for evidence of race consciousness in a selective university's admissions decisions or a local government's decision to award a contract to a minority owned business? This isn't to say their positions were cynical and strategic, but Supreme Court Justices do decide cases with weight of precedent in mind. I'm just suggesting that the ideological terrain of equal protection jurisprudence is trickier than it once was and it may be that we're simply looking a reorientation of conservatism in Roberts and Alito. Could this explain why so much was left unsaid?
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Stopping the Justices from voting before they know the answer –
A proposal for reversing the internal operations of the Supreme Court of the United States.
Douglas W. Kmiec
Heller has already been identified as a test of the fidelity to precedent and restraint of the Roberts Court. That following oral argument, it seems possible if not likely that the Justices will disregard or minimize the significance of the militia clause of the Second Amendment and decide that there is a right of self defense that nowhere exists in the present text of the Constitution presents a unique challenge to that reputation. Putting aside whether that is or is not a defensible constitutional outcome, it is institutionally important for the outcome to be arrived at by means other than mere assertion.
When the Justices assemble around the table in the Chief’s outer office to decide D.C. v. Heller, they will follow the usual practice of voting on the outcome first and only then researching to justify and explain the outcome. With due respect to the Court’s tradition, that methodology is backwards. It is also subversive of public confidence in the Court. In a difficult case, like Heller, where the historical materials, linguistic analysis, and constitutional considerations are plentiful and largely being examined conscientiously for the first time, it is all the more important for the Court to follow the scientific method of doing the research and writing first before deliberation and vote. Reversing the process would have the benefit of: avoiding the appearance of elevating politics over law by actually avoiding the temptation to substitute politics for law. By engaging in the difficult work of legal research and analysis of existing text, history, and precedent before any of the members of the Court are asked to reach an ultimate determination, the Court can increase the odds of writing coherently and with greater unity. Those witnessing this morning's oral argument know that task will be difficult. The analytical strands and possibilities from the meaning of the English Bill of Rights of 1689 to Mr. Madison's expectations of draftsmanship to the deficiency (or not) of precedent, to the nature of trigger locks require Herculean effort to assemble into a proper answer. If they were fully candid, I venture the Justices would concede that at this moment they possess at best a tentative conclusion. Why vote before a fulsome examination of the law by reference to a complete exposition of what one member of the Court would offer as the most honest and defensible constitutional judgment. No one would buy a common appliance not knowing if it could be constructed to perform its intended task. Why ask Justices to accept opinions that have yet to be fully formed?
Who would write the opinion if a preliminary vote were not taken first for purposes of assignment? Quite simply, the Justice next in line for a writing assignment who is fully up to date with his or her work. Once and for all, the residual politics of confirmation would be set aside and only Court administration would govern. Yes, this would deprive either the Chief Justice or the senior associate justice, most often, John Paul Stevens, of the right of assignment, but that deprivation would be in pursuit of a higher order good to which I venture both the Chief Justice and Justice Stevens would subscribe: the elevation of the rule of law and the strengthening of the respect for the Court as an institution.
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[Doug Kmiec]
Oh, Second Amendment, we hardly knew ye.
The Second Amendment has two main parts: a preamble and an operative provision. The preamble: "a well regulated militia, being necessary to the security of a free state," is a statement of purpose. The operative provision: "the right of the people to keep and bear arms, shall not be infringed” is a provision that employs a collective "the people," and in this, it would not seem well-suited to convey the idea of an individual right.
This was the interpretation more or less given the Second Amendment by the Supreme Court in United States v. Miller in 1939. The court concluded that the possession or use of a short-barreled shotgun had no reasonable relationship to the preservation or efficiency of well-regulated militia, and therefore, the Second Amendment posed no limitation to its federal restriction.
Fast-forward to 2008—does the Miller opinion and the language of the Second Amendment mean that the District of Columbia can preclude the possession of a handgun even within one's home?
The best—but unlikely—answer: This is the District of Columbia and, unlike a state, Congress has plenary authority over it, and an amendment that is a limitation upon congressional power vis a vis the states is of no relevance. End of case, see ya in Salzburg, Tony.
This is not likely the answer since the justices themselves formulated the question granted cert to directly relate to states. “Does [the D.C. law] violate Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?” If things are going badly for D.C. tomorrow, maybe it might ask politely why the issue as formulated is not an invitation to advisory opinion.
So, what else might the court do? With a total of 69 briefs on file, the court has received plenty of advice with all kind of novel answers. Some fancy footwork from usually reliable originalists would simply disregard the preamble. It adds nothing to the operative provision, they say. Really? What happened to the interpretative admonition to give meaning to every word?
To see the Second Amendment in this structural way is not to make it an odd duck, but to treat it akin to the establishment clause. The establishment clause as originally understood (and before the invention of judicial incorporation) safeguarded state-established churches. In the case of the Second Amendment, what was safeguarded was the ability of the state to call up its citizens for service in the militia with their own guns at the ready. BYOG—see ya down at the square, Festus.
Since no state today expects individual citizens to bring their own weaponry into militia service, what, exactly, does the Second Amendment safeguard now?
Miller might be said to protect the right of citizens to access the kinds of weapons usable in today’s state guard units that are within the customary control of individuals—e.g., handguns and rifles, but not missile launchers and M-16s. This is possible, but the right should only apply if the particular state actually runs their militia BYOG, and given the deficit budget of California, are you listening, Arnold?
Respected Second Amendment scholar and my former OLC colleague Nelson Lund finds a broader right preventing "Congress from using its Article I authorities, including its authority to regulate the militia, to disarm American citizens." Professor Lund reaches this conclusion by conceding that the concern foremost in the minds of the founding generation—fear of a tyrannical federal government—has subsided, and in any case, an armed citizenry would not likely be able to deter a heavily weaponized federal government. There’s no getting around it—there is today a significant gap between civilian and military small arms, whereas in the 18th century, Americans commonly used the same weapons for civilian and military purposes.
Now, constitutional obsolescence is an unusual thing, but as an original matter, it need not be wrong. We may be used to constitutional rights having expanded application in light of new technology (e.g., the Fourth Amendment implications of electronic wiretapping abandoning the old trespass requirement for an unreasonable search), but there is no reason to believe that modern development might not also mean contracted application. Such may indeed be the second-best case of restraint—the first, escaping through the D.C.-is- not-a-state escape hatch, now looking ever so more attractive.
Since the Second Amendment is no longer needed or perhaps capable of performing its anti-tyranny function, Professor Lund would have the court substitute a new purpose for the Second Amendment, the right of self-defense—which indeed has a long English common law heritage—it’s just not related to the Second Amendment. Lund’s argument is interestingly premised upon natural law principles (which would immediately prompt me to like them), including the Declaration of Independence, and a liberal reading of William Blackstone who saw no distinction between "a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression." Notably, Lund says, Blackstone made no distinction between oppression by the government itself and oppression that the government fails to prevent.
Natural law this may be, but it is not restraint. If the Roberts Court finds a self-defense right based on the government’s failure to act, it will in fairness be obligated to awaken Joshua DeShaney from his coma and bring the Gonzales girls back to life, for in both cases, the court adamantly denied (albeit under the due process clause) that the Constitution was “a guarantee of certain minimal levels of safety and security.”
It will indeed be interesting to see if the American Constitution is transformed from a protection of negative to affirmative liberty at the point of a gun.