Friday, July 03, 2009

Indeterminacy   [Gerard V. Bradley]

07/03 12:05 PMShare

Thursday, July 02, 2009

Still More on the Courts and Equal Protection   [Anthony Dick]

Professor Bradley, I think your last post nicely illuminates our disagreement, but I’m having trouble seeing the grounds for the asymmetry that you posit. Section Five only grants Congress power to enforce the provisions of the Fourteenth Amendment, and nothing more. The courts base their rulings on the same provisions of the same Amendment, and you admit that the courts have some legitimate authority to enforce the Equal Protection Clause. So if Congress can legitimately interpret the Amendment as forbidding school segregation, why can’t the Supreme Court do the same? It seems to me that this interpretation is either legitimate, or it is not, and the answer to this question binds Congress and the courts in equal measure.

You seem to suggest that Congress is better positioned than the Judiciary to ascertain the meaning of the Fourteenth Amendment, but I don’t see why this is so. In fact, if anything, judges are by their training better suited to interpret and analyze legal texts. There might be prudential reasons to prefer that Congress interpret vague constitutional provisions instead of the courts — i.e., Congress is more accountable to the people and thus more democratically legitimate.  But these reasons are prudential and not clearly constitutional. Indeed, arguably one of the most important roles of an independent judiciary is to apply constitutional limitations free from popular impulses, even when (especially when) these limitations operate in a counter-majoritarian way. After all, we wouldn’t need constitutional constraints if we simply left every question up to majority rule.

07/02 06:13 PMShare

Ambassador Kmiec   [Jonathan Adler]

Well, Douglas Kmiec won't get a judicial nomination in return for supporting Barack Obama, but he is going to become the Ambassador to Malta.

07/02 04:26 PMShare

More on EPC and the Courts   [Gerard V. Bradley]

Anthony supplies some needed balance and context to the remarks I posted yesterday. I surely agree with him that, from my remarks, it does not follow that EPC claims were meant to be non-justiciable, or that courts lacked all power to enforce section one. I did not mean to be heard to suggest otherwise.

Anthony disagrees (or at least, questions) one thing which does follow from what I said yesterday. I think that Anthony's use of Marbury means that he holds the following position: the judicially ascertainable meaning of section one — such that a court would be acting rightly as an Article Three body in striking down a state law on Equal Protection grounds — is co-extensive with Congress's section five enforcement power.  I reject this position. The example I used yesterday will do today as well: I think that Congress had the constitutional power (under section 5) to legislate that public schools in the states be de-segregated.  I am not sure that — as far as those who ratified the Fourteenth Amendment understood it — courts had the authority under section one to desegregate those schools. It seems to me that Anthony rejects this asymmetry (just to give the phenomenon a name).

07/02 03:23 PMShare

Re: EPC and the Courts   [Anthony Dick]

Professor Bradley, your input is very welcome. I don’t think the historical record is so clear that the ratifiers of the Fourteenth Amendment wanted Congress to play such a permanently dominant role in interpreting and applying the Amendment’s provisions. It’s true that Reconstruction Republicans had a profound distrust of the Supreme Court and the rest of the judiciary, fueled most prominently by the Dred Scott decision, which they viewed as an outrageous example of judicial activism in service of the slave-owning South. This was a big part of the reason they gave Congress enforcement power, to provide an alternative mechanism of legislative authority to ensure that the Fourteenth Amendment would not be simply disregarded by a hostile judiciary.

But it just doesn’t follow from this that Equal Protection claims were meant to be non-justiciable, or that judges were to lack all power to strike down state laws that violate the Fourteenth Amendment. The ratifiers gave Congress enforcement power not because they didn’t want the judiciary to enforce the Amendment, but because they were worried that the judiciary would not in fact do so. They were afraid, in other words, that the judiciary would abdicate its responsibility to apply the requirements of the Constitution. And it is clear that this is a responsibility of the judiciary.

When a citizen asserts that he has been injured by a state that has denied him the equal protection of its laws, Article III empowers the courts to hear that claim as a case arising under the Constitution. The judiciary then has an independent obligation to determine how the Constitution applies, as was well settled for more than half a century before the Fourteenth Amendment was ratified. As Justice John Marshall wrote in Marbury v. Madison:

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

07/02 01:25 PMShare

“Public Support for Sotomayor Falls After Supreme Court Reversal”    [Ed Whelan]

That’s the headline from Rasmussen Reports on its analysis of its latest survey of public opinion on the Sotomayor nomination.  Even more striking is that the survey shows that more Americans believe that the Senate should defeat her nomination than confirm it—by 39% to 37%.  That’s within the survey’s 3-point margin of error, to be sure, but it reflects a net 10-point swing against Sotomayor from two weeks earlier. 

I have no illusions that this (perhaps temporary) shift in public sentiment towards Sotomayor makes it realistic to imagine that her nomination might be defeated.  But I think that it does illustrate that Sotomayor’s rejection of the ideal of colorblindness and her deep-seated quota mentality are unpopular with broad swaths of the American public—and that Senate Republicans can profitably develop these themes as the basis of their opposition to Sotomayor. 

07/02 10:19 AMShare

Wednesday, July 01, 2009

EPC and Colorblindness   [Gerard V. Bradley]

To the very useful exchange in progress between Anthony and Ramesh I would add an invitation to anyone who considers the question to un-learn their constitutional law. I mean that it is very hard for us to assimilate to our thinking to the fact — and I think it is indeed the historical fact — that Congress and not the courts was meant to be the principal expositor of the Amendment. One reason it is so hard for us to get it is that even judicial conservatives have yoked Congressional power under section five to the judicially declared meaning of section one. See, e.g., City of Beorne v. Flores.

But the historical evidence supports the conclusion of constitutional historian William Nelson, in his very fine 1988 book, The Fourteenth Amendment: From Political Principle to Judicial Doctrine. Nelson wrote, for example (at p. 110) that the Amendment "was understood less as a legal instrument to be elaborated in the courts than as a peace treaty to be administered by Congress in order to secure the fruits of the North's victory in the Civil War."  And at p. 112: Republicans "assumed that Congress, acting pursuant to section five, would possess primary jurisdiction to enforce the amendment . . ."

If we really hold tight to this fact, we can come to a different appreciation of the indeterminacy of the equality norm — such as it was — in section one. That vagueness may seem to us to be a case of irresponsible drafting, because we see it as a black hole into which today's judges will — even, are obliged — to pour their own value choices. But whatever else one might say about the Amendment's drafters, this queasiness should ease once we accept that the drafters put such value choices where they belong — in the nationally representative body we call Congress.

As to the precise question about colorblindness, I think the legislative history of the 1875 civil-rights act shows that a solid majority believed that section five authorized Congress to command color-blindness as a norm of state action. It is, however, a different question whether section one itself required the same.

07/01 04:34 PMShare

Re: Judge Sotomayor’s Misreliance on Foreign and International Law   [Ed Whelan]

Two weeks ago, I discussed Judge Sotomayor’s terribly muddled April 2009 speech in which she offers a blanket defense of freewheeling resort to foreign and international legal materials.  I now have an unofficial transcript of the speech (the video of which is available here) and offer these longer excerpts from it, together with my brief bracketed commentary.  I have in some very minor instances cleaned up the transcript to eliminate false starts.  I’ve also included references to the corresponding portions of the video.

[0:00]  I always find it strange when people ask me, “How do American courts use foreign and international law in making their decision?” I pause and say:  We don’t use foreign or international law, we consider the ideas that are suggested by international and foreign law. That’s a very different concept. [EW:  Hunh???]  And it’s a concept that is misunderstood by many, and it’s what creates the controversy that surrounds—in America especially—that surrounds the question of whether American judges should listen to foreign or international law.  And I always stop and say, how can you ask a person to close their ears? 

Ideas have no boundaries, ideas are what set our creative juices flowing, they permit us to think. And to suggest to anyone that you could outlaw the use of foreign or international law [EW:  But I thought that she didn’t “use” them?  What happened, in the space of a few sentences, to her supposedly fundamental distinction?] is a sentiment that’s based on a fundamental misunderstanding. What you would be asking American judges to do is to close their minds to good ideas, to some good ideas—there are some ideas we may disagree with for any number of reasons.  But ideas are ideas, and whatever their source—whether they come from foreign law or international law, or a trial judge in Alabama, or a circuit court in California or any other place—if the idea has validity, if it persuades you, si te convince, then you are going to adopt its reasoning. [EW:  Note the utter failure to connect the “validity” of the idea to the substance of the American law being interpreted.]  If it doesn’t fit, then you won’t use it. And that’s really the message that I want you to leave with here today.  [2:41]

[14:20] All of this said is not to suggest, however, that we don’t use the ideas of foreign courts in some of our decisionmaking.  Very recently in New York, for example, the Court of Appeals in New York looked to foreign law to decide how to interpret the contract rights under the uniform, under the treaty for contracts.  Similarly, California has used it in other contexts, so have American courts. 

But this use does have a great deal of criticism.  The nature of the criticism comes from, as I explained, the misunderstanding of the American use of that concept of using foreign law. And that misunderstanding is unfortunately endorsed by some of our own Supreme Court Justices.  Both Justice Scalia and Justice Thomas have written extensively criticizing the use of foreign and international law in Supreme Court decisions.  They have a somewhat valid point. They argue that because there are so many international and foreign laws and so many of them vary, that a judge can look to the law of any country to support his or her own conclusion because they’ll find someone who will agree with them. [EW:  Scalia’s and, I trust, Thomas’s primary argument against the use of contemporary foreign and international legal materials is the (usual) irrelevance of those materials to determining the meaning of provisions of the American Constitution and federal statutory law.]  So it’s easy to say this is a good idea because England likes it, forgetting to mention that Russia doesn’t, Russian law doesn’t, or vice versa. It is a point that is validly taken, but I think I share more the ideas of Justice Ginsburg in thinking or in believing that unless American courts are more open to discussing the ideas raised by foreign cases and by international cases that we are going to lose influence in the world. [EW:  What a bizarre rationale.] 

Justice Ginsburg has explained very recently, in an address to the South African Constitutional Court, that foreign opinions are not authoritative, they set no binding precedent for U.S. courts, [EW:  Yes, justices who are just making it up anyway always want the freedom to pick and choose] but they can add to the story [sic] of knowledge relevant to the solution of a question.  And she’s right.  We have looked in some Supreme Court decisions to foreign law to help us decide our issues.  So, for example, in Roper v. Simmons, Justice Kennedy noted that for almost a half century the Supreme Court has referenced the law of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment prohibition of cruel and unusual punishment.  And in that case the Supreme Court outlawed the death penalty of juveniles in the United States. 

Similarly in a recent case, Lawrence versus Tribe [sic], the Supreme Court overturned a Texas state law making it a crime for two people of the same sex to engage in certain intimate sexual acts, and the Justice referred to the repeal of such laws in many, many states and in many countries of the world.  In both those cases, the courts were very, very careful to note that they weren’t using that law to decide the American question, they were just using that law to help us understand what the concepts meant to other countries and to help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking. There may well be times where we disagree with the mainstream of international law, but there is much ambiguity involved. And I for one believe that if you look at the ideas of everyone and consider them and test them, test the force of their persuasiveness, look at them carefully, examine where they are coming from and why, that your own decision will be better informed.  [EW:  Again, what connection does this have to the substance of the American law being interpreted?]  [19:50]

[20:50] To the extent that we as a country remain committed to the concept that we have freedom of speech, we must have freedom of ideas, and to the extent that we have freedom of ideas, international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system.  [EW:  Non sequitur alert!  Why is it that “international and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system”?]  It is my hope that judges everywhere will continue to do this because I personally believe that it is part of our obligation to think about things, not outside of the American legal system, but that within the American legal system we’re commanded to interpret our law in the best way we can. And that means looking to what anyone has said to see if it has persuasive value. [21:51]

07/01 03:49 PMShare

The Judicial Power in a Fallen World   [Anthony Dick]

Ramesh, I’m open to taking into account the background assumptions of the framers concerning the scope of the judicial power. I don’t think they wanted the judiciary to be as deferential to legislators as you do, especially where legislators have so thoroughly abdicated the responsibility of constitutional fidelity.

But the question of what role the judiciary should have in enforcing the Constitution is distinct from the question of what the individual provisions of the Constitution mean. I know you're skeptical of this distinction. But at the very least, it matters a great deal in practice, since the realistic chances of the judiciary becoming as deferential as you want it to be are very low for the foreseeable future. If I were in your shoes, I think my view would be: As long as the judiciary is so aggrandized in its role as constitutional enforcer, however improper this is, conservatives would do well to stay theoretically engaged in the modern practice of judicial review so as to develop a positive vision of how the Constitution should be applied in cases that come to bar. This task is made easier by the fact that the framers were conservatives (or, more fittingly, classical liberals).

07/01 02:48 PMShare

Playing the Quota Game   [Ed Whelan]

In her notorious 2001 Berkeley speech titled “A Latina Judge’s Voice,” Judge Sotomayor discussed what she called “Latino representation” in the federal judiciary.  As she put it:

[W]e have only 10 out of 147 active Circuit Court judges and 30 out of 587 active district court judges.  Those numbers are grossly below our proportion of the population.

I’m struck not only by Sotomayor’s blatant quota mentality but also by her comparing the percentage of Latino judges in the federal judiciary to the overall percentage of Latinos in the population—rather than to the percentage of Latino lawyers, or, better yet, to the percentage of Latino lawyers who had the age, experience, and other qualifications to be plausible candidates for federal judgeships.

What percentage of lawyers are Latino?  According to the ABA, in 2000 the percentage of lawyers who were “Hispanic” was only 3.4%.  If one were to play the quota game, then one might easily argue that Latinos were “overrepresented” in the federal judiciary, since the very numbers that Sotomayor complained about equate to 6.8% of federal appellate judges (double the percentage of Latino lawyers) and 5.1% of district judges (half again higher than the percentage of Latino lawyers).  The disparity would presumably be greater if the pool of lawyers was limited by age and experience.  (In 1990, only 2.5% of lawyers were Hispanic.)

One way to win at the quota game, of course, is to fudge the numbers.  In this regard, I’ll note that the Hispanic National Bar Association recently stated that it represented the interests of some “38,000 U.S. Hispanic attorneys, judges, law professors, law graduates, law students, and legal professionals.”  (See page 2 of this 2007 Supreme Court amicus brief.)  That number seems to fit well with the overall estimate of some 1.14 million attorneys in the United States in 2007.  But now, the HNBA suddenly claims to represent the interests of “the more than 100,000 Hispanic attorneys, judges, law professors, legal assistants, and law students in the United States and its territories.”

07/01 11:14 AMShare

Tuesday, June 30, 2009

Re: Has Justice Souter Actually Retired?   [Matthew J. Franck]

I got some grief four years ago, on the occasion of Justice O'Connor's announced intention to retire, when I argued that until she was gone for keeps there was no vacancy even to nominate to—and that it was improper for her to stay on at the beginning of the October 2005 term.  I was too much of a purist, I guess, and I think Ed is right that staying until appointment is permissible—even if retirement of A and appointment of B are simultaneous.

As for Souter's retirement, I have seen it reported that he told his fellow justices he would not return after the summer recess, just as his letter indicates.  If this remains his settled purpose, it has some potential impact on the confirmation calendar for Judge Sotomayor.  Here's why:

Yesterday the Court set Citizens United v. FEC (the Hillary: The Movie case) for reargument—but not during the new term that will begin October 5.  Instead, briefs are requested for deadlines in late July and August, and oral argument is scheduled for September 9.  With the Senate set for its annual summer recess from August 10 through September 7 (Labor Day), the Democrats will naturally take the view that Judge Sotomayor should get a confirmation vote before the recess.  In fact, Sen. Charles Schumer and White House press secretary Robert Gibbs already picked up on this yesterday, arguing that the Court needs to be at full strength in September to hear the Citizens United case.  And it is difficult to imagine a full-dress debate on Sotomayor's nomination before August 10, with the vote postponed until September 8, while a postponement of the debate and vote until after Labor Day would leave the Court at eight justices when this important case is heard.

So did the Court set this argument calendar with a view to slyly giving the Senate a push on the Sotomayor nomination?  That seems unlikely.  So why schedule the unusual special session?  There is precedent for this in campaign finance cases.  McConnell v. FEC was argued on September 8, 2003, with a decision coming down on December 10 of that year.  It seems the Court likes to square away campaign finance cases before the electoral season goes into full swing.  So look for a decision in Citizens United before the new year.

But intentionally or not, the Court just made it harder for Republicans to push for any extra time on the Sotomayor nomination.  That is, if Justice Souter really means to return to New Hampshire for good.

06/30 05:56 PMShare

Colorblindness, Again   [Ramesh Ponnuru]

Anthony, I believe you are reading the narrow interpretation Bradley mentioned too narrowly. There's no reason to assume a limitation to physical damages. You are right that McConnell supplies some evidence that some supporters of the amendments believed in colorblindness, which I am happy to concede is evidence (albeit weak evidence) that the amendments mandated it. I wonder, though, why the background political-philosophy assumptions of the ratifiers or drafters or both should be relevant to our interpretation, as you have argued, but their background assumptions about the scope of judicial power should not be. McConnell adduces no evidence that anyone in the late 1860s conceived of the Reconstruction Amendments as an expansion of judicial power (let alone primarily as such).

06/30 03:31 PMShare

Re: The Colorblind Constitution   [Anthony Dick]

Although the term “color-blind,” later made famous by the first Justice Harlan in his dissenting opinion in Plessy v. Ferguson, was not uttered during the debate, proponents of the bill used synonymous formulations. Representative John Lynch stated that “[t]he duty of the law-maker is to know no race, no color, no religion, no nationality, except to prevent distinctions on any of these grounds, so far as the law is concerned.” Sumner quoted from Smith v. Gould, that “[t]he common law takes no notice of negroes being different from other men,” which he then paraphrased as “[the law] makes no discrimination on account of color.”  Sherman said that the way to restore peace in the South was to “[w]ipe out all legal discriminations between white and black, . . . make no distinction between black and white.” Representative Richard Cain, a black congressman from South Carolina, stated that “my understanding of human rights, of democracy if you please, is all rights to all men, . . . without regard to sections, complexions, or anything else.”

You quote Gerard Bradley to suggest that the Equal Protection Clause might require nothing more than an equal application of the physical protections of state law against crimes like rape and murder. This extremely narrow reading of the text would require only that no person be left “outside of the legal community in a virtual state of nature.” I grant that this is a possible reading, but it strikes me as a stretch, and I haven’t seen any independent evidence to support it. There are all kinds of judicially cognizable injuries and impairments of legal rights that a state can impose and distribute unequally among its citizens; so why would the ratifiers have been concerned only with physical harms?

06/30 01:18 PMShare

Has Justice Souter Actually Retired?   [Ed Whelan]

On May 1, Justice Souter sent a letter to President Obama in which he stated, “When the Supreme Court rises for the summer recess this year, I intend to retire from regular active service as a Justice ….”  (Emphasis added.)  Many folks appear to regard this letter as embodying Souter’s act of retirement, but that’s far from clear to me.  It seems instead merely to set forth his then-existing intention to retire at a later point. 

Compare the retirement letter that Justice O’Connor sent to President Bush, dated July 1, 2005:  “This is to inform you of my decision to retire from my position as an Associate Justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor.”  It seems to me that it would be good form for Souter to send a similar letter to President Obama (stating his decision to retire either immediately or upon the confirmation of his successor).  So far as I’m aware, he hasn’t done so.

A few additional points:

1.  It’s an interesting question just what a judge needs to do in order to retire.  As I understand it, the usual practice is to send a letter to the president stating the decision to retire.  But other alternatives—e.g., a letter to the Chief Justice or to the chief administrator of the judge’s court—might well be adequate.

2.  There’s also an interesting question whether a judge may retract a decision to retire at some future date (or conditional on some future event).  My recollection from my OLC days is that there is at least one instance of a judge doing so.  As I recall, the judge informed the president of his decision to retire on a date certain because of poor health, but he sought to retract that decision when his health improved in the intervening period.  I believe that OLC opined that the retraction was permissible.

3.  None of this has any practical bearing (at least, not yet) on the Sotomayor nomination.  If he hasn’t done so already, Souter needs to retire before President Obama can appoint Sotomayor to the Court—or, arguably, at the same instant in which he appoints her—but he doesn’t have to do so before nomination and Senate confirmation occur.  (The reason for my offset phrase in the preceding sentence:  In some instances, justices or judges have confusingly retired upon the appointment of their successors.  That creates the metaphysical dilemma of how an appointment can occur to a seat that becomes vacant only once the appointment occurs.  As I recall, OLC has deemed retirement and appointment to be simultaneous in such instances and thus viewed the sloppy practice as effective.)

06/30 11:35 AMShare

“Sotomayor may sue SCOTUS for overturning New Haven ruling”   [Ed Whelan]

Well, only in Scrappleface’s world of parody.

06/30 11:00 AMShare

Re: Sotomayor Vindicated?   [Ed Whelan]

A follow-up to this post of mine, which passed along the contention by Sotomayor supporters that her position and that of Justice Ginsburg and the other dissenters in Ricci were (in my paraphrase) “roughly comparable”:  Stuart Taylor, in “Justices Reject Sotomayor Position 9-0—But Bigger Battles Loom,” explains that the “difference between the Sotomayor position and the Supreme Court dissenters’ position is … important and revealing”:

Both, in my view, would risk converting disparate-impact law into an engine of overt discrimination against high-scoring groups across the country and allow racial politics and racial quotas to masquerade as voluntary compliance with the law.

But while Ginsburg at least required the city to produce some evidence that the test was invalid, the Sotomayor panel required no such evidence at all. Its logic would thus provide irresistible incentives for employers to abandon any and all tests on which disproportionate numbers of protected minorities have low scores.

06/30 07:21 AMShare

Monday, June 29, 2009

Re: Colorblind Constitution   [Ramesh Ponnuru]

Anthony, you write, "But I do think there are good-faith originalist arguments that the EPC commands colorblindness, and I don't take it that your excerpt is meant to be a full-scale rebuttal of any of those originalist arguments, including McConnell's." I certainly had no intention of rebutting McConnell's argument that the EPC commands colorblindness, because I don't believe that McConnell made such an argument to rebut. McConnell was making an originalist argument for the result of Brown v. Board, which is a different (though related) thing.

Since various attempts at plain-meaning interpretations of the equal-protection clause have been made here, let me quote Gerard Bradley on the subject some years ago, offering a plausible one of his own:

It will help to read the text in its fairly straightforward sense. . . .  "All persons," that is, every single human being, are to enjoy the protection of the state's law.  What this means may be breathtakingly simple. Laws against rape, for instance, are for the protection of blacks as well as whites.  More pointedly, laws against murder are for the protection of blacks as well as whites, which means no lynching by citizen mobs.  No one at all is to be permitted by selective or lax enforcement to remain outside of the legal  community in a virtual state of nature. This intention is supplemented by the due process clause which effectively prohibits the converse: no extra legal  enforcement action to the detriment (of life, liberty, property) of any person. Neither of these has to do (except derivatively) with state laws to be reviewed by federal courts.  The ad hoc, extra legal quality of the prohibited acts suggests an extremely limited remedy (e.g., habeas corpus, mandamus, prohibition) role for federal courts.

Bradley notes that if this reading is correct—if it is the plain meaning, historically recovered, of the text—then modern jurisprudence has put the most stress on the clause's least significant word.

06/29 09:24 PMShare

Re: Colorblind Constitution   [Anthony Dick]

06/29 06:44 PMShare

Re: Ricci and Constitutional Avoidance   [Ramesh Ponnuru]

Anthony: Here's what I wrote about McConnell's article a few years ago:

Michael McConnell, recently confirmed to a federal appeals court, has argued that Reconstruction-era Republicans considered segregation in education to be a violation of civil rights and that Brown v. Board of Education is thus defensible on originalist grounds.

But not even the broadest plausible originalist account of the Fourteenth Amendment holds it to forbid all governmental discrimination by race. Nor can the amendment be held to assert an individual right to race-blind treatment in state-university admissions (or federal contracting). A few justices of the Supreme Court have held the Constitution to command colorblindness, but no majority has ever done so.

06/29 05:27 PMShare

The NYT and Me, Again   [Ramesh Ponnuru]

In long stretches of Wendy Long's latest post about me, I have no idea with whom she thinks she’s arguing. I never claimed that the conservatives on the Supreme Court engaged in the same amount of judicial activism as the liberals. Long writes that “nothing in the history of the 14th Amendment undercuts the argument that a white or Latino firefighter is discriminated against when a promotion is denied to him after a non-discriminatory test, on the ground that no blacks could thereby be promoted.” I never denied that Ricci was discriminated against; I questioned whether that discrimination violated the Fourteenth Amendment. Arguing that it did requires more than the ability to use boldface.

06/29 05:21 PMShare

Sotomayor Vindicated?   [Ed Whelan]

I see that various supporters of Judge Sotomayor are contending that she’s vindicated by the fact that the district court’s legal reading that she adopted is roughly comparable to the position of the four dissenters in Ricci.  (Set aside that even the dissenters say that she applied the wrong legal standard.)  But this claim of vindication misunderstands the primary charge against Sotomayor that arises from her handling of the case.  As I wrote a month ago:

My core complaint, and the complaint of Judge José Cabranes (a Clinton appointee), about the perfunctory per curiam opinion that Sotomayor and her panel colleagues is not that the result she reached was necessarily the wrong one.  I believe that I have been agnostic on that question (though I will point out that even President Obama’s Department of Justice has argued to the Supreme Court that Sotomayor did not “adequately consider whether, viewing the evidence in the light most favorable to [the plaintiff firefighters], a genuine issue of fact remained whether [the City’s] claimed purpose to comply with Title VII was a pretext for intentional racial discrimination in violation of Title VII or the Equal Protection Clause.”) 

My complaint is instead that Sotomayor engaged in shenanigans designed to bury the claims of the plaintiff firefighters, shenanigans that Judge Cabranes exposed in his blistering dissent from denial of rehearing en banc.  Simply put, she didn’t give the firefighters a fair shake, and she seemed to be trying to prevent further review of their claims.

The fact that the Supreme Court majority ruled for the firefighters bolsters concerns that Sotomayor didn’t give them a fair shake—and that the ugly flip side of selective empathy towards certain favored litigants is selective antipathy towards disfavored litigants.

06/29 04:58 PMShare

Re: 9-0 Against Sotomayor   [Ed Whelan]

To amplify/clarify my observations:  There is a sharp 5-4 divide among the justices in Ricci, and the legal position taken by the district court and adopted by Judge Sotomayor and her panel colleagues is obviously much closer to the position of Justice Ginsburg and her fellow dissenters than either is to the majority’s.  But even Ginsburg believes that Sotomayor applied the wrong legal standard (one overly favorable to the city):  “The lower courts focused on respondents’ ‘intent’ rather than on whether respondents in fact had good cause to act.”

I’m a bit puzzled whether Ginsburg believes that application of what she views as the proper standard would entitle the city to summary judgment, but I believe the answer is no.  Ginsburg explains in Part III-A of her dissent “why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party.”  (Emphasis added.)  Although it’s not entirely clear to me at this point whether Ginsburg purports merely to be applying the usual standard for summary judgment or whether she is instead acting as ultimate factfinder, her various phrases suggest the latter.  For example, Ginsburg states that “petitioners have not shown that New Haven’s failure to certify the exam results violated Title VII’s disparate-treatment provision.”  (Emphasis added.)  But in opposing the city’s motion for summary judgment, the petitioner firefighters would need only to show (with all inferences from the evidence drawn in their favor) the existence of disputed issues of material fact.

06/29 01:49 PMShare

Ricci and Constitutional Avoidance   [Anthony Dick]

06/29 01:43 PMShare

Limiting Political Speech   [Hans A. von Spakovsky]

The Ricci decision will get everyone’s attention today and deservedly so, but there is another important case still to be decided by the Supreme Court. In a very rare move, the Court did not issue a decision on the last day of its term in Citizens United v. FEC, a case filed by a conservative non-profit contesting restrictions in federal campaign-finance law limiting its distribution of a 90-minute documentary critical of Hillary Clinton when she was a candidate for president. Instead, the Court ordered rearguments on September 9. The Court directed the parties to answer the following question: “For the disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, and a part of McConnell v. FEC, which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002?”

The Austin case is the unfortunate opinion where the Supreme Court upheld Michigan’s prohibition on the use of general treasury funds by corporations (including nonprofits like the chamber of commerce) to make independent political expenditures for state candidate elections. The Court decided that the burden imposed on the exercise of political expression by corporations was not a violation of the First or Fourteenth Amendments. It was supposedly justified by a compelling state interest in preventing corruption or the appearance of corruption in the political arena by reducing the threat that corporate treasuries — including those of corporations that are composed of like-minded individuals seeking to advance an issue — will “unfairly” influence election outcomes.

Section 203 is the electioneering provision upheld in McConnell that was part of the McCain-Feingold amendments in 2002 that prohibits corporations and labor unions from using general treasury funds for a radio, television, cable TV, or satellite broadcast within 30 days of a primary or 60 days of a general election that refers to a clearly identified federal candidate, even if the ad is all about an issue before Congress. 

Hopefully, this means the Supreme Court recognizes that its prior rulings upholding these limits on political speech and expression may have been wrongly decided and should be reconsidered. The electioneering communications provision represents one of the most severe restrictions on free speech since the passage of the Alien and Sedition Acts in 1798. It puts government bureaucrats (and I speak from experience as a former commissioner on the FEC) in the terrible position of making judgments on political and issue advertising to decide what is prohibited and what is not — the Supreme Court should strike down this travesty of a law as a basic violation of the First Amendment.

06/29 01:22 PMShare

Another Important Case    [Anthony Dick]

The U.S. Supreme Court today ordered a new round of oral arguments in Citizens United v. FEC, the “Hillary: The Movie” case.  The Court wants parties to address whether Austin v. Michigan, a case that bans certain political speech by corporations, including nonprofit corporations such as Citizens United, should be overturned.  The Court also wants to consider whether part of McConnell v. FEC, upholding the so-called “electioneering communications” ban in McCain-Feingold, should likewise be overturned and the ban struck down entirely.

“The Court has set up a blockbuster case about Americans’ First Amendment rights to join together and speak freely about politics,” said Steve Simpson, a senior attorney with the Institute for Justice, which filed a friend-of-the-court brief in Citizens United v. FEC.  “A majority of the High Court appears to recognize the grave threat to free speech posed by both the electioneering communications ban in McCain-Feingold and the ban on corporate political speech.  This case could mark a significant advance for First Amendment rights and will have major implications for state laws nationwide.” . . .

 

The Citizens United case came about because the Federal Election Commission banned the airing of “Hillary: The Movie,” produced by the nonprofit Citizens United, on cable TV and required the group to “name names” of the film’s backers by disclosing to the government detailed personal information about donors if the group ran TV ads for the film.  At oral argument, justices appeared concerned that if the government could ban corporate-funded films about candidates, it could also ban books.  Revisiting Austin and McConnell allows the Court to fully consider whether speech regulation has gone too far.

06/29 12:39 PMShare

Not a Single Justice Agreed with Sotomayor    [Wendy Long]

Frank Ricci finally got his day in court, despite the judging of Sonia Sotomayor, which all nine Justices of U.S. Supreme Court have now confirmed was in error.  She essentially committed judicial malpractice. 

That even Justice Ginsberg and the dissenters would have remanded — undoing what Judge Sotomayor did — confirms that Sotomayor is a far-left liberal judicial activist who ignores the law and rules on her own personal agenda, even beyond the current liberals on the Court.

There is nothing moderate, mainstream, or nonideological about that. This demonstrates that the White House spin on this nominee is a pure fabrication.
 
Usually, poor performance in any profession is not rewarded with the highest job offer in the entire profession.
 
What Judge Sotomayor did in Ricci was the equivalent of a pilot error resulting in a bad plane crash. And now the pilot is being offered to fly Air Force One.
 
The firefighters in New Haven who protect the public safety and worked hard for their promotions did not deserve to become victims of racial quotas, and all nine Justices on the Supreme Court have now confirmed that they did not deserve to have their claims buried and thrown out by Judge Sotomayor.

06/29 12:05 PMShare

Justice Alito on Judge Sotomayor’s Failure of Impartiality   [Ed Whelan]

Here’s the close of Justice Alito’s concurring opinion in Ricci (which Justices Scalia and Thomas joined)*:

Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision.

The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.

(Emphasis added.)

* All three justices fully joined Justice Kennedy’s majority opinion.

06/29 11:11 AMShare

Supreme Court vs. Sotomayor   [Ed Whelan]

Judge Sotomayor thought it appropriate to use an unpublished summary order to dispose of the claims of the New Haven firefighters in Ricci v. DeStefano.  Today the Supreme Court issued 93 pages of opinions in the case that Sotomayor acted to bury.

Further, although there is a sharp 5-4 divide among the justices, not a single justice thought that Judge Sotomayor acted correctly in granting summary judgment for the City of New Haven.

06/29 10:52 AMShare

9-0 Against Sotomayor   [Ed Whelan]

In footnote 10 of her dissent, Justice Ginsburg, agreeing with the position that President Obama’s Department of Justice took, states:  “Ordinarily, a remand for fresh consideration [whether the City of New Haven in fact had good cause to act] would be in order.”  But because the majority saw no need to remand, Ginsburg explains “why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party.”  (Emphasis added.)

In other words, Ginsburg doesn’t believe that final disposition of the case is appropriate.  She and her fellow dissenters therefore believe that Sotomayor and her Second Circuit colleagues and the district court were wrong to grant summary judgment to the City of New Haven.

[Update/clarification:  Ginsburg believes that Sotomayor and the other judges below applied the wrong standard:  “The lower courts focused on respondents’ ‘intent’ rather than on whether respondents in fact had good cause to act.”  I haven’t had time to examine whether Ginsburg’s standard is in fact the same that DOJ advocated and have therefore struck through the passage above.  I’ve also corrected a misquotation.]

06/29 10:42 AMShare

Ricci v. DeStefano: Justice Kennedy’s Majority Opinion   [Ed Whelan]

Key passages from Justice Kennedy’s opinion (joined by Chief, Scalia, Thomas, and Alito), which rests entirely on statutory (Title VII) grounds:

Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.

We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination.…

Congress has imposed liability on employers for unintentional discrimination in order to rid the workplace of “practices that are fair in form, but discriminatory in operation.” Griggs, supra, at 431. But it has also prohibited employers from taking adverse employment actions “because of” race. §2000e–2(a)(1). Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination. And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.

We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.…

[T]he record makes clear there is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate-impact liability in violation of Title VII.

06/29 10:31 AMShare

Today’s End-of-Term Rulings   [Ed Whelan]

Beginning around 10 a.m., and again relying on SCOTUSblog’s live blogging, I will pass along in this continually updated post the quick bottom line on today’s three Supreme Court rulings, along with links to the opinions.  I hope to provide a fuller summary of Ricci v. DeStefano, as well as possibly some commentary, very soon in a separate post.

Again, the cases are announced in reverse order of seniority of the author of the majority (or lead) opinion.  (My guess from last week is that (1) Justice Kennedy will announce Cuomo v. Clearing House Ass’n (banking-law question) and that the Chief will announce Citizens United v. FEC (First Amendment/campaign finance) and Ricci v. DeStefano, or (2) Justice Alito will announce Citizens United, Kennedy will announce Cuomo, and the Chief will announce Ricci.)

1. Ricci v. DeStefano, the New Haven firefighters case:  Kennedy majority.  5-4.  Reversal (without remand).  Violation of Title VII.  Sounds like big win for firefighters. 

Ginsburg dissent, joined by Stevens, Souter, and Breyer.

2.  Cuomo v. Clearing House Ass’n(obscure banking-law question): 5-4, odd alignment.  Scalia majority, joined by Stevens, Souter, Ginsburg, and Breyer.

3.  Citizens United v. FEC (First Amendment challenge to the application of campaign-finance laws to a film critical of Hillary Clinton):  No opinion:  To be re-argued next term.

[My predictions were sure off.] 

06/29 10:31 AMShare

Stuart Taylor on Strip-Searching and Empathy   [Ed Whelan]

As usual, Stuart Taylor has keen insights on last Thursday’s ruling in Safford United School District v. Redding, including on the emptiness of President Obama’s “empathy” standard and the unfairness of the Stevens/Ginsburg position in dissent on the issue of qualified immunity: 

Stevens argued, in an opinion joined by Ginsburg, that the assistant principal should be liable to pay damages for his "outrageous conduct." He did not deny that many federal appellate judges had suggested that such searches were lawful. Rather, Stevens (and Ginsburg) declared that "the clarity of a well-established right should not depend on whether jurists have misread our precedents."

Think about that. How would you like to be a school official living under the Stevens-Ginsburg view of the law? You could end up losing a chunk of your life's savings for ordering what several federal appellate judges had previously held to be a legal search. Judges, of course, enjoy absolute immunity; the Supreme Court has made sure of that. But under the law according to Stevens and Ginsburg, it could be open season on any school official who relies on prior judicial rulings that the Supreme Court ends up repudiating.

This has me wondering how a judge attuned to the "empathy" that Obama seeks should approach the many cases pitting real people against other real people. Empathy for Savana argues for requiring the assistant principal to compensate her. Empathy for the assistant principal — "whose motive throughout was to eliminate drugs from his school and protect students," Souter noted — argues the contrary. And most such officials are hardly rolling in money. What's an empathetic judge supposed to do?

06/29 07:24 AMShare

Sunday, June 28, 2009

Saturday, June 27, 2009

Don't King Me   [Anthony Dick]

06/27 11:55 PMShare

Ramesh: Conservative Judicial Activism   [Wendy Long]

06/27 11:10 AMShare

The (Inevitable) Assertion of Executive Power   [Matthew J. Franck]

The Washington Post reports this morning that President Obama's advisers "are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely."

Yesterday The Hill (h/t John McCormack at TWS) reported that the president attached a signing statement worthy of George W. Bush to a war-funding bill—complete with constitutional objections to some of the legislation's provisions.

The world sure looks different after you take that oath of office, doesn't it?  How easily campaign declarations of outrage are forgotten!  I bet there's not a president since Truman who hasn't learned to loathe the Supreme Court's decision in the Steel Seizure Case.

06/27 07:43 AMShare

Friday, June 26, 2009

Re: New! Improved!   [Matthew J. Franck]

Is it time for someone to invoke the "good heavens, we're only blogging" defense?  In this medium, when discussing complex questions, one is often either (a) brief at the risk of appearing perfunctory, (b) brief with pedantic footnotes, or (c) going on too long while writing impromptu.  There are dangers in all three.  It seems I have been (a).  But I will make a few quick remarks responding to Anthony Dick's latest, and let him have the last word if he wishes.

1.  I did not say or imply that "all indeterminacies of meaning are fake," nor had I detected Dr. Pangloss in the looking glass.  I only denied Dick's earlier remark that "every single provision of the Constitution is hazy" to some degree.  There surely are provisions of the Constitution that are "indeterminate," if that fashionable word must be used.  (Why not "vague"? or "requiring interpretation"?)  Somewhere back a few posts I think we were both talking about finding the original meaning of the Constitution—the many easy provisions and the few hard ones.  I'm less sure we're both doing that now, for reasons that will appear below in point 5.

2.  To Mr. Dick's hypothetical defendant with an "affirmative defense" putatively resting on the Second Amendment, I should have thought my answer was predictable: you lose.  This is not because of "some extra-constitutional maxim" I have about the proper role of the judiciary.  It is the conclusion of a course of reasoning about what the Constitution says and was understood to mean by those who made it.  I haven't any a priori theory at all about how much judicial power is desirable under the Constitution.  I'm interested in the historical evidence—much of it extrinsic to the text, to be sure—that sheds light on what is intrinsic to the text's independent meaning.  I could be wrong about the evidence, and if I find that I am, I won't cling to any "independent view that [I have] about the proper role of the judiciary," because I don't have one.

3.  Dick has misunderstood my point about Blackstone.  I did not and would not cite him as a "classical repository of extra-constitutional legal principles that are useful for filling in the gaps" in the Constitution.  I cited him as a good starting point for understanding the methods of legal reasoning and the interpretation of texts that prevailed at the founding.  Big difference.

4.  What Dick has yet to provide is any account of judicial power that would have it enforce, as I said previously, "every jot and tittle" of the Constitution.  I haven't provided a full account of my more limited view of judicial power, so I guess we're even on that score.  If Dick is not, after all, an "every jot" man, then I would ask him where he would draw the line between the jots that judges enforce and those they don't.  I've published some work on this, taking my cue from John Marshall, but won't lengthen this post with more on the point (dang, that was almost a pedantic footnote).  If Dick is an "every jot" man, then I'd like to know why, on originalist grounds that don't depend on rhetorical flights about "classical liberalism."

5.  (Wasn't this going to be brief?)  About that "classical liberalism": Dick's ready reference to "extra-constitutional legal principles" and to "the political principles of the founders" reminds me of my friend Hadley Arkes's "Beyond the Constitution" thesis.  That's good company to be in, but they're both wrong, I think.  Since I don't think "every jot and tittle" of the Constitution is authoritatively enforceable by judges, I have trouble seeing how you get outside the Constitution to the enforcement of jots and tittles not in it but actually "extra-constitutional"—and somehow enforceable anyway because they were really, really important to the founders.  Where the judicial power is concerned, this is no longer originalism properly understood—not about the text, anyway.  It is instead a venture into the justice of the philosopher-kings.

06/26 07:41 PMShare

Re: New! Improved! Stronger Judiciary!    [Anthony Dick]

I agree entirely with Professor Franck’s observation that “Our law schools are thickly populated with folks who want first to produce ‘indeterminacy’ in order to supply ‘determinacy’ afterward via judges who are pliant and/or ambitious.” Epistemological pessimism can certainly be taken too far in constitutional interpretation, and it can be abused by those eager to discard both the original meaning of the Constitution and the original principles that undergirded the document at the time of its ratification.

But this does not mean that all indeterminacies of meaning are fake, nor does it justify Professor Franck’s Panglossian attitude toward the very difficult question of what to do in the face of real uncertainty. In my last post I identified a very few of the many constitutional indeterminacies that judges cannot ignore because they involve provisions of the Constitution that play a decisive role in many live cases that come before the courts. For example: What is a judge to do when confronted with a defendant who faces a federal penalty for possessing a firearm of some sort in his own home for self-defense, and who asserts his Second Amendment right to bear arms as an affirmative defense? 

Franck dodges the question of what the Second Amendment means in a borderline case like this. He asserts that judges should defer to the legislature on the constitutional question. This is a perfectly reasonable and defensible position. But it is not defensible to maintain that this preference for deference is definitively mandated by the Constitution. It comes instead from some independent view that Franck has about the proper role of the judiciary. By proposing that judges defer in this way, Franck is injecting some extra-constitutional maxim into the judicial decisionmaking process. I do not blame him for this, since some amount of external influence is unavoidable, insofar as no document can itself provide the definitive guideline for how its readers should interpret it.

Myself, I think that fidelity to the Constitution requires an understanding of the broad principles of classical liberalism that gave rise to the particular provisions of the document. I don’t think you can understand a legal text unless you understand the principles and the purpose behind it. Thus, in cases of indeterminacy of meaning, I think it is not only fair but necessary to ask judges to decide conflicts between government power and individual liberty in a way that would have conformed to the political principles of the founders. Whether or not he realizes it, Franck has already come half-way toward agreeing with me when he suggests that judges should look to Blackstone for guidance. Blackstone, after all, is a classical repository of extra-constitutional legal principles that are useful for filling in the gaps that the Constitution leaves for us.

06/26 05:47 PMShare

Re: New and Improved   [Ramesh Ponnuru]

I'd approach the question a little differently than Matt, and say that to the extent a constitutional command is vague there is all the less reason for the Supreme Court to insist that its reading of it must take precedence over any other.

06/26 05:28 PMShare

New! Improved! Stronger Judiciary!   [Matthew J. Franck]

To Anthony Dick, I will reply only half-facetiously that a very great many supposed conundrums in constitutional law "are simpler than they actually are," and that the search for a "robust theory" of constitutional interpretation, with near-magical regularity, produces results the theorist would like.  Our law schools are thickly populated with folks who want first to produce "indeterminacy" in order to supply "determinacy" afterward via judges who are pliant and/or ambitious.  It is very nearly the furthest thing from the truth that "every single provision of the Constitution is hazy, at least around the edges."  For interpretive method?  Read Blackstone, the repository of received wisdom on legal reasoning for the founding generation.  It won't tell you what "theory" the Constitution is built on, but it will tell you how the legal minds were furnished that did the building.

Mr. Dick asked about particular provisions.  As for the Fourth Amendment, I would begin by clearing away the exclusionary rule and the "incorporation" that applies it to the states.  Right away the scale of the interpretive problem is reduced by about 95%.  Then can we talk?  I think we'd find that Congress legitimately has as large a role in "enforcing" the Fourth Amendment (a restriction on the executive, after all) as the judiciary has.

As for the Second Amendment, these are interesting questions all.  But I would refer those to legislatures too, because I think, as I have said here before, that D.C. v. Heller was a serious error.  In fact, if "small catastrophe" is a useful concept, the Heller case qualifies, in my book.  It promises an endless vista of government by judiciary.  If it is "ill-timed" to say so on the eve of the Sotomayor hearings, so be it.  But I doubt the Obama administration and the Senate Democrats will find my utility goes very far.

06/26 04:46 PMShare

Re: The Political Corruption of the Congressional Research Service?   [Ed Whelan]

A follow-up to my post yesterday:  I’ve learned from Tony Mauro that CRS did some reports on then-Judge Alito’s cases in connection with his Supreme Court nomination.  A quick Google search discloses at least three such reports—one on Alito’s abortion opinions, one on his “freedom of speech” opinions, and one on his environmental opinions.  I don’t have time to review these reports to discern how “objective and nonpartisan” they are, though I do see that the summary of his environmental opinions, far from being merely descriptive, includes this assessment:

“a small number of his opinions arguably suggest endorsement of larger jurisprudential principles that may present hurdles to environmental plaintiffs (through narrow interpretation of a constitutional standing requirement), government enforcement (through stringent evidentiary requirements), and congressional legislating (through a narrow reading of the Commerce Clause).”

According to Mauro, a CRS spokeswoman says that “CRS ‘has a long history of supporting the Senate’s advice and consent role’ in judicial nominations with such research.”  Whether that means that reports like those done on Sotomayor and Alito were done previously is unclear.  (According to Wikipedia, “there is no accurate public list or catalog of CRS publications.”)

06/26 01:40 PMShare

The NYT and Me   [Ramesh Ponnuru]

I am happy to reciprocate Wendy Long’s admiration, but I cannot extend that admiration to her post. I just see assertion piled on top of assertion, often off-point. Thus, for example, she disputes the idea that the Constitution mandates color-conscious policies — an idea that I have never raised. She says that “of course” the Constitution mandates color-blindness. That would be news to Andrew Kull, author of the The Color-Blind Constitution, which concludes that the idea to which his title refers “died in the Joint Committee of the Thirty-Ninth Congress.” To Long I “sound like” I am questioning Marbury v. Madison. All I can say is that she needs to listen harder. The idea that conservatives can never fairly be accused of judicial activism, by definition, is eccentric.

Finally, the bit about how I am clouding the issues involved in the Sotomayor nomination and aiding the White House spin machine is repulsive. If my arguments are wrong, then that’s enough of an indictment. If they’re right, their inconvenience is irrelevant. (I have no desire to go to work for the RNC.) If they are right, in fact, then it is the indulgence of conservative judicial activism by the likes of Long that makes it harder for us to make the case against the liberal variant.

06/26 01:00 PMShare

Re: Re: Time for a Stronger Judiciary?   [Anthony Dick]

06/26 01:00 PMShare

Re: Time for a Stronger Judiciary?   [Matthew J. Franck]

Anthony Dick's post raises some interesting questions.  But I don't get very far asking or answering how "assertive" the judiciary should be.  All the interesting questions are about constitutional meaning, since getting it right means never having to say you're sorry.  I would distill the whole business into two questions:

1. Is a particular constitutional issue within the proper ambit of the judicial power?  This is itself a question about constitutional meaning—of the Article III power (as modified if at all by subsequent amendments).  If the answer to this is no, do not proceed to question 2.

2. If the answer to question 1 is yes, has the arm of government whose action is challenged violated the Constitution?

Ramesh's article, I think, addressed both questions: the first in the Voting Rights Act case, and the second in the Ricci case.

If the answer to both questions is yes, then I wouldn't care a fig about how "strong" the judiciary appears.  If either one is answered no, why worry about how "weak" it appears?  The only thing is getting the job done right, and it is never out of season to do that.  Does it help to have a "comprehensive vision of substantive constitutional meaning that can be applied robustly and aggressively in accordance with the classical liberal principles of the American founding"?  Maybe.  But first I'd want to know what that means.

06/26 12:01 PMShare

Time for a Stronger Judiciary?   [Anthony Dick]

Today marks the anniversary of D.C. v. Heller, last year’s Supreme Court decision that struck down the most restrictive handgun ban in the country. The ruling gave conservatives a reason to celebrate, but it also highlighted a mounting tension in conservative legal thought.
 
Conservatives have for the last several decades advocated a strong version of judicial restraint, motivated in large part by their (entirely justifiable) backlash against Roe v. Wade.  They have argued that judges should exercise humility and defer to elected legislators, who are not only more accountable to the people but also better suited to tailor policy solutions to particular problems. But Heller has joined a growing field of cases causing some conservatives to rethink the wisdom of this approach. 
 
Spurred by issues related to racial discrimination (Ricci v. DeStefano), campaign-finance reform (Citizens United v. FEC), gun rights (D.C. v. Heller), eminent domain (Kelo v. New London), the fairness doctrine, and recent lawless takeovers of some of the nation’s largest corporations and financial institutions, segments of the Right are acquiring a new appreciation for the role an assertive judiciary might have in safeguarding individual rights and enforcing constitutional limits on government power.  If anything, this trend on the Right seems poised to accelerate at a time when the judiciary leans more conservative than it has in decades, and Congress and the presidency are united in pursuing the most radical expansion of domestic federal authority since the New Deal.
 
For conservatives and libertarians advocating a strong judicial push-back against the accelerating abuses of government, the question is whether this can be done in a way that is faithful to the original meaning of the Constitution and that does not open the door to judicial policymaking, with the attendant abuses of Roe and other cases that create unfounded new rights and impose judicial will in the place of constitutional law.  (One way to avoid the follies of Roe is for courts to restrain themselves from enforcing rights; another way is to start enforcing the right type of rights.)
 
The key is to develop a comprehensive vision of substantive constitutional meaning that can be applied robustly and aggressively in accordance with the classical liberal principles of the American founding, to the extent they can be fairly found(either implicitly or explicitly) in the Constitution.  If this can be accomplished, an assertive judiciary might be not only justifiable but deeply desirable, as long as it operates on the properly constitutional conception of rights, liberties, and limited government.  And of course, the judiciary does not have to bear the entire burden of this endeavor, as conservatives should press the point that Congress has its own independent duty of constitutional fidelity, even on issues where judicial review is not appropriate.
           
I think we can look forward to much more spirited intra-conservative controversy on this topic in the next few years, as nicely foreshadowed this week by Ramesh's excellent New York Times article and the fallout therefrom. 

06/26 11:16 AMShare

Law Professors for [Fill in the Obama Nominee]   [Ed Whelan]

I’m amused to see that what a soliciting e-mail describes as “a letter of support from law professors nationwide” states that Judge Sotomayor’s “rulings exhibit unfailing adherence to the rule of law,” “reflect careful attention to the facts of each case and a reading of the law that demonstrates fidelity to the text of statutes and the Constitution,” and so on.  I wonder how many of the law professors who eagerly sign their names to the letter will actually have done the due diligence necessary to form a responsible opinion on the matters to which they so lavishly attest.

06/26 09:53 AMShare

CRS on Sotomayor and Imprisoned Felons   [Wendy Long]

06/26 09:31 AMShare

Ramesh and the NYT   [Wendy Long]

I'm a little late to the table in the Ramesh-fest, but . . .

I second Abby Thernstrom's admiration for Ramesh and admit that is precisely why I was mystified that he would willingly jump into the whirlpool of White House Spin on the eve of the Ricci decision and the run-up to the Sotomayor hearings.  Honestly, when I read his column yesterday, I thought he must have been taken hostage by some NYT editorial page terrorists who waterboarded him until he agreed to sign that op-ed piece.

Of course the principle in the Constitution — both the 14th and 15th Amendments, not to mention the Declaration of Independence — is one of color-blindness, as the first Justice Harlan noted in Plessy.

There is nothing in the original meaning of the text that mandates race-conscious (i.e., racially discriminatory) policies, except perhaps in the limited context of remedying obvious race discrimination.

The authors and ratifiers of the 15th Amendment gave Congress the power to "enforce" it by "appropriate legislation," but not power beyond that, so that is the whole point about judicial review of the Voting Rights Act.  If legislation to "enforce" the 15th Amendment is not (or is no longer) appropriate, then it is a proper exercise of judicial review to strike it down.  Upholding the Constitution (its text, principles, and/or history) is never judicial activism.  That is both consistent with originalism and judicial restraint.

Judicial restraint is not "best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments."  That is a different canon, the canon of avoidance of unecessary constitutional questions.  If a constitutional question is legitimately raised, it is not any kind of "virtue," least of all "judicial restraint," to fail to decide it.  Judicial activism is when judges use extra-legal arguments, authorities, personal preferences, or experiences to decide cases, instead of the law.  

To the extent Ramesh says it is "not clear that the Constitution authorizes judges to second-guess" either the Voting Rights Act or other legislation, he sounds like he is questioning the premise of Marbury, which is not only the power of judicial review, but also the corresponding responsibility of judicial restraint.  These are two sides on one coin, inseparable if the judicial branch is to uphold the Constitution properly (as, of course, all the departments and not just the judiciary must do).  As the song goes, "You can't have one without the other."

Attacking Justice Thomas on this score as a judicial activist is just incomprehensible, particularly coming from Ramesh.

And with respect to Ramesh's assertion that the "conservative" position on the merits of the Ricci case (not only that he "probably deserved his promotion and had a right to his day in court" but also that on the merits he "should win the case") is another example of judicial activism and/or abandonment of originalism is equally incomprehensible.  If you accept the originalist position that the Constitution is indeed color-blind (and you should), then Title VII disparate-impact imperatives that would compel facial race discrimination don't cut it, in an originalist sense.

Perhaps most important, Ramesh's entire premise, that Justice Thomas and conservatives are deciding cases and making legal arguments based upon the Obama empathy standard, is just so wrong and so misleading at the precise moment when we need to seize the moment to crystallize this debate between the Obama-Sotomayor view of judging and the Thomas-judicial restraint mode of judging.  The White House is trying to fog up that debate, to blur the distinctions and confuse the citizens with double-talk so they can't decide for themselves which mode of judging they prefer.  To feed the fog machine is doing a disservice to those people.

06/26 09:24 AMShare

Thursday, June 25, 2009

Not Quite Right, Indeed   [Ramesh Ponnuru]

I didn't say that no justice thinks the Voting Rights Act raises Fifteenth Amendment problems. I said that no justice seems to think that the text of the amendment makes the case a slam dunk.

06/25 06:54 PMShare

The Political Corruption of the Congressional Research Service?   [Ed Whelan]

The Congressional Research Service, or CRS, describes its mission as providing Congress “objective, non-partisan assessments of legislative options for addressing the public policy problems facing the nation.”  It identifies among its “core values” being “objective and nonpartisan” and claims that its “experts are vigilant in evaluating issues without bias.”  Yet just last week CRS issued a report titled “Judge Sonia Sotomayor:  Analysis of Selected Opinions,” the summary of which includes such “objective and nonpartisan” assessments as:

Perhaps the most consistent characteristic of Judge Sotomayor’s approach as an appellate judge has been an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents. Other characteristics appear to include what many would describe as a careful application of particular facts at issue in a case and a dislike for situations in which the court might be seen as oversteping [sic] its judicial role.

Just wondering:  Has CRS ever before prepared an assessment of the record of a Supreme Court nominee?  [Update:  The answer turns out to be yes.]  Why is it doing so now?

06/25 05:40 PMShare

Koh Confirmed   [Ed Whelan]

By a vote of 62 to 35, the Senate has just confirmed the nomination of Harold Koh to be State Department legal adviser.

I very much hope that I turn out to be wrong about how much damage Koh will be able to inflict.

Update:  I’m reliably informed that five Republicans voted for Koh:  Collins, Lugar, Martinez, Snowe, and Voinovich.  (The roll-call vote should be available here shortly.)

[Cross-posted on The Corner]

06/25 04:43 PMShare

Re: The Right, Race, and Originalism, Round Two    [Anthony Dick]

In response to Ramesh, it’s not quite right to say that no Supreme Court justice reads the Fifteenth Amendment as causing problems for the Voting Rights Act. All nine justices in this week’s NAMUDNO opinion noted that the Voting Rights Act raises serious constitutional concerns in light of its sweeping intrusion on the state supervision of election processes, with no clear link to preventing racial discrimination in voting. As Tom Goldstein explains, “The decision unambiguously served notice that the Justices are prepared to invalidate the statute as it stands.” But in this particular case, the Court decided to take the route of constitutional avoidance, interpreting the Act to allow the plaintiff district to seek to bail out of the federal voting requirements imposed by the Act, thereby granting the prospect of relief to the district while dodging the larger question of the Act’s constitutionality. This course of action will give Congress time to amend the Act rather than relying on the Court to strike it down. But it doesn’t change the fact that one can argue quite plausibly that the plain meaning of the Fifteenth Amendment creates a strong presumption that the Voting Rights Act is unconstitutional, even before any historical inquiry gets started. I don’t think this is an inconsistent position for originalists to take, as long as they are open to historical evidence that might contradict plain meaning.

06/25 04:32 PMShare

Moderation in the Pursuit of Justices?   [Matthew J. Franck]

John O. McGinnis and Michael B. Rappaport have an interesting argument in their NRO article today defending filibusters of Supreme Court nominations.  A few observations occur to me. 

First, what McGinnis and Rappaport defend is not actually the filibuster but the promiscuous threat of it so as to necessitate the 60-vote cloture margin to move forward with a judicial confirmation.  Were there to be real filibusters—marathon gabfests around the clock—I think I'd actually like this idea.  Then we might discover whether senators have anything to say worth hearing about the Constitution.  (My own preference would be to return to the pre-1917 rules in the Senate, when no such thing as cloture existed.  We'd have far fewer filibusters, real or threatened, but by jingo they'd be a treat!)

Second, I think McGinnis and Rappaport rest their case on a few too many assumptions about the rosy results of promiscuous filibuster threats.  But I'll let readers tote them up for themselves.

Third, I can't imagine why anyone would be interested in appointing "moderate" justices to the Supreme Court, or why we should care whether we get justices whose views are close to that of the "median voter" on anything under the sun.  To adapt the famous line Harry Jaffa penned for Barry Goldwater, moderation in the pursuit of justices is no virtue.

06/25 04:04 PMShare

There’s Reason to Cheer Horne v. Flores Today    [Roger Clegg]

Here’s the Center for Equal Opportunity’s press release: 

The Center for Equal Opportunity praised the Supreme Court's decision today in Horne v. Flores.  In it, the Court ruled 5-4 that the lower courts applied an incorrect legal standard in forcing the state of Arizona to continue funding an expensive bilingual education program.

CEO president and general counsel Roger Clegg noted that Justice Alito's majority opinion cited an amicus brief filed by CEO:  "Research on [English-Language Learner] instruction indicates there is documented, academic support for the view that [structured English immersion] is significantly more effective than bilingual education."

CEO chairman Linda Chavez, one of the nation's foremost experts on — and critics of — bilingual education, said:  "Voters in California, Arizona, and Massachusetts have recognized the failure of bilingual education in performing the number-one job of our public schools, which is to teach children English so they can succeed in 21st century America.  It is gratifying that the Supreme Court today recognizes this as well."

06/25 03:48 PMShare

Reading the Tea Leaves on Next Monday’s Rulings   [Ed Whelan]

Three cases remain to be decided on Monday:  Ricci v. DeStefano, the New Haven firefighters case; Citizens United v. FEC, a First Amendment challenge to the application of campaign-finance laws to a film critical of Hillary Clinton; and Cuomo v. Clearing House Ass’n, which presents a seemingly obscure banking-law question.

Justice Kennedy is the only justice who hasn’t yet issued a majority opinion from the April calendar.  Both Ricci and Cuomo are from April.  My guess is that Kennedy will write in Cuomo and that Chief Justice Roberts assigned himself the opinion in Ricci.

Citizens United is the only remaining case from the March calendar.  Only six cases were argued that month, so guesswork is a little more difficult.  Justices who haven’t yet issued majority opinions for March are the Chief, Scalia, Ginsburg, and Alito.  My bet is that the Chief (who I’m assuming was in the majority at conference) assigned Citizens United either to himself or to Alito.  (Scalia leads the justices with ten majority opinions for the term, and he was assigned two in February.  Ginsburg, like Alito, has only seven majority opinions, but I’m guessing that she and the Chief were not on the same page at conference.)  

06/25 01:38 PMShare

Safford United School District v. Redding   [Ed Whelan]

My immediate summary account of this Fourth Amendment case obscured the nature of the divide among the justices, so here’s a clearer summary of the ruling:

Justice Souter’s majority opinion (joined in full by the Chief Justice and Justices Scalia, Kennedy, Breyer, and Alito) held that (1) the search of a student’s underwear for drugs violated the Fourth Amendment, but that (2) the school officials who conducted the search were entitled to qualified immunity because the relevant contours of the Fourth Amendment right had not been clearly established.  (It left unaddressed the liability of the school district.)

Justices Stevens and Ginsburg dissented on the second point.  Justice Thomas dissented on the first point—i.e., he concluded that the search did not violate the Fourth Amendment.

In sum, the vote was 8-1 that the search violated the Fourth Amendment and 7-2 that the school officials were entitled to qualified immunity

06/25 11:48 AMShare

Which Branch Should Be Strongest?   [Anthony Dick]

I’m glad to hear Ramesh agree that originalists who assert the unconstitutionality of the Voting Rights Act aren’t necessarily guilty of any deep inconsistency, since he’s unsure exactly what the original meaning of the 15th Amendment is. I agree, too, that further originalist analysis on this point would be welcome. I would note, however, that the best evidence of the Constitution’s original meaning is the plain language of the text. And the plain language of the 15th Amendment, which merely empowers Congress to enforce a ban on racial discrimination in voting, requires a severe amount of stretching to accommodate the sweeping federal imposition that is Section 5 of the Voting Rights Act.

As for the relative strength of the legislative and the judicial branches, the Constitution is not explicit on this point, and the historical evidence is mixed. It’s clear that different founding fathers had views that diverged pretty significantly. (See, e.g., Hamilton vs. Madison, Marshall vs. Jefferson.) It’s true that the Supreme Court did not push back against congressional enactments in the early Republic nearly as often as it has come to do in later years, but this may be because Congress before the Civil War and the rise of the Progressive movement was more respectful of its constitutional limitations. All of this is to suggest that the Constitution and its history do not provide such a clear picture of exactly what the proper level of judicial review should be in our federal system. The sad fact is that constitutional meaning is not always clear in every place we need it to be in order to apply it in practice. So what do we do then? How much do judges defer to the legislature? Because good-faith readers of the document can differ on this question, people’s views on it inevitably are (and perhaps should be) influenced by a host of practical considerations that are largely divorced from originalist analysis.

06/25 11:12 AMShare

Today’s Rulings   [Ed Whelan]

Relying once again on the live blogging at SCOTUSblog, I am passing along quick word on today’s Supreme Court rulings:

1. Horne v. Flores; 5-4; Alito majority (reversing ruling on injunction against Arizona for failing to provide sufficient funding for non-English speaking school children); Breyer reading his dissent.

2. Atlantic Sounding Co.  v. Townsend (affirming award of punitive damages for seaman); 5-4, with unusual alignment; majority opinion by Thomas; dissent by Alito (joined by Chief, Scalia, and Kennedy).

[Because the opinions are announced in reverse order of seniority of the authoring judge, it is clear that there will be no majority opinions today from Justices Ginsburg or Breyer.]

3. Safford United School District #1 v. Redding (Fourth Amendment/strip search); apparently 6-3, with majority opinion by Souter; partial dissents by Stevens, Ginsburg, and Thomas (another unusual alignment).

4. Melendez-Diaz v. Massachusetts (confrontation clause):  Another unusual alignment.  5-4, with Scalia majority opinion, and Kennedy dissent, joined by Roberts, Breyer, and Alito.

That’s it for the day.  Next (and almost surely all three remaining) The three remaining rulings (including in the much-watched Ricci case) will be issued on Monday.

06/25 10:22 AMShare

Wednesday, June 24, 2009

Judicial Review and All That Jazz   [Matthew J. Franck]

Just a point of clarification in the ongoing Ramesh-fest: I do not, as Anthony Dick suggests, profess a belief "that the Constitution does not authorize judicial review of congressional enactments."  I merely profess a belief that the Constitution does not make the judiciary the guardian of all its metes and bounds.  Some of them, but not others.  Inasmuch as the Constitution never exactly mentions what we now call "judicial review" (but which no one called that until the twentieth century), we must reason by inference from certain things the Constitution does say.  What it does not say, and what is very difficult to derive by any such inferences, is that any and every congressional enactment that might be plausibly regarded as unconstitutional is subject to being authoritatively invalidated by judges.  I don't really think you can get there from the Federalist, either.

We are agreed on what "modern practice" has done to the Constitution.

06/24 11:00 PMShare

Text Message for Ramesh   [Roger Clegg]

Ramesh, the first thing an “originalist” looks at is text. It’s fine to cite to “historical evidence” if that’s needed to determine the text’s meaning, but not necessary when that text is clear — as it is in these cases and as I explained in my post.

06/24 04:44 PMShare

The Importance of Judicial Review   [Anthony Dick]

It is entirely reasonable to believe that the Constitution does not authorize judicial review of congressional enactments, as Matthew Franck professes. I think the originalist evidence on this is actually mixed, notwithstanding that modern practice and opinion have come down definitively on the side of judicial review, to the point that this is almost a purely academic question today.
 
The perverse effect of disparaging judicial review, of course, is to endorse a Congress whose power is limited only by its own underdeveloped capacity for self-restraint, to paraphrase Justice O’Connor. As noted in the Federalist Papers, one of the key accomplishments of the founding was to establish “the bulwark of a limited Constitution against legislative encroachments.” And it’s hard to trust that the legislature can be a bulwark against itself. One could argue that legislative abuses are best prevented through popular pressure and democratic accountability, but problems of impulse, public choice, rational voter apathy, and tyranny of the majority pose something of an obstacle to that view, as the reality of our government daily demonstrates.  
 
The trick, of course, is getting a judiciary that will apply constitutional limits correctly, which you may discard as a delusional hope.
 
But even if you don’t think the Supreme Court should have the power to strike down a law just by declaring it invalid, that is no reason for the Court to refrain from giving its most honest and persuasive interpretation of the Constitution when it applies to a live case or controversy that comes before the bench.  If Congress wants to ignore the Court, it can always do so, and deal with the political fallout.

06/24 04:38 PMShare

Re: The Excellent Ramesh    [Matthew J. Franck]

I'm sure Ramesh can take care of himself, but I will weigh in long enough to say that unlike Roger Clegg, I found his New York Times op-ed this morning to be the very opposite of "ill-timed and ill-argued."  Roger and Ramesh are actually in agreement about the illegality of affirmative action under the Civil Rights Act of 1964, as Jonah remembered Ramesh pointing out in NR several years ago.  Perhaps it is regrettable that he didn't have the space to point that out in the Times today.  But on the constitutional question, Ramesh is right to raise doubts about whether, on an originalist reading, the Fourteenth Amendment "mandated a policy of strict colorblindness by state and local governments."  And Roger doesn't really argue that it does mandate that, other than to ask "where in the Constitution’s text it says that white people have different constitutional rights than black people."  But the whole historical question is, just what sort of rights are we talking about when we say people are entitled to the "equal protection of the laws"?

On The Corner, Anthony Dick joins Roger in responding to Ramesh's argument about congressional power under Section 2 of the Fifteenth Amendment.  What these two critics of Ramesh have in common is their certainty that the adjective "appropriate" in that section ("The Congress shall have power to enforce this article by appropriate legislation") gives a final authority to the Supreme Court to gainsay the legislation Congress sees fit to enact under the authority given there.  Like Ramesh, I have a lot of doubt that such a judicial power to override congressional judgment was contemplated by the framers of the Fifteenth Amendment.

Anthony reminds us that "[i]f the Constitution does not authorize the federal government to take a certain type of action, the federal government has no power to do so."  This is absolutely true.  But it does not necessarily follow from "the federal government has no power to do X" that "the judiciary has the power to declare X unconstitutional."  For it is no less true of the judiciary than of any other branch that it has only that authority that the Constitution gives it.  And it is not at all plain, from the text of the Constitution, the history of its framing, or the general understanding of judicial power at the time of its adoption, that it gave or was intended to give the federal judiciary the authority to "enforce" every jot and tittle of itself.  Indeed, for a significant part of our history, there was a distinct pattern in the Supreme Court's jurisprudence of its denying that any such general enforcement authority was given to it by the Constitution.

A lot of originalists—present company excepted, of course—take far too little interest in rediscovering the original understanding of judicial authority.  It was good of Ramesh to remind us to think about that.

06/24 02:20 PMShare

The Excellent Ramesh Nods (Big Time)   [Roger Clegg]

Alas, our own Ramesh Ponnuru — in an ill-timed, ill-argued op-ed today in The New York Times, of all places — argues that conservatives urged judicial activism in the Northwest Austin and New Haven firefighter cases before the Supreme Court this term. In the former, conservatives urged the Court to strike down as unconstitutional Section 5 of the Voting Rights Act; in the latter, conservatives urged the Court to rule that the constitutional and statutory rights of 20 nonblack firefighters were violated when, because of their skin color, they were denied promotions they had earned by their test scores.

Judicial activism is a court’s substitution of its own policy preferences for what the text of the Constitution (or other law) actually says. The classic instance involves making up a limitation on a legislature that does not actually exist in the Constitution, but it also includes ignoring a limitation that actually does exist in the Constitution.

The problem with Section 5 of the Voting Rights Act is that it prohibits many state actions that are not unconstitutional (since it employs an “effects” test, and the Fifteenth Amendment prohibits only disparate treatment — actions taken “on account of race”). Indeed, its principal use these days is to require states to engage in disparate treatment, namely the racial segregation of voting districts by racial gerrymandering. In addition, Section 5 supplants state authority in matters committed by the Constitution to them and substitutes federal judicial and bureaucratic supervision instead (this could be justified if necessary to stop states from violating the Constitution, but as just noted Section 5 goes way beyond that). Finally, Section 5 applies to some states and not others, without any existing factual basis for doing so, which is likewise inconsistent with the Constitution’s federalist structure.

So, in reauthorizing Section 5 in 2006, Congress exceeded its constitutional authority. Striking it down would honor the Constitution’s text, and would not be judicial activism; upholding it would mean ignoring constitutional text, and would be judicial activism.

Ramesh suggests that the Court cannot legitimately conclude that Section 5 might once have been constitutional but, because of changes in the facts, isn’t any longer, because such fact-finding is up to Congress. But courts determine facts all the time, and changes in factual circumstances may mean that what once met an — unchanging — constitutional standard no longer does.

Thus, if a policeman asks a judge for a search warrant and produces no evidence, he won’t get it; if he produces good evidence, then he will get it. That’s not judicial activism. Likewise, as the evidence of severe discrimination peculiar to the South diminishes, so will the defensibility of Section 5 before the courts. That’s not judicial activism either.

The text of the Fifteenth Amendment says that legislation passed by Congress to enforce it is to be “appropriate.” There is nothing in the text to suggest that Congress intended to insulate such legislation from judicial review.

The New Haven case involves both constitutional and statutory claims; Ramesh ignores the latter. If judicial activism had not ignored the plain text of the Civil Rights Act of 1964, “reverse discrimination” in employment and university admissions, among other places, would long ago have ended (with no need to decide on their constitutionality, by the way).

The text of Title VII is all about telling employers that they must ignore race and ethnicity in their treatment of employees. The statute also says repeatedly that testing is fine and that nothing in it requires racial or ethnic balancing. And, of course, it applies to all forms of discrimination, politically correct and otherwise.  Ignoring this text because a judge doesn’t like it is judicial activism.

The counterargument seizes on one subsection of Title VII, which makes it possible for employers to be sued if they use a selection device that has a significant “disparate impact” on the basis of race or ethnicity, unless that device is “job related for the position in question and consistent with business necessity.” But it is intellectually dishonest to seize upon a relatively small part of Title VII and read it in a way that swallows the antidiscrimination focus of the overwhelming bulk of the statutory scheme. 

Such a reading not only undermines Title VII, but also the Constitution, which forbids government employers from denying “the equal protection of the laws.” There is nothing in the Constitution’s text that suggests an exception when the discrimination is of a politically correct variety. Do you think that the Constitution would have permitted the city to throw out the test results if it didn’t want to promote African Americans, Ramesh? If not, then you have to show me where in the Constitution’s text it says that white people have different constitutional rights than black people. I doubt you’ll find such a provision; to the contrary, what the Constitution guarantees is, again, precisely “the equal protection of the laws.”

There are some instances where conservatives have urged judicial activism, Ramesh, but not in these two cases. In my view, it is our opponents in them who urge activism; in any event, the results that conservatives urge are consistent with a proper judicial role.

06/24 11:45 AMShare

Ramesh in the Times   [Matthew J. Franck]

gives us all a timely admonition to beware the temptations of judicial power.  Very well said.

06/24 06:43 AMShare

Los Angeles Event Today   [Robert Alt]

For those in the Los Angeles area, Horace Cooper and I will be speaking for the Federalist Society’s Los Angeles Lawyers Chapter today (Wednesday) on the topic of “Misuse of Bankruptcy Courts? Legal and Policy Issues in the GM/Chrysler Bankruptcies and the Anna Nicole Smith Bankruptcy Case.”  The event is at noon at the Omni Hotel, where lunch is included for $20, or $15 for public employees, students, or law clerks.  To rsvp, click here.

06/24 02:27 AMShare

Tuesday, June 23, 2009

Next Rulings from Supreme Court   [Ed Whelan]

The Supreme Court’s next session in which it will announce rulings is apparently set for this Thursday (at 10 a.m.).  The Court has seven more rulings to issue, and I’d be surprised if it manages to issue all seven on Thursday.  I’d guess that we’ll see three or four rulings on Thursday, with the remaining rulings to come next Monday (or perhaps this Friday).

I hope to be back from out-of-town travel in time for Thursday’s session (but I’ll be at the mercy of Amtrak).  For those eager to learn as quickly as possible what the Court has done, I’ll once again recommend SCOTUSblog’s live blogging and How Appealing.

06/23 10:30 AMShare

Upcoming Vote on Harold Koh’s Nomination?   [Ed Whelan]

Senate majority leader Harry Reid is moving for a floor vote this week on the nomination of Harold Koh to be State Department legal adviser.  (A collection of my posts discussing and criticizing Koh and his radical transnationalism is available at www.eppc.org/koh.)

06/23 10:20 AMShare

Monday, June 22, 2009

Sotomayor vs. Cabranes   [Ed Whelan]

This New York Times article on the relationship between José Cabranes and his former protégé Sonia Sotomayor has some interesting observations, including this one related to the rise of racial preferences:

Judge Cabranes, now 68, rose through the Ivy League as a lone Hispanic in an era before widespread desegregation, student protests or affirmative action, and he carried himself as a courtly aristocrat. Judge Sotomayor, now 54, came of age in the heat of the desegregation battles, bristled at any insinuation that being a beneficiary of affirmative action tempered her qualifications and organized the growing ranks of Hispanic students to argue for more hiring and admissions.

“It is generational,” said Cesar A. Perales, the president of LatinoJustice P.R.L.D.E.F. and a friend of both. “She grew up in a time in which there was such foment within minority communities to establish their rights, right in the middle of all that, a product of the ’60s,” Mr. Perales said. “José came up before all that. He never would have been seen as a victim of discrimination.”

But the article oddly, and without citing any examples or other meaningful evidence, repeatedly contrasts Cabranes’s and Sotomayor’s supposed judicial styles in a manner that denigrates Cabranes and favors Sotomayor:

Where Judge Cabranes is broadly expansive in his opinions, Judge Sotomayor is studiously narrow — tailored to the facts of each dispute, avoiding “grandiose pronouncements,” as her friend Judge Miriam Goldman Cedarbaum put it.…

[Cabranes] has acquired a reputation as an expansive and scholarly jurist….

In a sharp contrast to Judge Cabranes’s more expansive style, she and Judge Sotomayor found they agreed on a more cautious, scrupulously narrow, just-the-facts approach to judicial work, disdaining what they called “results-oriented judges” — meaning judges, including conservatives, who used elaborate ideas about democracy or constitutional interpretation to reach the ends they happened to favor.

Their shared approach is in part defensive, Judge Cedarbaum explained, to protect against future embarrassment. “When you make grandiose pronouncements on facts that are not before you, you might regret it when another set of facts comes up,” she said. “We don’t write philosophical treatises. We decide cases.”

The article even paraphrases fellow Second Circuit judge Guido Calabresi defending the “terse ruling” that Sotomayor joined in the New Haven firefighters case as “show[ing] a cautious reluctance to open the new and thorny questions Judge Cabranes wanted to take on.”  But Cabranes’s objection to the ruling was that it utterly failed to address the important issues that he believed that the case actually presented—a belief that at least four Supreme Court justices evidently shared, as the Court’s grant of review in the case indicates.  Calabresi confers the badly confused (see point 3 here) label of praise of “[j]udicial minimalism” on the panel ruling, but a failure to deal adequately, or even intelligibly, with a party’s claims hardly deserves praise.

06/22 02:53 PMShare

Clarity on the Voting Rights Act   [Todd Gaziano]

Today’s decision in the Voting Rights Act case confirms what the critics of the pre-clearance provision have been saying for years. And it’s a stark rejection of what most cowardly politicians and the traditional race-conscious establishment have long argued.

In contrast to the politicians’ claim that renewal of section 5, which requires states to get federal approval for voting changes, raised no serious constitutional issues, all nine justices agreed that the pre-clearance provisions of the Voting Rights Act are “raise serious constitutional concerns” or are actually unconstitutional. All justices also agreed that its prior decisions upholding the pre-clearance provision are no longer valid today and that the renewal of this provision, which constitutes a unique intrusion on the states, must be justified by current needs and conditions. Eight justices also agreed that the differentiation between covered and non-covered jurisdictions “may no longer be justified.” Justice Thomas, the only justice who did not join Chief Justice Robert’s opinion, would go further. He wrote that the Act not only was unconstitutional but that the Court should have so held.

It’s wonderful for the Court to speak with such clarity and seeming unity in its decisions, which is sure to spur further challenges to Section 5 of the Act.

— Todd Gaziano serves as a commissioner on the U.S. Civil Rights Commission and is director of the Center for Legal and Judicial Studies at the Heritage Foundation.

06/22 01:02 PMShare

Today’s Supreme Court Decision in Northwest Austin Municipal Utility District Number One v. Holder    [Roger Clegg]

The Court managed to avoid the question of the constitutionality of Section 5 of the Voting Rights Act by ruling 8-1 that the statute’s “bailout” provision should be interpreted more broadly. The good news is that more jurisdictions will now be able to apply for this exemption from coverage of Section 5; indeed, the Court’s decision should be read as encouraging more jurisdictions to do so (although it’s very uncertain whether many jurisdictions will take such a politically dicey step).

The disappointing news is that conservatives had hoped, especially given the tone of questions at the oral argument, that a majority of justices agreed with us that Section 5 is no longer factually justified (as Justice Thomas, the only justice to reach this question, concluded), and would say so. Section 5 is unconstitutional because it bans election practices that do not violate the Constitution, because it is extraordinarily intrusive in terms of federalism principles, and because it actually encourages government behavior that is unconstitutional, namely the racial segregation of voting districts through racial gerrymandering.

Still the Court has left the door open for future challenges — and not only to Section 5, by the way, but for an even more constitutionally dubious provision in the Voting Rights Act: its requirement that many jurisdictions print ballots and other election materials in foreign languages.

We look forward to these future challenges — and to the Court’s correct resolution of them.

06/22 12:14 PMShare

Today’s Voting Rights Act Ruling   [Ed Whelan]

Here’s a quick summary of the Court’s ruling in Northwest Austin Municipal Utility District Number One v. Holder:

The case presented two questions concerning the preclearance provision (section 5) of the Voting Rights Act:  (1) whether all political subdivisions subject to the preclearance provision are eligible to avail themselves of the “bailout” option; and (2) whether section 5 is unconstitutional.

Chief Justice Roberts’s opinion, joined in full by every other justice except Justice Thomas, ruled that the bailout option was available to all political subdivisions subject to the preclearance provision (not just to those that registered their own voters, as the court below had held).  Because the plaintiff utility district was entitled to a reversal of the judgment below on this statutory ground, the Chief Justice concluded that it was unnecessary to address the constitutional question.  His opinion did observe that the Act’s “preclearance requirements and its coverage formula raise serious constitutional questions.”

In his partial dissent, Justice Thomas opined that the preclearance requirement is unconstitutional.  (I haven’t yet read through his dissent.)

06/22 10:40 AMShare

Today’s Rulings   [Ed Whelan]

Thanks to the live blogging at SCOTUSblog, I can pass along that the Supreme Court today issued rulings in the following three cases:

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council—Clean Water Act issue; 6-3; Kennedy majority opinion; Ginsburg dissent, joined by Stevens and Souter

Forest Grove School District v. T. A.—eligibility for reimbursement for private-school tuition under Individuals with Disabilities Education Act; 6-3; Steven majority opinion; Souter dissent, joined by Scalia and Thomas.

A big surprise (in a case that many expected to have a tight margin):  8-1 vote in Voting Rights Act case, Northwest Austin Municipal Utility District Number One v. Holder.  Majority opinion by Chief Justice holds that the law must be interpreted to permit all political subdivisions to pursue the bailout option.  Partial dissent by Thomas.

06/22 10:15 AMShare

Shameless Self Promotion   [Robert Alt]

I will be joining Ken Boehm, Ted Frank, and moderator Quin Hillyer on a panel for the Capitol Hill Chapter of the Federalist Society at 12:30 pm today to discuss the topic of “Justice Delayed, Justice Denied.”  This lively talk will include discussion of cases such as Marshall v. Marshall (the Anna Nicole Smith bankruptcy-as-an-end-run-around-probate-case), Caperton v. Massey Coal (the recent case finding a potential Due Process injury when a judge sitting on a case putatively benefited from independent expenditures made against his judicial opponent), and District Attorney’s Office v. Osborne (last week’s SCOTUS opinion finding no constitutional right to obtain access to a state’s evidence for post-conviction DNA testing).  For those in the DC area, the price is right for this event—free—and lunch is provided.  Those interested in attending should rsvp here.

06/22 08:29 AMShare

re: Starr   [Kathryn Jean Lopez]

06/22 07:31 AMShare

Sunday, June 21, 2009

Saturday, June 20, 2009

Friday, June 19, 2009

Sotomayor Resigns Membership in Belizean Grove   [Ed Whelan]

Judge Sotomayor informed the Senate Judiciary Committee today that she has resigned from the Belizean Grove.  Her letter states that “I believe that the Belizean Grove does not practice invidious discrimination and my membership did not violate the Judicial Code of Ethics, but I do not want questions about this to distract anyone from my qualifications and record.”

As I’ve spelled out, although I’m disinclined to think that the Code of Conduct for United States Judges should forbid Sotomayor’s membership in the Belizean Grove, I believe that it appears to do so.  I also don’t see why she supposes that her resignation should eliminate questions about her previous membership or about her reasoning on the issue of “invidious” discrimination.

06/19 07:49 PMShare

More on Ken Starr on Sotomayor   [Ed Whelan]

Kathryn:  I have a great deal of respect for Ken Starr, who has been doing heroic work in defense of California’s Proposition 8 and in opposition to the California supreme court’s invention last year of a state constitutional right to same-sex marriage.  But I find it very strange that he would announce his support for Judge Sotomayor’s nomination, not least because Sotomayor may well be the fifth vote to invent a federal constitutional right to same-sex marriage.  Starr’s reported reasons appear very thin, and it’s not at all clear that he has any real familiarity with her record.

06/19 05:05 PMShare

Judge Sotomayor’s Misreliance on Foreign and International Law   [Ed Whelan]

I’ve just watched the 22-minute video of an April 2009 speech that Judge Sotomayor delivered to the ACLU of Puerto Rico on the topic of American judges’ use of foreign and international law.  It’s a terribly muddled speech in which Sotomayor explicitly embraces Justice Ginsburg’s misguided position and asserts that Justice Scalia and Justice Thomas misunderstand the issue even as she misconceives the basis of their objections.  (She also posits an unintelligible, but supposedly fundamental, distinction between “us[ing]” foreign and international legal materials and “consider[ing] the ideas that are suggested by” foreign and international legal materials.) 

A week ago, Senator Cornyn launched an impressive series of daily questions for Judge Sotomayor.  His first question in the series—“What is the proper role of foreign and international law in interpreting the United States Constitution?”— draws on Sotomayor’s speech.  I haven’t yet located a transcript of the speech (and haven’t transcribed the relevant portions myself), so I copy here Senator Cornyn’s account:

Judge Sotomayor argued that foreign and international law can be "very important" to American judges as a source of "good ideas" that "set our creative juices flowing." In response to those who oppose judicial consideration of foreign law to determine the limits of democratic decisionmaking, she stated at the 1:08 mark:

          How can you ask a person to close their ears? Ideas have no boundaries. Ideas are what set our creative juices flowing. They permit us to think, and to suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that is based on a fundamental misunderstanding. What you would be asking American judges to do is to close their minds to good ideas.

Judge Sotomayor also stated at the 20:48 mark that considering foreign and international law is part of a judge's "freedom of ideas":

          To the extent that we as a country remain committed to the concept that we have freedom of speech, we must have freedom of ideas. And to the extent that we have freedom of ideas, international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our legal system. It is my hope that judges everywhere will continue to do this.

As Cornyn points out, Sotomayor’s confused invocation of a judge’s “freedom of ideas” provides no warrant for use of foreign and international legal materials.  The unconstrained judicial role that Sotomayor’s comments reflect, and her apparent willingness to make freewheeling resort to foreign and international legal materials to define the meaning of provisions of our Constitution and statutes, are very troubling.  In my judgment, Sotomayor’s views on this matter provide a compelling basis for senators to vote against her confirmation.

(My July 2005 House of Representatives testimony on the general subject is here.)

06/19 04:49 PMShare

Re: Starr   [Kathryn Jean Lopez]

From an e-mailer: 

According to Mother Jones, Starr found it noteworthy in explaining his support for Sotomayor that “she twice came to Pepperdine to participate in a program the school runs for judicial clerks.”  If his support for her rests on stuff like that — and there’s certainly no evidence that he’s thoroughly examined her record — it’s difficult to see why anyone should take his view seriously.  You can be sure, though, that if his support can be purchased so cheaply, lots of other Supreme Court hopefuls will accept his invitations to visit Pepperdine.

06/19 04:33 PMShare

Supreme Court Status Check    [Ed Whelan]

As this report prepared by attorneys at the Mayer Brown law firm spells out, the Supreme Court still has 10 cases that await ruling before the justices take their summer break, probably at the end of next week.  The next announcement session is set for 10:00 on Monday.  There will probably be one or two additional announcement sessions next week (and possibly one as late as the following Monday).  SCOTUSblog will live-blog the sessions and post links to the opinions very quickly.  How Appealing is another good source to consult, both for links to the opinions and for early media accounts of the rulings.

The remaining ten cases include the New Haven firefighters matter (Ricci v. DeStefano) that has received so much attention in connection with Judge Sotomayor’s nomination; a challenge to the preclearance requirement under section 5 of the Voting Rights Act (N.W. Austin Mun. Util. v. Holder); a case (Safford United Sch. Dist. v. Redding) presenting the question whether a strip search of a student violated the Fourth Amendment; and a challenge to the application of campaign-finance laws to a film critical of Hillary Clinton (Citizens United v. FEC).

I see from the Mayer Brown chart that Justice Scalia currently leads the pack with nine majority opinions. (It would seem from his three majority opinions from the January sitting that Scalia, after conference in Montejo v. Louisiana, won over the necessary fifth vote that turned what would have been a dissent into the majority opinion.)  Justice Kennedy and Justice Alito so far have only five and six majority opinions, respectively, so expect more from them.  (Everyone else has seven or eight.)

06/19 01:38 PMShare

Doubletake News   [Kathryn Jean Lopez]

Ken Starr endorses Sotomayor.

06/19 08:49 AMShare

Thursday, June 18, 2009

Sotomayor's Second Try    [Wendy Long]

06/18 05:11 PMShare

Supreme Court Ruling on DNA Testing—Justice Souter’s Dissent   [Ed Whelan]

In his dissent in District Attorney’s Office v. Osborne, Justice Souter joined the portion of Justice Stevens’s dissent that opined that Alaska had violated the Due Process Clause by failing to provide adequate procedural protections for the postconviction relief that it afforded.  But he declined to opine at this time on “Osborne’s broad claim that the Fourteenth Amendment's guarantee of due process requires our recognition at this time of a substantive right of access to biological evidence for DNA analysis and comparison.” 

Souter’s broader explanation of his approach to substantive due process provides a particularly revealing insight into the mind of the liberal judicial activist.  I offer some excerpts here (some citations omitted; emphasis added), and have decided, with one exception, to resist the urge to insert bracketed comments of my own:

Tradition is of course one serious consideration in judging whether a challenged rule or practice, or the failure to provide a new one, should be seen as violating the guarantee of substantive due process as being arbitrary, or as falling wholly outside the realm of reasonable governmental action. We recognize the value and lessons of continuity with the past, but as Justice Harlan pointed out, society finds reasons to modify some of its traditional practices, and the accumulation of new empirical knowledge can turn yesterday's reasonable range of the government's options into a due process anomaly over time.

A substantive due process claim requires attention to two closely related elements that call for great care on the part of a court. It is crucial, first, to be clear about whose understanding it is that is being taken as the touchstone of what is arbitrary and outside the sphere of reasonable judgment. And it is just as essential to recognize how much time society needs in order to work through a given issue before it makes sense to ask whether a law or practice on the subject is beyond the pale of reasonable choice, and subject to being struck down as violating due process.

It goes without saying that the conception of the reasonable looks to the prevailing understanding of the broad society, not to individual notions that a judge may entertain for himself alone [Why, of course not! It takes at least five of you], and in applying a national constitution the society of reference is the nation. On specific issues, widely shared understandings within the national society can change as interests claimed under the rubric of liberty evolve into recognition, see Griswold v. Connecticut (1965) (personal privacy); Lawrence v. Texas (2003) (sexual intimacy), or are recast in light of experience and accumulated knowledge, compare Roe v. Wade (1973), with Planned Parenthood of Southeastern Pa. v. Casey (1992).…

Just as attachment to the familiar and the limits of experience affect the capacity of an individual to see the potential legitimacy of a moral position, the broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary to the point of being unconstitutional. The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.

06/18 04:56 PMShare

Supreme Court Ruling on DNA Testing—Justice Stevens’s Dissent   [Ed Whelan]

On the broader debate in District Attorney’s Office v. Osborne over the proper role of the Court, here’s my quick stab at providing relevant excerpts from Justice Stevens’s dissent (citations omitted):

Whether framed as a "substantive liberty interest ... protected through a procedural due process right" to have evidence made available for testing, or as a substantive due process right to be free of arbitrary government action, the result is the same: On the record now before us, Osborne has established his entitlement to test the State's evidence….

Recognition of this right draws strength from the fact that 46 States and the Federal Government have passed statutes providing access to evidence for DNA testing, and 3 additional states (including Alaska) provide similar access through court-made rules alone.…  The fact that nearly all the States have now recognized some postconviction right to DNA evidence makes it more, not less, appropriate to recognize a limited federal right to such evidence in cases where litigants are unfairly barred from obtaining relief in state court.

When government action is so lacking in justification that it "can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense," it violates the Due Process Clause. In my view, the State's refusal to provide Osborne with access to evidence for DNA testing qualifies as arbitrary. Throughout the course of state and federal litigation, the State has failed to provide any concrete reason for denying Osborne the DNA testing he seeks, and none is apparent.

In the same way [as with the Court’s ultimate recognition of a Sixth Amendment right to counsel for all indigent criminal defendants, a decision to recognize a limited right of postconviction access to DNA testing would not prevent the States from creating procedures by which litigants request and obtain such access; it would merely ensure that States do so in a manner that is nonarbitrary.

The majority's position also resembles that taken by Justice Harlan in his dissent in Miranda v. Arizona, in which he faulted the Court for its "ironic untimeliness." He noted that the Court's decision came at time when scholars, politicians, and law enforcement officials were beginning to engage in a "massive reexamination of criminal law enforcement procedures on a scale never before witnessed," and predicted that the practical effect of the Court's decision would be to "handicap seriously" those sound efforts. Yet time has vindicated the decision in Miranda. [??]

06/18 04:26 PMShare

Supreme Court Ruling on DNA Testing—The Chief’s Opinion   [Ed Whelan]

As I mentioned in my initial post about today’s ruling in District Attorney’s Office v. Osborne, the case presents a very interesting debate about the proper role of the Court.  Here are excerpts from Chief Justice Roberts’s majority opinion (citations omitted):

Modern DNA testing can provide powerful new evidence unlike anything known before….  The dilemma is how to harness DNA's power to prove innocence without unnecessarily overthrowing the established system of criminal justice.

That task belongs primarily to the legislature. "[T]he States are currently engaged in serious, thoughtful examinations," of how to ensure the fair and effective use of this testing within the existing criminal justice framework. Forty-six States have already enacted statutes dealing specifically with access to DNA evidence.… The Federal Government has also passed the Innocence Protection Act of 2004, which allows federal prisoners to move for court-ordered DNA testing under certain specified conditions.…  These laws recognize the value of DNA evidence but also the need for certain conditions on access to the State's evidence.…

To the degree there is some uncertainty in the details of Alaska's newly developing procedures for obtaining postconviction access to DNA, we can hardly fault the State for that. Osborne has brought this §1983 action without ever using these procedures in filing a state or federal habeas claim relying on actual innocence. In other words, he has not tried to use the process provided to him by the State or attempted to vindicate the liberty interest that is now the centerpiece of his claim.

To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response.… "By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field." If we extended substantive due process to this area, we would cast these statutes into constitutional doubt and be forced to take over the issue of DNA access ourselves. We are reluctant to enlist the Federal Judiciary in creating a new constitutional code of rules for handling DNA.

Establishing a freestanding right to access DNA evidence for testing would force us to act as policymakers, and our substantive-due-process rulemaking authority would not only have to cover the right of access but a myriad of other issues. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when? No doubt there would be a miscellany of other minor directives.

06/18 04:06 PMShare

Supreme Court Ruling on DNA Testing   [Ed Whelan]

In District Attorney’s Office v. Osborne, the Supreme Court ruled today, by a 5-4 vote, that a prisoner does not have a constitutional right, under the rubric of either procedural due process or substantive due process, to obtain postconviction access to the evidence against him in order to subject it to DNA testing.  On initial review, this ruling strikes me as a welcome exercise of judicial restraint on a matter that state legislatures have the authority to address (and are in fact addressing).

Chief Justice Roberts wrote the majority opinion, which was joined by Justices Scalia, Kennedy, Thomas, and Alito.  Justice Alito wrote a concurring opinion that provided additional reasons to reject the prisoner’s claim; Justice Kennedy joined Alito’s opinion in full, and Justice Thomas joined one of its two parts.  Justice Stevens wrote the primary dissent, joined by Justices Ginsburg and Breyer and in part by Justice Souter.  Justice Souter wrote his own dissent.

The competing opinions present a very interesting debate about the proper role of the Court.  I will provide excerpts from the opinions in follow-on posts.

06/18 03:57 PMShare

Richard Thompson Ford’s Confused Irony About Ricci   [Ed Whelan]

On Slate, Stanford law professor Richard Thompson Ford argues that “conservatives” (like Second Circuit judge, and Clinton appointee, José Cabranes?) who complain about Judge Sotomayor’s treatment of the employment-discrimination claims presented by the New Haven firefighters in Ricci v. DeStefano should instead blame Justice Scalia and other conservative justices for making it too hard for plaintiffs to win employment-discrimination claims.  But the grand irony that Ford posits rests on his distorted account of Supreme Court precedent and on his misunderstanding of the procedural posture of the proceedings in Ricci.

Ford contends that Frank Ricci has “been treated just like any other plaintiff suing for employment discrimination,” and that “the reason that people who sue for employment discrimination … rarely win their cases is that conservative judges have spent decades making sure they usually lose.”  According to Ford, “as Justice Scalia made clear in [St. Mary’s Honor Center v.] Hicks, the employer doesn’t have to prove that there was a good reason for its decision; it needs only to claim that there was one.”  “At this point, to keep his case alive, the plaintiff has to prove that the employer’s [claimed] reason is just a pretext.”  Even if the plaintiff does prove that the employer’s claimed reason is a pretext, “the plaintiff will still lose if the judge or jury decides that the employer acted for a different nondiscriminatory reason from the one that was given.”  Ricci’s “best argument” might have been to argue that the city acted from “mixed motives”—partly legitimate and partly discriminatory—but Ricci “didn’t argue it at trial,” and Sotomayor and her panel colleagues therefore couldn’t consider that argument.

Ford’s argument is a jumble that fails to distinguish between summary judgment and trial and that misstates the Supreme Court’s ruling in Hicks.  Let’s examine Ford’s confusion:

1.  Ford claims that Scalia’s majority opinion in Hicks establishes that “the employer doesn’t have to prove that there was a good reason for its decision; it needs only to claim that there was one.”  That’s not accurate.  What Scalia explains in Hicks concerns the so-called shifting burdens of production (as distinct from burden of proof) in the trial of employment-discrimination cases.  Specifically:  The plaintiff must first establish, by a preponderance of evidence, a “prima facie” case of discrimination.  Once he has done so, the defendant has the burden of producing an explanation to rebut the prima facie case.  It’s not enough for the defendant “only to claim that there was” a “good reason for its decision.”  Rather, the “‘defendant must clearly set forth, through the introduction of admissible evidence,’ reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.”  (Emphasis omitted.)  If the defendant does so, the plaintiff then has the full opportunity to demonstrate that the proffered reason was not the true reason and that unlawful discrimination was a cause. 

2.  Ford’s asserts that “at this point”—i.e., once the employer has merely claimed that it had a good reason for its employment decision—“to keep his case alive, the plaintiff has to prove that the employer’s [claimed] reason is just a pretext.”  Any reader who knows that the district court granted summary judgment in favor of the City of New Haven would be justified in thinking that Ford, in referring to what a plaintiff must do “to keep his case alive,” is explaining what a plaintiff has to do in order to avoid having summary judgment granted against him. 

But, of course, a plaintiff need not “prove” that the employer’s claimed reason is pretextual in order to survive summary judgment.  The defendant employer, as the moving party, would instead have to persuade the judge that no reasonable jury, construing the facts in the light most favorable to the plaintiff, could determine that the employer had discriminated.  In other words, a plaintiff would defeat the employer’s motion for summary judgment by offering evidence that, construed most favorably to the plaintiff, would enable a jury to find that the employer’s claimed reason was pretextual and that the employer engaged in discrimination.  Ford himself acknowledges that the New Haven firefighters offered such evidence—namely, evidence that “New Haven refused to certify the exam results because of political pressure to promote blacks.”

3.  Ford himself seems not to understand that the district court granted the City of New Haven’s motion for summary judgment.  Why else would he contend that Ricci “didn’t argue [mixed motives] at trial”?  Ricci and his fellow firefighters didn’t argue anything at trial because the district court’s grant of summary judgment prevented them from proceeding to trial. 

Even President Obama’s Justice Department has argued to the Supreme Court that the district court was wrong to grant summary judgment against the firefighters—and that Judge Sotomayor and her panel colleagues were wrong to affirm the district court.  Depending on how the issues of law now before the Supreme Court are decided, it is certainly possible that the New Haven firefighters will proceed to trial on their claims and, under the sensible framework that the Supreme Court has established, fail to persuade the jury of the merits of their claims.  But that possibility should not distract attention from the fact that there is ample reason, as Judge Cabranes’s blistering dissent from denial of rehearing en banc illustrates, to blame Judge Sotomayor for not giving fair treatment to the firefighters’ claims.

06/18 01:11 PMShare

Belizean Grove: More Double Standards, More Double Talk    [Wendy Long]

06/18 09:56 AMShare

Re: Judge Sotomayor and the Belizean Grove   [Matthew J. Franck]

Michael Kinsley has some choice words for Judge Sotomayor's explanation that it "did not discriminate in an inappropriate way":

If Obama had nominated a man who was a member of the Bohemian Grove, that would be a big issue and probably a fatal one. So how is it different if Sotomayor is a member of a club set up specifically to be the female equivalent? Rather than try to answer this question honestly, Sotomayor chose to make the preposterous argument that the Belizean Grove isn't a women's club. It's just that no men have ever applied for membership, you see. White clubs used to explain the absence of black members the same way. It's a laughable argument—a brazen whopper—and an insult to the citizenry and the Senate that must confirm her.

The rest is pretty good too.

06/18 07:38 AMShare

Wednesday, June 17, 2009

Judge Sotomayor and the Belizean Grove   [Ed Whelan]

As the New York Times reported yesterday, Judge Sotomayor has informed the Senate that (in NYT’s phrasing) the Belizean Grove, the “all-female networking club” she belongs to, “did not discriminate in an inappropriate way.” 

I don’t have a settled position on what rules ought to govern a judge’s membership in a men-only or women-only club (or on the broader question of what public policy towards such clubs ought to be).  On the one hand, I’m generally inclined to favor a genuine diversity in which men and women would have choices among single-sex and men-and-women clubs.  On the other hand, I recognize that, deliberately or otherwise, some men-only clubs may operate to deprive women of unique or important opportunities for networking and advancement in the business world.  My impression is that that problem is far less common than it was 25 or 30 years ago, largely because so many business-related clubs that were previously men-only have chosen to open, or been forced to open, to women.

Whatever debate there might be over what the rules ought to be, there should be little dispute that judges ought to comply with the rules that are actually in effect.  Let’s consider whether Judge Sotomayor has complied with Canon 2C of the Code of Conduct for United States Judges.  Canon 2C states:  “A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.”  The commentary to Canon 2C provides this additional guidance:

Whether an organization practices invidious discrimination is often a complex question to which judges should be sensitive. The answer cannot be determined from a mere examination of an organization's current membership rolls but rather depends on how the organization selects members and other relevant factors, such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members, or that it is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited. See New York State Club Ass'n. Inc. v. City of New York, 487 U.S. 1, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 107 S. Ct. 1940, 95 L. Ed. 2d 474 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984). Other relevant factors include the size and nature of the organization and the diversity of persons in the locale who might reasonably be considered potential members. Thus the mere absence of diverse membership does not by itself demonstrate a violation unless reasonable persons with knowledge of all the relevant circumstances would expect that the membership would be diverse in the absence of invidious discrimination. Absent such factors, an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex, or national origin persons who would otherwise be admitted to membership. 

I’m certainly not going to contend that this guidance is crystal-clear.  But my initial take is that none of the factors that would tend to excuse discrimination on the basis of sex are present in the case of the Belizean Grove.  Judge Sotomayor contends only:

Men are involved in its [the Belizean Grove’s] activities—they participate in trips, host events, and speak at functions—but to the best of my knowledge, a man has never asked to be considered for membership. It is also my understanding that all interested individuals are duly considered by the membership committee.

As Jennifer Rubin points out, the “we let the guys come to party” defense “is reminiscent of the ‘we let women be social members’ excuses that exclusive men’s clubs routinely gave for decades—and which were scorned by women’s groups.”  Further:

[T]he line about “no one ever asking to join” is rich. Certainly if one declares the organization to be “all men” or “all white” or “all anything” those not in the “all” group are going to be dissuaded from seeking membership. Isn’t the mere statement of exclusivity enough to raise concerns?

It would therefore seem that the default rule set forth in the last sentence of the commentary to Canon 2C (which I have italicized) presumptively applies.  It’s also worth noting that Judge Sotomayor, before becoming a member of the Belizean Grove, could have requested that the Committee on Codes of Conduct provide her a confidential advisory opinion about the propriety of membership. 

I won’t claim that Sotomayor’s membership in the Belizean Grove is itself a matter of any concern to me.  But her apparent violation of Canon 2C and her readiness to rationalize her own participation in reverse discrimination tie into broader concerns about her impartiality.

Further, what’s sauce for the goose ought to be sauce for the gander.  In that regard, I’ll highlight Jeffrey Lord’s essay on Judge Brooks Smith’s confirmation travails (“Pat Leahy’s Fish Story”), which discusses how Senate Democrats in 2002 went into conniptions over Smith’s former membership in an all-male fishing club.

06/17 10:48 AMShare

Re: Senator Leahy and 'Conservative Activism Pure and Simple'    [Roger Clegg]

A couple of addenda to yesterday’s post on Senator Leahy’s speech, in which he says it would be “conservative activism” were the Supreme Court to strike down Section 5 of the Voting Rights Act as unconstitutional.

First, here’s an analogy I could have added to the “footnote” at the end: If a policeman asks a judge for a search warrant and produces no evidence, he won’t get it; if he produces good evidence, then he will get it. That’s not judicial activism. Likewise, as the evidence of severe discrimination peculiar to the South diminishes, so will the defensibility of Section 5 before the courts. That’s not judicial activism either.

Second, it’s always amusing when liberals try to tell conservatives how to apply our judicial philosophy, and not just because they always get it wrong. As Andy Rooney might put it: Ever notice how liberals are always telling conservatives how to apply their judicial philosophy, but conservatives never tell liberals how to apply theirs? Why is that? Well, Andy, the reason is that liberals have no coherent, objective philosophy, so it’s impossible to accuse them of misapplying it.

Seriously, can you think of a situation where a conservative could say, even if he wanted to, “Today’s Supreme Court decision is completely at odds with the approach to judicial decisionmaking that liberals say they favor”? 

06/17 10:31 AMShare