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Can't let the month of May end without answering the Recusal Quiz question. As readers will recall, the quiz was occasioned by Linda Greenhouse's report that the Supreme Court had affirmed a lower court decision. The reason? Four justices recused themselves on account of "[f]inancial and personal conflicts of interest" in the case, in which victims of the apartheid era seek damages from myriad corporations that did business in South Africa during that time. Over at Opinio Juris, Roger Alford wondered whether "anything like this" had occurred "in such an important case." Convictions' Recusal Quiz posed that question more pointedly:
In what case decided 60 years ago this month did three justices recuse themselves because they had a financial stake in the outcome of the issue at bar?
The answer:
Shelley v. Kraemer, decided May 3, 1948, in which the court held that a state judge violated the Equal Protection Clause of the 14th Amendment by enforcing a deed covenant that forbade the transfer of property to African-American buyers.
The vote in Shelley was 6-0. The reason? Justices Robert H. Jackson, Stanley Reed, and Wiley B. Rutledge recused themselves; each owned property subject to racially restrictive covenants. Had one more justice been in the same situation, the court would have lacked a quorum in Shelley. Instead of a unanimous vote against, the result would have been a vote in favor of racially restrictive covenants—and that result would have obtained until either the composition of the court or the property holdings of its members changed.
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Rick Hills has a series of excellent posts on slippery slopes (see here, here, and here). He argues that slippery slope arguments should be regarded with suspicion, and he singles out the refrain from opponents of gay marriage: If you permit gay marriage, then you must also permit polygamous marriages, marriages between people and animals, and all other marriages between a person and any object of desire. Hills argues that such slippery slope arguments deny the existence of "conceptual ledges"—or, one might say, ethical ledges—that prevent the institution of marriage from sliding into the abyss of a sexual Babylon. We are capable of making distinctions on the basis of some moral theory about the purpose of an institution. If the purpose of marriage is to encourage long-term romantic relationships between two people, possibly though not necessarily with procreative consequences, then different-sex and same-sex marriage are morally indistinguishable. Why, Hills asks, does the slippery slope argument persist?
We can address Hills' puzzle about the popularity of slippery slope arguments by asking why no one made the following argument, say, 20 years ago when the idea of same-sex marriage was still as outrageous as the idea of polygamy is today. Why didn't, say, a feminist opponent of marriage make the following argument to conservatives who (mistakenly) believed that they should support traditional marriage: "You think you support traditional marriage. But if you define a traditional marriage as a long-term romantic relationship (etc., etc.) and you don't think that infertile and elderly people should be denied the right to marry, and thus you don't think it is essentially a procreative relationship, then you, via slippery slope, must also think that same-sex couples have the right to marry. Since you can't and don't think that, you should withdraw your support for opposite-sex marriage. People who make long-term commitments should receive no special legal status; otherwise, we are on the slippery slope to sexual Babylon."
Why would such an argument have seemed odd? The answer is that slippery slope arguments depend on a strong presumption in favor of the status quo, and thus are invoked only when someone advocates departing from the status quo (extending marriage rather than preserving it). This presumption in favor of the status quo reflects anxiety that if we depart from existing patterns of behavior, reason will not be strong enough to justify a new set of conventions that we can be happy with. Lawyers will recognize this anxiety from ordinary common-law reasoning. Judges rarely question precedents, and when lawyers argue that precedents should be overturned, the opposite side will make a slippery slope argument. The sanctity of precedent reflects the old cliché that it is better that the law be settled than be correct. The same point can be made about social conventions. That is why one sees both conservatives and liberals making slippery slope arguments. Liberals typically make these arguments when someone advocates relaxing civil liberties in order to address some new problem. "If we give the government the power to engage in surveillance of international calls without a warrant, we are on our way to dictatorship." So use of slippery slope arguments is not particularly conservative or liberal, at least not in a political sense. But it does reflect a conservative or legalistic habit of mind, one that fears departing from existing rules because of pessimism that society can arrive at a set of rules that are superior. Most social conventions are arbitrary—we could be equally happy or unhappy with a different set of conventions, and the particular moral theories used to justify existing conventions are frequently phony, after-the-fact rationalizations for the way things are—but some set of conventions is necessary for social life. So if we are constantly having to justify them, we will find that we can't, in which case we will incur very high transition costs for the sake of moving to another set of conventions that will, in short order, seem no less arbitrary than those from which we started.
The slippery slope argument has become shorthand for the view that if we try to make sure that all our social and legal conventions are morally justified, we will end up with no conventions or (what is almost the same thing) in a state of permanent transition between different conventions, which would be worse than tolerating existing conventions that are unjust. This argument is, at the extreme, an objection to any time of reform, and so cannot always carry the day, but it is not an argument that one can refute simply by showing that the proposed new convention is morally superior to the old one. But the reason this argument persists in the same-sex-marriage debate is that it is impossible to point out any concrete harms from recognizing same-sex marriage, and thus the only argument left is this anxiety about the arbitrariness of conventions.
Perhaps liberals and conservatives can make a pact: If liberals stop arguing that any reduction in civil liberties in order to combat terrorism will result in dictatorship, conservatives will stop arguing that any relaxation in our sexual conventions will lead to perdition. On the other hand, if both turn out to be right, we will find ourselves sliding in the direction of a police state that is a sexual Babylon—something for everyone, I guess. Odd that there is not a coalition yet that connects imperial flourishing with sexual and cultural as well as political decadence. We will have to await another Edward Gibbon to make this argument.
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There's a University of California-Berkeley alum in my household, and so we're frequently inundated with promotional materials from the university.
Last week we received the latest issue of The Promise of Berkeley, a big glossy production designed to tout the accomplishments of members of the university community. The spring issue includes a piece promoting the close connections between Cal Berkeley and the U.S. government here in D.C. "A number of Berkeley's faculty have held positions in past presidential administrations or worked closely with presidential candidates," it boasts. And so The Promise of Berkeley asked six faculty members—"three from each side of the aisle"—to "reflect on their time in Washington, what's at stake in the 2008 presidential election, and what Berkeley means to them."
The Dems profiled are, not surprisingly, Chris Edley, Bob Reich, and Janet Yellen. The editors apparently had a more difficult time finding prominent Republican officials on their faculty: They chose Dan Schnur (a poli-sci lecturer who worked on McCain's 2000 primary campaign), Sandy Muir (a speechwriter for Bush 41), and, you guessed it ... John Yoo.
Continued at Balkinization ...
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With the conviction of elite track coach Trevor Graham, the government scored yet another victory in it' war on elision. Graham joins a legion of high-profile defendants (Scooter Libby, Lil' Kim, Martha Stewart, etc.) who have been prosecuted and convicted not for the conduct at the center of the investigation but for being less than fully candid about some aspect of it. And though this might sound like a fine thing, at some point the general publici s going to finally start to listen to the age-old advice of criminal defense lawyers everywhere—don't talk to the cops. Don't talk to the feds. Not ever. Not about anything. Ever.
Federal agents, like their state law counterparts, have enormous power to make people talk. They use intimidation, the threat of public humiliation, and a myriad other tactics to get reluctant people sit down with them for "voluntary interviews." To get a sense of what I'm talking about, recall the scorn heaped on the Ramseys after their child JonBenet was murdered. Then again, had John and Patsy talked, there is little doubt that innocent or not, they'd have wound up in a jail cell somewhere.
By using perjury the way Elliot Ness used tax evasion, the federal government runs the risk of a backlash. This is especially true when (as in Martha Stewart's case) the statements at issue were made not during depositions or trials, but rather in informal, almost casual conversations with agents (some of which were never even recorded or transcribed). Given that even a fairly minor misstatement made in the course of a casual chat with a federal agent can lead to a prison sentence, the day may soon arrive that normal middle-class citizens begin to adopt attitudes toward talking to the police that mirror those long held in poor communities of color: Just don't. And that will start to really hamper investigations and genuinely harm law enforcement.
Time to throttle back on the perjury cases? High time, I think.
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Memo to the New York governor:
Re: Your same-sex juggernaut.
Regarding your decree for New York to be same-sex-marriage friendly—my, you are quick—too quick. Thanks to thoughtful comments received to my earlier expressed concerns about your action, let me remind readers upfront that I filed on the side of traditional marriage in the California cases. While the California opinion is long (more than 170 pages and thoughtful in many ways, it managed not to fully discuss either the procreative importance or religious significance of the traditional family). But unless the court reconsiders, which I doubt, or the people overturn by constitutional amendment, which is too close to call, California by its regular legal process is marching ahead—hopefully—in a way that strengthens community and marriage and, most importantly, families upon which so much depends.
Your executive memorandum by these terms seems imprudent. Here's why:
Article IV of the U.S. Constitution provides that "full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other state." It has been a much-debated question among legal scholars as to what exactly it means when one state—say, California—approves something highly controversial like same-sex marriage when another state—oh, say, New York—has strongly disapproved of the same issue in its highest court. You and your legal counsel have not, in my judgment, fully addressed either the meaning of Article IV against the backdrop of New York's public policy in your hasty directive, and, by your precipitous action, perhaps damaged your own position.
Of course, as a matter of precedent, I know you got zero help from Massachusetts. A quirky old Massachusetts law limited its same-sex ruling to itself—that is, residents of Massachusetts. Imagine stodgy old Massachusetts approving same-sex marriage, but then refusing to marry nonresidents.
California by contrast is made up of people who arrived here yesterday, so we are not that picky. No waiting periods, no residency requirement, and since we're not much bothered if others don't approve of us, no reciprocity required, either—that is, we're willing to issue same-sex licenses whether other states think them valid or not. California is thus hanging 10 on this surfboard all alone, so it's good of you to send us some New Yorkers to keep us company. But here's a question for you, governor, as you are welcoming back home your residents returning from Disneyland: Does your executive pronouncement also authorize New Yorkers who don't have the gas money for Route 66 or airfare to fly cross-country to Laguna Beach to get married in Massachusetts or not?
Oh, wait, that's really a question for the people of Massachusetts; indeed, the Legislature of Massachusetts. The Legislature actually still makes the laws in the Bay State. To someone, such as yourself, with rapid-fire executive pen, lawmaking by lawmakers may seem quaint, even retro. And get this, they are so into that John Adams HBO special, the tricorn-hatters in Massachusetts even have courts working out the kinky ambiguities in statutes. And kinks there can be, like whether the nonavailability of same-sex marriage in Massachusetts to nonresidents turns on whether the nonresident's state constitution does not mandate same-sex marriage (which is the view of the New York Court of Appeals about the New York constitution) or your rather unprecedented, if not unauthorized, order that out-of-state same-sex marriages simply be treated as valid. A single lower-court benefits decision that was not appealed is too slender a foundation for remaking the public policy of the state as it has existed, well, since the state has existed, and as recently confirmed by your high court.
At a minimum, you'll admit it's a question worthy of the final Jeopardy round. Oh, not perhaps for someone like yourself, governor, whose clairvoyant almost paranormal executive decision-making is, as we say in Malibu, way cool. By the way, just curious, but how exactly did you know to instruct New York on the need to handle California same-sex marriages the day before the case was decided?
But don't get us wrong—out here in "Cal-ee-for-nee-a," we like our action-figure governor (you two should "do lunch"), and of course, we're thrilled to be thrust into even an off-Broadway spotlight. We may complain about paparazzi and have Ken Starr drafting ordinances to keep ‘em edgy, but we actually crave the attention. (Who knew, right?)
This "speed racer" disposition of yours is particularly generous since the same-sex marriage licenses we're minting today may not be worth a postage stamp after next November if the people of California decide to amend the constitution and overturn our Supreme Court. As I say, the outcome of that is uncertain and worthy of intelligent debate, and so, as busy as you are making, interpreting, and enforcing laws—you might well hesitate on our ambivalent account. Moreover, governor, a few of your cranky bureaucrats may snipe at you for the massive administrative headache you may have just created in matters of tax, child custody, divorce, insurance, and such by giving full faith and credit to that which California may or may not decide in a few months is au passé. Trends are like that out here, so do try to keep up.
Or better yet, why not wait until the people of New York themselves can chat it up with those elected representatives in Albany? Way boring, I know—no carpe diem, no 15 minutes of fame. Nope, just listening to the people and governing in accordance with their usually sound inclinations. This won't get you Oprah—and definitely not Ellen. It will give you the satisfaction, however, that you kept your oath.
Sure, the niceties of lawmaking and law interpreting and law enforcing could all be done in your office. If democracy were premised upon efficiency, rather than representation and deliberation, this would be a salutary thing. As it is, Madison had a name for the usurpation of power and its unification in a single hand: tyranny.
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Tribe's response can be found on Balkinization:
http://balkin.blogspot.com/2008/05/larry-tribe-on-liberty-and-equality.html
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that with nothing left to lose, and the Democrats likely to gain political power in the near future, the Republican-appointed justices on the Supreme Court might vote to overturn Roe v. Wade because they no longer fear that overturning Roe will seriously damage Republican electoral changes—at least, that is, any more than they have already been damaged. I believe this result is unlikely, on several grounds.
continue reading at Balkinization ...
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Well, it looks like John McCain will have to stop using Roberts-Alito as if it were one word to describe his preferred type of judicially restrained nominee.
In recent disquisitions about judges, McCain has been trying to simultaneously shore up his conservative base without riling up his moderate friends. It's a difficult rope to walk without hanging oneself. Indeed, the conservatives have already noted a McCain tendency to flatter Roberts and Alito but to omit the more controversial (to moderates) Scalia and Thomas.
Now McCain has a new problem. Roberts and Alito are going different ways. What is a candidate trying to rely on the caricature of judicial activism to do?
Justice Alito has twice rejected the chief justice's willingness to allow government activities immunity from the jurisprudence of the dormant commerce clause that preserves an interstate market from economic protectionism (Kentucky Department of Revenue v. Davis this term and last term United Haulers v. Oneida-Herkimer Solid Waste Management Authority both thoughtfully discussed by Lyle Dennison on SCOTUSblog), and today these Reagan fraternity brothers are divided over an important age-discrimination case. Justice Alito took a lot of heat for carefully parsing the statute of limitation under Title VII last year, which denied a gender-discrimination lawsuit as being beyond the time permitted to sue (Ledbetter v. Goodyear). Roberts agreed with him on that one. Today, in Gomez-Perez v. Potter, however, Alito and Roberts divided again over an age-retaliation claim under the ADEA, with Alito allowing it.
The Alito opinion is a testament to meticulous statutory analysis, fully utilizing text and legislative history as well as situating the decision in the larger body of civil rights and employment statutes and precedent. It gives lie to the notion that Alito is pro-business or anti-employee, so prominently alleged during his confirmation hearing. As his colleagues on the 3rd Circuit knew (and testified, contrary to the academic sniping), Justice Alito is simply pro-reading-the-law-carefully. That is not to say the chief justice doesn't read statutes well—it's just that his dissenting opinion today puts far more emphasis upon a speculation drawn from why the executive branch has separately treated retaliation claims for federal workers differently than can be found in the text and structure of the statutory regime.
What should not be lost, however, is that even as Alito and Roberts disagree, it is a disagreement that is both civil and broadly incorporating of respect for precedent and legislative history.
And what about Justices Scalia and Thomas—those great unmentionable ones to Sen. McCain? They separately dissented in Gomez-Perez because of, among other reasons, one suspects, Justice Scalia's well-known dislike for any mention of legislative history.
Oh, and to make things more interesting, Roberts-Alito split together from Thomas-Scalia in a second case, CBOCS West v. Humphries, implying a retaliation claim under Section 1981, a statute that deals expressly with race only. Thomas and Scalia have made a point of emphasizing that racial discrimination and retaliation for racial discrimination are not one in the same. Analytically, it is a sound point. Unfortunately, it is also a point that the court has rejected several times, and that precedent (right or wrong initially) is too embedded in the overall structure of civil rights law to be set aside, a point nicely highlighted by Emily.
Will the real judicially restrained judge please step forward? Using the canard of widespread judicial misbehavior is just not in the cards for John McCain. We are the better for it, and the independent-minded John McCain of 2000 would have agreed.
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The Supreme Court today held 7-2 that a black former employee of Cracker Barrel can go ahead and sue the company for retaliation, based on his allegations that it fired him for complaining about racial discrimination. A few months ago, I thought that the case might come out the other way and serve as a vehicle for the court's conservatives to rein in employment-discrimination law. Instead, Justice Stephen Breyer's opinion—joined by all the justices but Antonin Scalia and Clarence Thomas—relies on the principle of stare decisis, or respect for past precedent, to allow employees to sue for retaliation based on an 1861 law that doesn't mention retaliation explicitly. The key precedents are a 1969 holding from the Warren Court striking down a restrictive housing covenant and a 5-4 ruling about retaliation claims brought via Title IX (the law that prohibits gender discrimination in school sports) written by Sandra Day O'Connor in 2005. Breyer carefully lays them out and then writes that considerations of stare decisis "impose a considerable burden upon those who would seek a different interpretation that would necessarily unsettle many court precedents." A page later, he acknowledges that the statute nowhere mentions retaliation (nor did Congress add it in amending the law in 1991). But, Breyer writes, "that fact alone is not sufficent to carry the day."
Thomas and Scalia disagree. Kennedy, Alito, and Roberts, however, stand with Breyer in upholding the Warren Court decision and the O'Connor majority opinon instead of going with the plain text reading. There are good reasons for the majority's position aside from stare decisis: As Breyer points out, when Congress re-enacted the law in 1991, lawmakers thought they were expanding the statute's original scope. But the main point is that it will be worth watching if and how today's division over how to read a statute plays out among the conservatives. Also, today's opinion is more fodder for Linda Greenhouse's observation about the decline of the 5-4 split, at least so far this year.
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Eric's provocative question whether "within-family reproduction is good in itself" is essentially asking whether the fall in fertility among existing Americans is fungible with the fecundity of recent immigrants from other nations and cultures. Without indulging too much American exceptionalism, I do think there is a distinctive American culture that is lost by that trade. Giving expression to that distinctiveness would violate every principle of blog writing, but for shorthand, let's just say one finds evidence of it in everything from the natural law premises of this Republic's Declaration of Independence to the great success of the recent John Adams HBO special to the content of any presidential aspirant's stump speech. These things begin to capture some of what is lost by supposing immigration to be a perfect substitute for our modest replacement rate.
Thus the significance of sustaining the marital family is far more than a favorable worker-retiree ratio, though that would be helpful in itself to avoid the coming Social Security bankruptcy attributable to both the population decline, and more immediately, the extreme war-related fiscal irresponsibility of the incumbent president. I concede Eric's point that it is more efficient to have people save for their own retirement and avoid transfer payments, but that is not the economic structure we have.
Eric's pro-immigration sentiment expressed within the sentence "paying people to have more babies doesn't seem reasonable when there are so many millions clamoring to get in" does earn two cheers from me, but it not only understates the uniqueness of American culture, it also misses entirely that a marital family is indeed worth preserving and far more than a "bourgeois construct designed to channel the revolutionary energy of sexuality into diaper changing and carpool planning."
In its traditional form, marriage transforms by covenant the emotional and sexual attraction of two individuals into a lasting relationship (AEI's Michael Novak reports modern marriages have a 66 percent success rate) capable of sharing intimate personal goods as well as serving larger social purposes. That the California Supreme Court declares these same personal goods to be within a same-sex relationship has to date been the public debate. To leap from the acceptance of the inclusionary California ruling to the dismissal of marriage as a "bourgeois construct" is a far more revolutionary notion that I suggest Eric may wish to rethink by simply indulging the thought experiment of how uninviting a world without the civilizing efforts of marital family would be. When the marital union is strong, it is also stable, and in this atmosphere of stability children are welcomed and reared to be responsible, healthy, and well-educated citizens. Who exactly undertakes this responsibility under Eric's model?
Intra-marital union or intra-family, freedom is acknowledged in exchange for the faithful performance by the family of social expectations or obligations toward the education and care of family members. The public sovereign respects the private marital union so long as it sustains itself and yields new individuals with sufficient qualities to maintain the ongoing functions of the community as a whole. In short, it is anticipated that those raised intra-family have received such direction that, upon emancipation and emergence into the public community as free and independent citizens, they will live productive lives and respect the equal dignity of human beings.
Finally, as for "the planet chok[ing] on the greenhouse-gas emissions of the multiplying hordes," this neo-Malthusian supposition is empirically misdirected when world population growth has declined by more than 40 percent since the late 1960s.
Worried about greenhouse gases? It would be far more direct, to use Eric's terminology, to require automakers (and fuel-inefficient, consuming auto-buyers) to pay for the actual value of the air resources their products consume than to undermine the foundation of the civilized world as we know it.
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In his interesting post, Doug Kmiec argues that the U.S. government should adopt French child-subsidy policies in order to encourage Americans to have more children. But unless within-family reproduction is good in itself—more on this in a moment—there is no reason to ape the French, whose motives are, as Kmiec notes, entirely based on demographic fears that do not exist in the United States. Thanks to immigration and the fecundity of recent arrivals, the U.S. population is already growing; why would we want it to grow more rapidly?
Doug thinks that we should use the tax system to compel ourselves to pay otherwise-unwilling others to produce offspring who will grow up and finance our retirement. Wouldn't it be easier if we just saved our own money for retirement or, if that is too hard, increase current Social Security taxes and future payouts? Why this complicated business of bringing into existence an entire generation of workers to serve as a vehicle for transferring our money from our current selves to our future selves?
To be sure, it's possible that we would all benefit if the American population grew. Whether we would is a very tricky question that I won't try to answer, but if so, a better way of populating the land is to admit migrants instead of creating otherwise-unwanted persons by subsidizing childbirth. Paying people to have more babies doesn't seem reasonable when there are so many millions clamoring to get in.
I can't help thinking that Doug's idea that being pro-family means being pro-reproduction reflects an instinctive effort to shore up a social conservative philosophy under assault by our rapidly changing mores. Suppose Americans come to approve of gay marriage and to treat it the same as heterosexual marriage. What becomes of "family values," once such a politically potent slogan? Republican Party strategists must be scratching their heads. If family values can no longer be against homosexuality, what are they against? Single people? Premarital sex? Here's a prediction: The family values debate of the future will pit gays and straights who think everyone should get married and have children against gays and straights who think that marriage is a stodgy bourgeois construct designed to channel the revolutionary energy of sexuality into diaper changing and carpool planning while the planet chokes on the greenhouse-gas emissions of the multiplying hordes.
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Holidays like Memorial Day are times for families to gather, and my married daughter, Katherine, a deputy county counsel for a Southern California county government, shared her reflections as a citizen and spouse upon the California Supreme Court's recent decision in favor of same-sex marriage.
Katherine astutely observed that one salutary byproduct of the decision would be to prompt the government to re-examine whether there are adequate existing incentives to have and rear children. Drawing comparison with practices in Europe, Katherine speculated that existing, marriage benefits in the United States might be better directed to and augmented for those same-sex or traditional couples who willingly assume the opportunity costs associated with having and rearing children, as opposed to those who don't.
As an aside, while we did not undertake a macroassessment of the dollar value of direct U.S. "marriage benefits," they do not seem to be overwhelming; for example, if a couple has disparate incomes, filing jointly is usually a benefit, but because of tax brackets, couples with high incomes may still be penalized; there is also a spousal exemption from estate tax, and of course, modest Social Security and Medicare spousal benefits. The benefits available to married employees (e.g., health and life insurance and retirement plan contributions) and the nontaxability or favored tax treatment of those benefits may be the most significant indirect economic benefit for married couples with or without children. There are few government or employer child allowances for children comparable to those found in other countries (see below).
It is well-known that falling birthrates threaten to undermine the economies and social stability across much of an aging Europe. Katherine's father (me) thought procreation one of the most plausible state reasons for skepticism toward a public affirmation of same-sex marriage. The argument had a rational but not compelling basis because of the obvious imperfect fit between marriage and procreation (e.g., elderly and infertile couples). The fact that our state Supreme Court has now reached the conclusion that a rational basis is insufficient to justify the traditional definition of marriage does not mean that the state interest in fertility and responsible parenting has disappeared.
Since this concern is even greater in Europe, it is reasonable, as Katherine counseled, to inquire as to thinking and experience in foreign venue. Consider: France. Until recently, French fertility rates had the same downward slope as the rest of Eastern and Western Europe, but today its fertility rates are increasing. In fact, France now has the second-highest fertility rate in Europe—1.94 children born per woman, exceeded slightly by Ireland's rate of 1.99. The U.S. fertility rate, by comparison, is 2.01 children. This has made France the subject of considerable study by officials from Japan, Thailand, and Germany, all of which are facing the prospect of dropping off a steeper demographic cliff.
What accounts for France's increased population? While it might be the romantic nature of Frenchmen and the historic connection to Catholicism, it is more traceable to some rather substantial subsidies for children and families paid by the French government. For example, the government provides reimbursement for child-care costs for mothers of toddlers up to the age of 3 and free child care from age 3 to kindergarten. The Washington Post reported that a new law "provides greater maternity leave benefits, tax credits and other incentives for families who have a third child. During a year-long leave after the birth of the third child, mothers will receive $960 a month from the government, twice the allowance for the second child."
While some of these allowances are progressive and aimed at low-income families, many are available to all, recognition that France better understands than the United States how it is discriminatory to make women choose between career and motherhood. Moreover, "French law [allows women] to opt not to work or to work part time until her child is 3 years old—and her full-time job will be guaranteed when she returns."
In sum, the French tax and economic system provides the following benefits for families:
- generous child allowances
- subsidized preschool and daycare
- substantial maternity leave and right of return
- tax benefits for transportation and some family purchases
- subsidies for in-home care
- government-provided recreation programs
- a private market that responds with services and hours of operation aimed at meeting working family needs, like, for example, pediatricians who make home visits
- the well-known French extended (36 paid day) vacation.
So, the next time you hear some U.S. official boasting about "freedom fries" rather than "French fries," feel free to tell them they have some ‘splainin to do. America and France may both extol family values, but France (and a number of other European countries as well) also values family in the way hard-headed economists understand.
In significant part, avoiding stigmatic harm to same-sex families prompted the inclusionary ruling by the California Supreme Court. In the court's words, "the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own—and, if the couple chooses, to raise children within that family—constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society."
The new importance of not drawing marital distinctions on the basis of sexual orientation should not obscure the equal importance of specially acknowledging the good to society that natural or adoptive parents provide—whatever orientation prompted them to come together.
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Diane makes an excellent point that no one appears upset with the D.C. Circuit's reliance on foreign practices in the recent currency case.
In my view, the lack of reaction helps to confirm a theory I offered in a blog post in 2005 in response to an essay on the topic of citing foreign law by our own Deb Pearlstein: The opposition to foreign law isn't really opposition to foreign law per se, but rather opposition to citing sources and making arguments that clearly take sides in the culture wars. Here's what I wrote on the topic back then:
The real issue isn't sovereignty, but the culture wars. The Supreme Court's citations to foreign law have appeared in highly controversial cases at the heart of a national sociopolitical divide between (for lack of better labels) social conservativism and modern liberalism. The kinds of foreign countries that a Supreme Court Justice might know best mostly don't share this sociopolitical divide: in those countries, and especially their court systems, the views of modern liberalism for the most part have won out. In this environment, stressing similarities with foreign court decisions can seem a lot like taking sides in the culture wars.
When a Supreme Court opinion echoes a side in the culture wars, the other side naturally gets very upset. Witness the very strong reaction from pro-choice commentators to Justice Kennedy's opinion in Gonzales v. Carhart in 2007, which at times spoke about abortion using language and arguments from the pro-life side of the debate. The angry reaction to Kennedy's language in Carhart was quite similar to the angry reaction from conservatives after Kennedy cited foreign law in cases like Lawrence and Roper.
By contrast, the culture wars weren't in play in the D.C. Circuit currency case. There isn't a progressive or socially conservative approach to currency size. Sometimes a dollar bill is just a dollar bill. I think that goes a long way toward explaining why no one seems to be upset with that part of the opinion (in addition to the fact that the opinion was statutory, not constitutional—presumably that helps).
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It was not the court's 2-1 holding that, by refusing to design and issue paper money so that visually impaired persons can readily distinguish among denominations, the U.S. Treasury Department violated this statute:
No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency. ...
What was striking, rather, was that the court based its conclusion that Treasury had not made requisite accommodations on the fact that other countries had made such accommodations. "Of the 171 authorities issuing currency," Judge
Judith W. Rogers wrote (Page 8), referring to a 1995 report, "only the United States prints bills that are identical in size and color in all denominations." She noted that Canada adopted accommodations in 1995, adding that such accommodations are part of the
euro currency adopted in 2002. Judge
A. Raymond Randolph dissented on the ground that the interlocutory decision was premature. His discussion also accepted foreign examples as relevant points of comparison—as did media accounts of the decision (
here and
here).
The case seems a classic example of how consultation of foreign practice may aid interpretation of U.S. law—the "comparable questions" example about which I've written
here (Pages 1340-41) and
here (Pages 605-06). Given objections to foreign consultation in other contexts, the fact that judicial use of a foreign yardstick in this case went unremarked is itself worthy of remark.
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The current Bush administration defense of its Terrorist Surveillance Program, known to some as the illegal domestic spying program, leans heavily for its legal justifiation on the Authorization To Use Military Force, which was passed right after 9/11. The argument is that the AUMF is a later-enacted, more specific measure, and that it therefore supersedes the more general and earlier adopted Foreign Intelligence Surveillance Act. By this means, presto, the AUMF authorized warrantless wiretapping consistent with the terms of that later-enacted statute. Many in Congress are already on record saying that they never intended the AUMF to have that consequence and that evidence of legislative intention has bolstered arguments by many opponents of the program that the administration's statutory claim is risible. But now this recent disclosure reinforces that judgment. It indicates that the Bush administration lawyers who were around when the AUMF was negotiated also did not think the AUMF had that consequence. Their initial theory, the new disclosure indicates, was that, even aside from their broad views about the president's power as commander in chief to override conflicting statutes, FISA itself contained an implied exception for the president to do what needed to be done. The AUMF argument, then, was something that the administration came up only with much later. But if neither the congressional leaders nor the Bush administration lawyers who actually negotiated the AUMF's passage thought that vaguely worded measure sufficed to provide authority for warrantless wiretapping, then what exactly is the reason to think that the best reading of that statute is the one that is now being pushed by the administration? After all, it's one thing to contend that a vague, later-enacted statute supersedes an earlier one that is clear. It's quite another to argue that a later-adopted interpretation of that same statute should supersede the original one.
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After all, legislation is property itself. Or so suggests the Oregon Senate.
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Deborah, I too get the sense (from gay service members who have recently left the military) that "don't ask, don't tell" is generally disfavored by a broad segment of the military community. And I would be delighted for the Supreme Court to use this context as an occasion to rethink its stance on military deference if or when the case arrives there. But here is why I remain pessimistic.
I don't think the detainee cases are going to revise the court's stance on military deference in the "don't ask, don't tell" context. First, I think the detainee cases themselves exhibit a not insignificant amount of such deference. Second, like you, I think the DADT cases will cause to the court to look at cases involving the civil rights of service members, not the civil rights of detainees. Third, I think that if the court considers DADT, it will at most apply rational basis "with bite" (either under Lawrence v. Texas, which I take to be a rational-basis-with-bite case in the rights realm, or under Romer v. Evans, which could be read as a rational-basis-with-bite case in the classification realm).
The only Supreme Court equal-protection case I know where the plaintiff prevailed against the military is Frontiero v. Richardson (1973), where Sharron Frontiero successfully challenged a benefits scheme that facially discriminated on the basis of sex. That case is easily distinguished on the ground that it did not concern a core military function. In cases that did involve national security, military readiness, or unit cohesion, the court has been extraordinarily deferential, as I stated in my earlier post. Indeed, Rostker v. Goldberg (1981), which upheld the male-only draft, is also generically cited for the proposition that "judicial deference to ... congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged."
It's worth dwelling on the sex discrimination context here. (Race and national origin are not going to be as probative, because the court will be uncomfortable citing Korematsu for military deference and because the racial integration of the armed forces was accomplished by Truman's executive order rather than through a court decision.) In 1981, when Rostker was decided, sex-based classifications already drew intermediate scrutiny under Craig v. Boren (1976). As Cass Sunstein has noted, even before United States v. Virginia (1996), intermediate scrutiny was a lot closer to strict scrutiny than it was to rational basis review. As a purely analytic matter, it seems that if military deference allows congressional legislation to survive intermediate scrutiny, it would a fortiori allow congressional legislation to survive the rational-basis-with-bite the court would apply under Lawrence or Romer.
As for the effect of a possible amicus brief from retired generals, I'm also not sanguine about the weight the court would give to such a brief, even if it came into existence. Some of the most visible retired generals, such as H. Norman Schwartzkopf or Colin Powell, testified in favor of DADT. So, they would have to have George Wallace moments to participate in such a brief. Moreover, even if such a brief were filed, I doubt the military's green brief would be as influential here as its brief allegedly was in Grutter v. Bollinger. In Grutter, the military brief cut for the court's inclination to defer to educational institutions; here, the military brief would cut against the court's inclination to defer to the political branches. More importantly, it would not just be the "civilian executive" (as you posit) defending the DADT policy, but also Congress. One of the awful things about DADT is that, unlike the prior 1981 executive order governing gays in the military, it is a joint creation of congressional legislation and executive regulation. And so one could argue that not only Article II military deference to the executive, but also Article I deference to the Congress, would be due from the court.
Don't get me wrong-I've written at length about the injustice of this policy. But unless the court revisits its military deference doctrine, the solution here is much more likely to be legislative repeal than judicial invalidation. Opponents of the policy should allocate their resources accordingly.
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Phil, I don't understand your post's statement about how the Court of Appeals for the Armed Forces in United States v. Marcum didn't "cite Bowers v. Hardwick and the illegality of homosexuality per se." This implies that the Marcum court could properly have cited Bowers but decided not to do so. But Marcum could not have properly cited Bowers, as Marcum (2004) occurred after Lawrence v. Texas (2003), which explicitly overruled Bowers. What am I missing?
The dominant note here, though, is one of agreement. United States v. Marcum is indeed a hopeful sign of how Lawrence could be applied. At the risk of stating the obvious, no opponent of "don't ask, don't tell" I've ever encountered disagrees with the importance of unit cohesion in the military. It's just that we, like you, don't think that having service members who engage in private adult consensual homosexual conduct in and of itself is going to destroy unit cohesion, as the experience of other countries (Israel, Canada, etc.) has suggested.
Indeed, one of the most frustrating things the military and Congress has done is to predicate their policy on the empirical claim that openly gay service members destroy unit cohesion without permitting that empirical claim to be tested. As Jennifer Gerarda Brown has argued, even one regiment integrated on the basis of orientation would shed some light on this question, even if the United States military eels itself to be so exceptional that the experience of military organizations in other countries and quasi-military organizations in our own is insufficient.
Equally important here is that Lawrence not be read too broadly to protect sexual conduct that the opinion itself said should not be protected. It would be a tragedy if Lawrence were improperly read to protect nonconsensual sexual activity (like rape or sexual harassment), whether that activity was cross-sex or same-sex in nature, or whether it occurred inside or outside the military context. Marcum's three-part inquiry recognizes this as well:
First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?
In some sense, this language just makes explicit what all lower courts must do anyway, which is to apply the Supreme Court's precedent with adjustments for the fact that the precedent was decided outside the military context. But its explicit statement is helpful, especially as it lends credibility to the results in these cases, which, as you say, are not anti-gay.
The final great thing about Marcum is how much the 9th Circuit relied on it. We see Article III court-Article I court convergence here, as the Witt panel heavily relies on Marcum as persuasive authority. So, why am I so pessimistic? For more, see my response to Deborah.
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Good point, Eric, I had confused the respondents who had said they were "unfavorable" toward a justice with those who were "not sure," and it would be the latter group that would contain most folks who don't know any justices. The former group might contain people who couldn't produce justices on their own but were still willing to opine on them once given their names, but even if so, I see no reason to believe that those people would be less favorable to the justice they were asked to evaluate. I also like Dahlia's point that justices who are more visible as individuals tend to be more disliked. Is the lesson of this that the justices should "hand up" their Delphic pronouncements from a hole in New Hampshire?
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We have previously noted how the Supreme Court might be deploying the facial/as-applied distinction to reach minimal levels of consensus that would otherwise not be possible because of the ideological differences on the court. One prominent example was the Supreme Court's upholding of the federal partial-birth abortion ban on facial grounds in Gonzales v. Carhart. Consensus on the Supreme Court does not mean the division in the universe disappears, however. It is simply shifted back down the judicial hierarchy to the appellate bench. Thus, in Richmond Medical Center v. Herring, on remand to the 4th Circuit in light of Carhart, a 2-1 panel led by Judge Michael invalidated the Virginia partial-birth infanticide act on its face.
Pursuing a facial challenge in the lower court may seem contrary to the Supreme Court's preference for as-applied challenges, but the two-judge majority reasoned that the high court's preference for as-applied adjudication exists only in the partial-birth abortion context with respect to the need for a health exception and not for any consideration of the definitional scope of a statute. That is debatable, but dicing the jurisprudence in this way, the majority believed the Virginia act overbroad because they asserted it would impose criminal liability on a doctor for accidentally performing a partial-birth procedure when a more typical dissection procedure had been intended. Judge Niemeyer vigorously dissented on this point of statutory construction pointing to a mens rea requirement that was identical to the federal statute and most assuredly preclusive of accidental criminal liability.
Putting aside the statutory interpretation question, it will be interesting to see if and when the litigants pursue a petition for certiorari, assuming an en banc denial, whether the high court will view this as defiance of its judgment in Carhart and wade back into this contentious subject. If the justices pass, the case illustrates how thin the consensus achieved by the facial/as applied distinction. Indeed, some would contend that if the lower courts are permitted to disregard Supreme Court rulings in this fashion, the general public has been misled into thinking that abortion is subject to limitation, when it is not. All the more reason to believe that abortion is none of the government's business, and the sooner the people revoke its delegated authority under the 10th Amendment to say that neither federal nor state governments should address this topic, the better.
In the meantime, even assuming a facial challenge was appropriately considered by the 4th Circuit, it should be noted that the panel was doubly defiant in rejecting the traditional Salerno standard of facial challenge. That standard is a rigorous one, requiring a showing by the challenger of no conceivable constitutional application of the statute. By contrast, the specially crafted abortion facial challenge standard fashioned in Casey, but seemingly frowned upon in Carhart, of requiring a challenger to an abortion statute merely to show that a significant fraction of women would be unduly burdened is a standard so easily met that virtually no abortion restriction is capable of meeting it.
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I'm not sure why the inconsistency noted by Diane between the Findlaw and Rasmussen poll favors the Findlaw results. It could be that Rasmussen is right and Findlaw is wrong. A possible (partial) explanation for the inconsistency: Findlaw polls "American adults," while Rasmussen polls "likely voters." Typically, 40 percent to 50 percent of eligible voters vote in presidential elections; if "likely voters" is a subset of eligible voters, and both are more informed than "American adults" in general, then we might conclude that Rasmussen surveyed people who are more likely to be knowledgeable about public affairs, including the identities of Supreme Court justices. The puzzle, then, is why, within this subset of Americans with more information, people have favorable attitudes about the court and unfavorable attitudes about the individual justices. (The Rasmussen results also suggest, consistent with Findlaw, that substantial numbers of likely voters don't know or have no opinion, of course; but that doesn't address the puzzle, either.) I do not understand how the relative invisibility of the justices on the court explains the attitudes of those who do in fact see them.
However, I like Dahlia's hypothesis: Americans believe that the court has a valuable institutional role, but they resent the fact that these nine people exercise so much power over them. The more that these individuals have distinct personalities, flaws, quirks, recognizable ambitions, and so forth—the more they seem like ordinary human beings rather than disembodied spirits—the more difficult it is to acknowledge their exalted status in a democracy where authority is supposed to flow from the people. Perhaps judges, like priests, receive power on the condition that they withdraw from the world and submerge their identities in a public institution, and people sense and resent that some of the justices are violating their side of the bargain. Why didn't the oracle at Delphi write her memoirs or a how-to-be-a-supplicant book? Perhaps she better understood the political psychology of her position? An ironic twist: Are the justices who have made themselves more publicly accessible driven by democratic instincts that are inconsistent with the premises of their office?
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I have a slightly different hypothesis for Eric and the new Rasmussen poll. Eric is right to point to the odd disjunction between favorable institutional ratings and the lame reviews for individual justices. But the poll also suggests something fairly radical for those of us—um, let’s call them “me”—who’ve been urging the justices toward greater openness and transparency. Because a look at the individual rankings by justice suggests that the justices who have attempted to use the media to humanize and personalize the court have somehow achieved precisely the opposite effect. The justices with the highest unfavorable ratings here are the ones who have most avidly courted the public. Whereas the justices who have kept on keeping on under the radar remain unknown, but un-hated.
So, for instance, whose individual ratings are most unfavorable? The best known justice, Clarence Thomas, was the least-liked. Some 38 percent of respondents viewed him favorably, and 50 percent rated him unfavorably. Maybe it’s a coincidence that he was also the recipient of the most personal publicity this year, following a searing autobiography and a round of television appearances. Who has the next highest unfavorables? Antonin Scalia at 40 percent. Who’s been all over the media like Cheez Whiz on toast? Antonin Scalia. I don’t think this means Americans dislike originalists, by the way. I think it may mean, as Eric suggests, that we may prefer our jurists to be oracular, silent, and holed up in New Hampshire.
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I agree that much of the Rasmussen poll puzzle presented by Eric is solved by the Findlaw survey results presented by Diane. I take Eric’s puzzle to be why Americans rate the Supreme Court more highly than its constituent members (especially when we suspect that the Congress is not necessarily more highly rated than its individual members). I take Diane’s solution to be that 57 percent of Americans can’t name a single member of the Court (especially when we suspect that many more Americans could name a member of Congress). The remaining question is why the individuals who constitute these two bodies differ so much in their visibility as individuals. After all, it would seem that nine individuals might be more visible than 535 individuals, precisely because one could keep track of the players (as many lawyers do). The answer is both structural and, to a certain extent, volitional.
Certain structural features of the Supreme Court make it less likely to be viewed as the sum of its parts. Most obviously, members of the Court have life tenure, which is to say they are not constantly up for re-election. This means that the greatest publicity most Justices get in their careers is during their confirmation hearings. It is no surprise that, according to the Findlaw survey, Justice Sandra Day O’Connor is the Justice most Americans (27 percent) could name, while Justice Clarence Thomas (21 percent) placed second. Justice O’Connor was extremely visible during her confirmation proceedings because of her gender; Justice Thomas was extremely visible during his because of his race and because of the Anita Hill scandal. The Justices whose confirmation hearings were less memorable tended to be less well remembered overall: Only 3 percent of Americans could name Justices Stephen Breyer or John Paul Stevens.
It should also be noted that there are times when members of the Court exercise their agency to dissolve into the immortal corporate entity known as “the Court.” Chief Justice John Marshall, for instance, not only persuaded his colleagues to depart from the English practice under which each Justice issued a separate opinion, but also—with more limited success—sought to have the Court speak with outward unanimity. Even in modern times, when unanimity is the exception rather than the rule, the exceptions are important. Chief Justice Earl Warren went out of his way to get a unanimous opinion in Brown v. Board of Education—visiting Justice Robert Jackson in his hospital room to persuade him to join the majority opinion and telling Justice Stanley Reed that Reed, as a Southerner, would give too much fodder to segregationists if he dissented. And in the years following Brown, the Court extended its unanimous holding that “separate educational facilities are inherently unequal” to public transportation and recreational facilities through “per curiam” opinions that were, literally, “for the Court.”
For these structural and volitional reasons, individuals on the Court are much less likely to be visible than individuals in Congress. Indeed, the relative invisibility of the Justices may arise in part because of, rather than in spite of, their small numbers. Nine is a number that has the special property of being greater than one but fewer than 535. If there were only one member of the Supreme Court, I would be more surprised if the majority of Americans did not know the name of that Justice (Chief Justice?). Similarly, if the Supreme Court were a fifty-plus person body like Harry Potter’s Wizengamot or a 535-member body like Congress, I would expect more people to have heard of an individual Justice. (Let us pray more Americans can name a current Supreme Court Justice than can name a member of the Wizengamot who was seated during Harry Potter’s hearing in Book 5.) One could posit, then, that individual anonymity for those who belong to famous institutions is a bell curve, with middle numbers assuring greater anonymity for the individual than larger or smaller ones. The members of a nine-member Court may achieve anonymity because they can speak as one person without being one person.
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The Rasmussen poll's (un)favorability ratings for individual Supreme Court justices surely intrigue. But how can they be squared with repeated polls indicating Americans don't even know the names of the nine folks on the court?
Consider FindLaw's December 2005 "Supreme Court Awareness Survey," which found that "only 43 percent of American adults can name at least one justice who is currently serving on the nation's highest court," and that fully 57 percent of Americans "can't name any current U.S. Supreme Court justices."
Most-named in that polling of 1,000 Americans was the now-retired Sandra Day O'Connor; at 27 percent, she placed six points ahead of the second-place justice, Clarence Thomas. Notwithstanding that the confirmation hearings of Chief Justice John G. Roberts Jr. had taken place just a couple of months earlier, he placed a distant third, at 16 percent. The rest were named as follows: Antonin Scalia, 13 percent; Ruth Bader Ginsburg, 12 percent; Anthony M. Kennedy, 7 percent; David H. Souter, 5 percent; and Stephen G. Breyer and John Paul Stevens, tied at 3 percent.
These latter numbers seem entirely plausible. And that calls into question the Rasmussen poll. Let's take Breyer as an example. If only a very small handful of Americans is even aware that someone bearing his name sits on the Supreme Court, what can it possibly mean that, as Rasmussen reports, Breyer has a favorability rating of 18 percent, 10 points below his unfavorability rating of 28 percent?
The most significant numbers in Rasmussen's poll? Twenty-nine to 54. That's the percentage range of persons surveyed who are willing to admit that, even when supplied the name of an individual justice, that they simply haven't a clue what to think about her or him.
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Kenji's question about whether the Supreme Court would ever overturn the military's current "don't ask, don't tell" (DADT) policy about homosexuality raises all kinds of interesting questions—not the least of which, as Phil's response suggests, is about the military itself.
On that front, Phil's notes about the recent treatment of these cases by the CAAF are arguably consistent with a series of recent conversations I've had with experts in civilian-military relations (civilians and military). Although our discussions were principally on other topics, all managed to convey the sense in passing that the existence of gay soldiers was increasingly a non-issue for current troops compared with where matters stood 15 years ago. It wasn't entirely clear whether this perceived shift was being driven more by raw security need (we're in no position to be firing any of the few Arabic-speaking officers we have), or by evolving social sensibilities, or by some combination of the two. But I came away with the strong impression that the military, if left to its own devices, would soon be content to welcome a post-DADT world. Does this seem plausible, Phil, or am I just encountering an unusual sample of views?
And then there's the question of what judicial deference to the military looks like in a post-Hamdi/Rasul/Hamdan world. That is, a world in which it's not at all clear that old models of judicial deference to policies involving the military apply. My first instinct is to agree with Phil and Kenji—even in the current universe, there's a difference (constitutional, doctrinal, and practical) between military policies that regulate military members themselves and military policies that affect civilians in some way.
But let's say, at least for the sake of argument, that the uniformed military itself decides DADT is a terrible policy—hard to apply, hard to enforce, and ultimately counterproductive to the maintenance of an effective force. And let's say, too, that a group of distinguished retired generals files an amicus brief with the court arguing as much (not unlike, for example, the brief filed by military leaders in the 2003 affirmative action case, Grutter v. Bollinger—a brief Justice O'Connor, among others, found worthy of citation). In this scenario, the court is faced with a civilian executive (presumably) defending the policy and at least some fraction of the expert military community (the only fraction who can speak independently, more or less) arguing the opposite. Is it as clear how the court would come down then? Maybe so. Still, I'd be interested to know whether you guys think a division between the civilian leadership and the uniformed military would make any difference in the court's approach to this particular constitutional question.
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Here are some odd poll results from Rasmussen Reports. Americans think that the Supreme Court does a good job but that the Supreme Court justices do a bad job.
For the court as a whole, 41 percent of voters rated the Court good or excellent; 19 percent rated it poor.
For the individual justices:
Thomas: 38 percent favorable, 50 percent unfavorable
Ginsburg: 36 percent favorable, 35 percent unfavorable
Alito: 26 percent favorable, 38 percent unfavorable
Roberts: 26 percent favorable, 30 percent unfavorable
Scalia: 27 percent favorable, 40 percent unfavorable
Stevens: 17 percent favorable, 30 percent unfavorable
Kennedy: 25 percent favorable, 33 percent unfavorable
Breyer: 18 percent favorable, 28 percent unfavorable
Souter: 16 percent favorable, 31 percent unfavorable
So, except for Ginsburg, all the ratings are negative; and Ginsburg herself hardly receives much of an endorsement. Meanwhile, Congress receives 13 percent good or excellent ratings, yet I believe that voters typically give high approval ratings to their own representatives. Do voters realize that these institutions are composed of people? Maybe when voters rate the court, they unconsciously compare it to Congress and the presidency, but when they rate individual justices, they compare them to some imagined ideal of what a Supreme Court justice does or they recall some unfavorable story about the justice's confirmation hearings or out-of-court activities.
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Gerken Opening Post (Round 2)
Yesterday Kenji Yoshino and I debated whether, as a purely predictive matter, liberty or equality offers the more promising framework for litigating gay rights claims (our posts are here and here, with short essays on the topic here and here). Today I want to address whether there is a normative reason to prefer one strategy over the other in thinking about these questions, another point of disagreement between us. I must confess that here I am more ambivalent about which paradigm is more attractive as a normative matter, in large part because (as Kenji and I have both remarked) the two paradigms are necessarily intertwined. Nonetheless, given the current legal landscape, I mildly favor equality over liberty because it comes closer to capturing what we are actually fighting about. For the full opening post, click here.
Yoshino Response (Round 2)
It's always a dangerous thing to disagree with Heather, as I have learned over half a lifetime. So, here I am glad to see our disagreement is narrower than I thought. I do normatively endorse the Lawrence tactic of "leading with liberty." But I emphasize that I do so with two significant caveats. First, equality claims can and indeed must be made outside the courts by entities more institutionally competent to make them. Second, equality claims should still find their way into Supreme Court opinions, but under the guise of defining the metes and bounds of the liberty claim at issue.
Both the glory and the bane of the courts in this country is that they are generally expected to give reasons for their decisions. But it is very hard to give principled reasons for why one group is more worthy of judicial solicitude than another. The court's most famous formulation is that "discrete and insular" minorities deserve protection. But as my colleague Bruce Ackerman argued decades ago, it may in fact be "anonymous and diffuse" minorities who have a harder time being heard in the political process. Other formulations, like those that focus on immutability or political powerlessness, are similarly unhelpful. Few would say that the capacity of religionists to convert means they are less vulnerable to discrimination. And a group must have an enormous amount of political power before it can be recognized as politically powerless by the court.
I take Heather to say that past practice has shown that the court can make more specific distinctions in the equality context than in the liberty context, maintaining, for instance, that "certain intimate conduct" is necessarily less specific than "separate ... [is] inherently unequal." Here I disagree. The quotation from Brown is that "separate educational facilities are inherently unequal," suggesting that the court is trying to put domain-based limitations on its equality principle. That cuts both ways—it cuts for Heather because it's more specific even than her quotation, but it cuts for me because it suggests that the court will have to struggle (all the way through the Johnson v. California case in 2005) to figure out to the domains beyond education for which this principle holds. More importantly, even if we cash out the principle as "separate ... [is] inherently unequal" across the board for racial classifications, it's hard to export that principle beyond race to contexts such as sex/gender or disability. It's a truism that separate bathrooms for men and women or separate learning environments for individuals with and without learning disabilities are often consistent with equality, if not necessary to it.
Of course, moving from group-based equality claims to universal liberty claims just moves the courts from one slippery slope to another. Instead of the "too many groups" problem, the court must grapple with the "too many rights" problem. But I believe the courts are much more capable of picking and choosing among rights than of picking and choosing among groups. Scholars like Amartya Sen and Martha Nussbaum have generated and defended plausibly finite lists of such rights (what they would call capabilities), but I have yet to see anyone generate and defend a plausibly finite list of groups.
To be clear, the fact that I want the courts to lead with liberty does not mean that other bodies must do so as well. Legislatures don't have to give reasons for what they are doing. If they say discrimination on the basis of age is prohibited but discrimination on the basis of gender identity is not, then that's understood to be just a matter of politics, not a matter of principle. This is the comparative advantage of political bodies and grassroots movements, and this advantage not only should, but must, be used. It would be naive, for instance, to think that the court would ever have heard Lawrence or Lane without a gay rights movement or a disability rights movement.
The last point to be made here is that when the courts internalize the equality claims, this should not be a group-based analysis that they have themselves devised. If that were the case, the liberty claim forwarded by the court would just be a Trojan horse through which the court's own equality claim was smuggled into constitutional jurisprudence. Instead, to take a leaf from theories of dialogic constitutionalism, the courts should look out to the polity to see which groups are seen to be politically powerful enough to command some legislative results or popular sympathy, but not powerful enough that they can do just fine without any judicial solicitude whatsoever.
So, to sum up, everyone should grasp Tribe's point that, despite the doctrinal separation of liberty and equality into different doctrinal categories, these two values are intertwined. We are really talking about a hybrid claim that has aspects of both liberty and equality, a claim which I will call "dignity." Which aspect of the dignity claim should be figure and which should be ground will be in part a matter of institutional competence of the body making the claim. Courts and other reason-giving bodies should lead with liberty. Legislatures, grass-roots movements, and other overtly political bodies have the option of leading with either. But when the courts lead with liberty, they should hear claims of equality that are made in voices not their own. This is the new equal protection.
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Kenji, I, too, think the Supreme Court will likely side with the military in any challenge to "don't ask, don't tell" that percolates up through the courts. The thumb of judicial deference to the military is heavy indeed. Despite what we've seen in the recent terrorism cases (Hamdi, Rasul, and Hamdan), this deference remains strongest on such issues as military manpower, which flow from a specific grant of power to Congress to "raise and support armies."
However, I do think we're seeing a post-Lawrence evolution within military courts on this issue. Over the past few years, a number of military courts have heard criminal cases involving violations of Article 125, the military statute forbidding sodomy. These cases have involved both homosexual and heterosexual conduct, because the statute applies to both. In United States v. Marcum, the Court of Appeals for the Armed Forces (CAAF) affirmed the conviction of an airman for consensual sodomy with a subordinate. In its decision, the court "assume[d] without deciding" that Marcum's sexual acts were legally protected by Lawrence. But rather than cite Bowers v. Hardwick and the illegality of homosexuality per se, the court looked instead to the inappropriateness (in a military context, at least) of sex between subordinates and superiors and the effect of that consensual sex on "good order and discipline."
Similarly, in United States v. Stirewalt, decided in 2004, the CAAF “assume[d] without deciding that [the] conduct [fell] within the liberty interest identified by the Supreme Court” because the conduct occurred in an “off-base apartment” and “in private.” And in United States v. Bullock, the Army Court of Criminal Appeals (which sits below CAAF) overturned a male soldier's guilty plea under Article 125 for consensual oral sodomy with a female soldier. According to a Congressional Research Service report, these cases may "recognize a right to engage in consensual adult sodomy, under principles that may be equally applicable to Article 125 prosecutions targeting homosexual activity."
You're probably wondering why the military bothers to bring any of these sodomy prosecutions at all. Given that there's a war on, you'd think the military has better things to do. After Lawrence, sodomy prosecutions in the military now require sex plus something else—what the Marcum court called "additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest." These prosecutions all involve some aggravating factor above and beyond the sex itself, like fraternization (sex between superiors and subordinates, or peers in some settings), force (actual or constructive), or some other prejudicial effect on military order and discipline. In the post-Lawrence world, I don't think we're likely to see many prosecutions for sodomy per se—only for cases where such aggravating facts are present.
Which is as it should be, I think. The military has a unique need to maintain unit cohesion and morale, one which trumps certain fundamental rights. But, this imperative transcends any line between gay and straight soldiers; heterosexual conduct damages unit cohesion as easily (and much more frequently) than homosexual conduct. Military courts are starting to apply these rules more evenly. I don't know whether this will affect "don't ask, don't tell" in the long run, but it will certainly moderate its effect within the ranks.
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With all this talk of the possibility of Hillary Clinton on the Supreme Court, I'm surprised no one has mentioned the most obvious precedent for it. Not so long ago, a former U.S. senator and a loyal Democrat was confirmed to the Supreme Court. Like Hillary, he was born in the Midwest and had studied law at Yale. Like Hillary, he had been considered a rising Senate star. Like Hillary, he was widely admired for his interpersonal skills.
That justice was, of course, Sherman Minton. (Crickets chirping...)
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There must be something in the water in the West Coast. A few hours ago, the 9th Circuit Court of Appeals (sitting in Seattle) handed down another pro-gay decision in Witt v. Department of the Air Force. Like the California Supreme Court decision issued six days ago, this opinion marks a significant advance for gay rights. In Witt, the court of appeals opened the door for an eventual challenge to the military's "don't ask, don't tell" policy in the U.S. Supreme Court. But the likelihood that the Supreme Court would ever invalidate the policy remains slim.
In Witt, the 9th Circuit considered constitutional challenges to the military's "don't ask, don't tell" policy, which generally separates gays from the military if they engage in homosexual conduct. The federal appellate court found that the district court, which had dismissed all of the plaintiff's claims, had erred with respect to one of them. Specifically, the 9th Circuit stated that the district court had failed adequately to grapple with the plaintiff's claim that the "don't ask, don't tell" policy infringed on her right to sexual intimacy. The 9th Circuit panel elaborated that the Supreme Court had increased protections for that right in the 2003 case of Lawrence v. Texas.
The 9th Circuit didn't strike down the policy, but sent the case back to the district court with instructions to apply the correct standard to the facts. It will be interesting to see what the district court does when it balances this newly elaborated heightened protection for homosexual conduct against the enormous thumb on the scale on the other side called "military deference." There is some chance that both the district court and the 9th Circuit would invalidate "don't ask, don't tell" under this analysis. But if this case made it to the current U.S. Supreme Court, I have little doubt that the court would uphold the constitutionality of "don't ask, don't tell."
The problem here is the precedential landscape relating to military deference. The deference arises because the Constitution gives power over military affairs to Congress (through, for instance, various provisions of Article I, section 8) and to the Executive (through, for instance, Article II's anointment of the president as the commander in chief of the military). This deference has led the Supreme Court to reject civil rights challenges to military policies with almost mechanical consistency. In 1986, the court rejected a rabbi's free exercise challenge to an Air Force regulation that prohibited him from wearing a yarmulke. Similarly, in 1981, the court rejected a sex discrimination challenge to the male-only draft. And of course, in 1944, the Court rejected a race-discrimination challenge to the military's internment of individuals of Japanese descent during World War II.
Don't get me wrong—there are strong structural and textual grounds for why the the judiciary should defer to other branches of government with respect to military affairs. However, here as in the detainee cases, deference should not be a blank check for the political branches. Last time I checked, there was no military exception to the Constitution. But one would not know that by reading most of the race, sex, religion, and (in the lower courts) sexual orientation decisions promulgated by the federal judiciary.
It's great that the 9th Circuit took this stand for at least two reasons. First, its novel pro-gay interpretation of Lawrence can now be used in the 9th Circuit outside of the military context and may persuade other jurisdictions to follow suit. Second, as a matter of principle, it forces the lower court to re-examine a nonsensical and unjust policy. But I'm not holding my breath for the Supreme Court to invalidate "don't ask, don't tell." If we ever get rid of this policy, it will likely be through Congressional repeal, with the court deferring all the way.
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There's no question but that a President Obama would have to find an attractive position for Mrs. Clinton other than the vice presidency. The problem with the vice presidency is, of course, Bill. Absent a Lincolnian desire for a team of rivals, the former president's presence hanging about the West Wing vice-presidential office would greatly complicate executive decision-making.
So some now suggest the Supreme Court. Bracketing the effect on the court of Mrs. Clinton's appointment, the problem with the judicial post is that it doesn't solve Sen. Obama's immediate problem—allowing Mrs. Clinton the opportunity to exit the electoral stage with a prize in hand that reaffirms the achievement of women. It is unseemly to use court appointments quite this brazenly, and the glass ceiling has already shattered upon the O'Connor and Ginsburg heads. Finally, it is not self-evident why Mrs. Clinton would trade life in the highly visible, political lane for the cloister. It would be more likely to suppose that Mrs. Clinton would desire to be Senate majority leader or the secretary of health and human services in order to single-mindedly pursue her health care reform.
That said, a Clinton on the court has been speculated about before. Back when Mrs. Clinton was the likely nominee, I wrote a column for the Wall Street Journal suggesting that were Mrs. Clinton to become president, she herself would have had to extricate her husband from the executive branch and a plausible place to put him might be on the Supreme Court bench.
William Howard Taft found the court far more attractive than the presidency itself. Taft was able to shape not just judicial doctrine, but by virtue of his network of friends as the former chief executive, he had considerable influence over the appointments to not only the Supreme Court but the lower federal courts. Mrs. Clinton would like that, too.
James Andrew Miller, who writes about the possibility of nominating Mrs. Clinton to the High Court in today's Washington Post, suggests that Mrs. Clinton's policy and political perspectives would recommend her strongly to a President Obama. Perhaps. By virtue of Sandra Day O'Connor's retirement and her outspoken advocacy for a female replacement, whether it's McCain or Obama who is the next president, a female nominee for the court is highly likely. While the apointment would not be a "first," a Justice Hillary Clinton would not be without contemporary significance and effect. Her appointment from elective office, in itself, diversifies the bench in ways that others recommend, even as Eric Posner thoughtfully questions whether it is right to see the court as a third policy apparatus, rather than as a body doing narrowly focused legal work.
Mrs. Clinton's far more legally gregarious perspective would be a counterpoint to the Chief Justice's minimalism, and she would likely galvanize the overly hypothetical Breyer/Ginsburg/Souter wing. All pretty exciting for her. All equally frightening for Justices Alito, Thomas, and Scalia. Dizzying for Justice Kennedy.
The GOP, one suspects, will discover newfound respect for the judicial filibuster, which would complicate Mrs. Clinton's confirmation, as Dahlia suggests. But then, will the GOP have 40 seats in the Senate? And who knows what Minority Leader McCain, whose term runs through 2010, might negotiate as part of a reconstituted gang of 14.
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In case you missed what in most news cycles would've been headline news, Defense Secretary Gates told a subcommittee of the Senate appropriations committee yesterday that efforts to close Guantanamo were "at a standstill." CNN quotes Gates testifying: "The brutally frank answer is that we're stuck."
Why? Gates says there are about 70 detainees who the DoD has cleared for release, but their home countries won't take them back, or would take back but then release them (presumably against the DoD's wishes). Other detainees are "ineligible for prosecution" for reasons Gates didn't detail (I have a few guesses). And there's a core (of fewer than a hundred, sounds like) who "can't" be prosecuted but whom Gates sounds very certain are bad guys. He'd like to continue detaining these folks somewhere other than Gitmo, but apparently the Pentagon is having a hard time persuading a state to let them bring these guys into the continental United States.
Could be that the DoD would have more success placing the detainees it is ready to release with home country hosts if we hadn't spent so much time calling these guys the worst of the worst (or otherwise generally making it clear we didn't much care what other countries think). Could also be there'd be more prosecutions if there'd been less abuse. And could especially be that there are federal facilities inside the United States that are under federal control, usable as prisons even if the states would rather not have these guys in their back yards. But recognizing that things are now far worse than they needed to have been doesn't exactly tell us what should happen next. Given the past mistakes (to put it kindly), none of the solutions ahead is going to be ideal.
Gates has been widely credited with being the non-Rumsfeld, and seems genuine in his desire (public and private) to close Gitmo down. But given this bleak testimony, it's hard to imagine any of this getting fixed anytime before 2009.
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I like James Andrew Miller's op-ed arguing that Obama should promise Hillary Clinton a position on the Supreme Court, if only because it lays bare so innocently the popular wisdom about the role of the court in American politics. On this view, the court's legal function is minimal, perhaps zero; it is really a council of elders who evaluate legislation on policy grounds, or a third house of Congress that retains a right to veto legislation enacted by the other two. It is more important for justices to be able to horse-trade than to engage in legal reasoning (one's experience as a judge is "inconsequential"). The Warren Court's greatness is due to the political skills of its leader, an ex-governor rather than a person distinguished by his legal talents.
Can we justify a third house? In some ways, it is just a throwback to the original vision of the Senate, which was supposed to consist of notables, quasi-aristocrats, who were not directly elected but appointed by other politicians (state legislatures) who were able to recognize their status and talents. The Senate would restrain the excesses of the House, whose members were directly elected by the rabble and thus likely to indulge its crazy populist impulses. Democracy is kept in check in order to ensure that democracy prevails, with the elites acting through their agents (talented and successful members of the ruling class) determining when democracy gets out of hand. (Modern constitutional theorists call this activity ensuring that law complies with the "principles" underlying the Constitution.) When senators became subject to popular vote in 1913, the elites lost an important device for protecting their interests; the Supreme Court has filled this vacuum.
It's not a terribly appealing picture, but it may be the system we have. If so, it makes sense to evaluate potential appointees on purely political grounds—what are their policy preferences, how strong are their political skills, do they reflect the interests of an important constituency? If the choice for Obama is obvious, then so is the choice for McCain. Although President Bush does not have high approval ratings at the moment, and his decision to invade Iraq was questionable, he undeniably has significant political skills, and his policy preferences are well-known and appealing to the Republican base. True, Bush has no legal experience, but, if Miller is right, this is at best a minor consideration, and there is no rule that Supreme Court justices must be lawyers, anyway. Justice Clinton or Justice Bush? That's a choice worth pondering.
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A few months ago, my colleague Heather Gerken and I had the pleasure of attending a symposium at the University of Tulsa Law School to honor the work of Laurence Tribe. We both spoke on Tribe's theories of liberty and equality, focusing on the case of gay rights. Following Tribe, we think these two concepts are sufficiently intertwined that it is simplistic to argue for liberty instead of equality, or vice versa. But as we hammered out final versions of our pieces-titled "Larry and Lawrence" (Gerken) and "Tribe" (Yoshino)-we realized we had a productive disagreement about whether the courts should lead with the liberty or the equality argument. Heather favors leading with equality; I favor leading with liberty. We thought it might be productive to have a couple of rounds of that conversation here, especially because the California Supreme Court's marriage case makes both liberty and equality arguments. In Round 1, I will focus on the descriptive claim that the courts will "lead with liberty" in the future, and Heather will respond. In Round 2, Heather will make the normative claim that the courts should "lead with equality," and I will respond. As both of us continue to develop our ideas, we welcome input.
Yoshino opening post (Round 1):
I believe that if the Roberts Court does constitutional civil rights at all, it will lead with liberty rather than equality claims. Because they must give principled reasons for their decisions, the courts are institutionally incompetent to pick and choose among groups, which is what traditional group-based equality analysis requires. As the number of groups in American society proliferates, the courts will therefore be pressed inexorably away from group-based equality claims and toward universal liberty claims.
To support this thesis, I make three moves. First, I make the descriptive claim that the Supreme Court in the past decades has closed three traditional equality doors because it is worried about the slippery slope created by the "too many groups" argument. Second, I argue that even as the Supreme Court has closed these equality doors, it has pushed the liberty door further open to compensate for the foreclosure of these equality claims. Third, I observe that the Supreme Court has often used liberty claims to vindicate equality claims in the past. The Supreme Court, in other words, has always used this strategy but now has greater incentives to deploy it.
Over the past 40 years, the Supreme Court has closed off three forms of relief under the equal protection guarantees of the Fifth and 14th Amendments and the free exercise guarantees of the First and 14th Amendments. It has (1) closed the canon of heightened scrutiny classifications under the equal protection guarantees (as intimated in the 1985 Cleburne case); (2) foreclosed disparate impact causes of action (in the 1976 case of Washington v. Davis and the 1990 case of Employment Division v. Smith); and (3) placed more limitations on what Congress can do using its Section 5 power to enforce the guarantees of the 14th Amendment (in the 1997 case City of Boerne v. Flores).
The court has been admirably clear about why it has done so-it is worried about the "too many groups" problem. The court knows that the moment it grants protections to one group, myriad others will be on its doorstep the next day clamoring for the same protection. Of course, the court has always had the problem. But as American society has become more and more visibly diverse, the court has become more aware of its predicament. So in Cleburne, the Court denied the mentally retarded heightened scrutiny in part because it believed it could not distinguish the claims of other groups, such as "the aging, the disabled, the mentally ill, and the infirm" in a "a principled way." In Smith, the Court refused to grant religious exemptions from rules of general applicability in part because "in a nation as cosmopolitan as ours" the religions would swallow the rule. And in Boerne, the court stated that Congress could not enact the anti-discrimination legislation protecting the disabled under its Section 5 power, because of the "quite prescient" slippery-slope rationale adduced in Cleburne.
If that were the end of the story, the prospects for constitutional civil rights would be dreary. But as the Court has closed these three equality doors, it has pushed a liberty door further open. The dynamic here has been like that of squeezing a balloon, where pinching off equality jurisprudence has caused the civil rights commitments of the court to be pressed over to a collateral area of doctrine. That area of doctrine is the "substantive due process" jurisprudence.
For instance, in the 2003 case of Lawrence v. Texas, the court considered the constitutionality of a Texas statute that prohibited sodomy between people of the same sex. In striking it down, the court could have used an equality claim. Because sexual orientation has never received heightened scrutiny, this would have been a tough sell for the court, notwithstanding the 1996 Romer case. So instead, the court struck down the statute on liberty grounds, stating that it violated the right of every individual to have adult consensual sex in the privacy of his or her home.
In the next term, the court made an analogous move with respect to Congress' Section 5 powers. In Tennessee v. Lane, the court considered whether Congress could force the states to make their courthouses wheelchair accessible. In stating that Congress had this power, the court did not rely on the Congress' power to protect the rights of individuals with disabilities. That move was effectively foreclosed by the University of Alabama v. Garrett case in 2000. So instead, the court stated that Congress had the power to assure that all individuals retained the "right to access the courts."
Two swallows do not a summer make. But if we look back in time, we see that many of the canonical cases decided by the court on liberty grounds had equality undertones. The court decided both Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) on the basis of the right of parents to control the education of their children. But scratch the surface of these liberty cases and it becomes clear that they concerned the rights of national origin and religious minorities. Meyer struck down a statute that prohibited schoolchildren from learning foreign languages like German in the wake of World War I, while Pierce struck down a statute that barred children from attending parochial schools. Buchanan v. Warley, while decided as a case about the right to contract, clearly was focused on the special debilities placed on African-Americans in this area. The contraception cases (Griswold and its progeny), as well as the abortion cases (Roe and its progeny), focus so much on the rights of women that Chief Justice Rehnquist complained in his Roe dissent that it sounded too much like an equal protection decision. Liberty and equality are indeed intertwined, such that cases that seem to be decided on liberty grounds have often had undertones of equality. What has changed is not the strategy but the incentive to use it.
Gerken responds:
I have no quarrels with Kenji's lucid analysis of the doctrine. Nor am I unhappy that the Supreme Court in Lawrence relied on the liberty paradigm; it obviously worked. But I am puzzled by his claim that a liberty framework is the most promising path for litigation going forward because it solves the "too many groups" problem that worries the court. For the full response, click here.
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Jack and Phil: I find the notion of an easy confirmation for the future Justice Hillary Clinton improbable if not impossible for the reasons Jack suggests: The conservative base cares about the judiciary above all. They’d fight even the next moderate, nerdy, and dull nominee to the death. But a lifelong liberal political activist? An effective dealmaker and horse-trader in the model of Bill Brennan or Sandra Day O’Connor? A Clinton?
And given that modern confirmation hearings have everything to do with overturning ancient trash cans, how long would Sen. Clinton’s hearing stretch on? A month? Three? It would certainly be great fun for the folks who believed the Starr Report was a little too thin on the lurid details ...
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Jack, thanks for flagging James Andrew Miller's op-ed recommending Hillary Clinton for SCOTUS. I admit it's an intriguing idea, but I think Miller misses the most important argument for Hillary when he writes, "The fact that she hasn't served on a bench before would be inconsequential, considering her experience in law and in government." In fact, Hillary's political experience would be incredibly valuable on the high court. In many ways, she could be an heir to the legacy of Earl Warren and Sandra Day O'Connor, who came to the court after decades of experience in elected and public office. As you note, this used to be quite commonplace, with many justices coming to the court after a career in elected politics. Their experience in the political branches of the government added to their work on the bench and a valuable understanding of how politics actually works.
Will Hillary be next?
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continue reading at Balkinization ...
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Convictions contributors Dahlia Lithwick and Doug Kmiec took to the airwaves today to discuss the California gay-marriage decision on NPR's On Point program. The show also included Crystal Carreon from the Sacramento Bee; Geoff Kors, executive director of Equality California, a gay rights advocacy group; and Brian Brown, executive director for the California chapter of the National Organization for Marriage. The segment is available online, and you can read more here from last week's discussion in Slate.
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Diane, Adam, I wonder if the difference between you is more about the meaning of the term "lawyer's lawyer" than about Chief Justice Roberts.
As I have heard the term used, a "lawyer's lawyer" is a lawyer whom the top members of the bar see as a top member of the bar. If that's the definition, then I agree with Adam about John Roberts. Roberts was not only a lawyer's lawyer, he probably was the lawyer's lawyer of the Supreme Court bar of his generation. I clerked for Justice Kennedy in OT2003, and Roberts was already a legend as an advocate. People used to say that Waxman and Clement were good, but too bad you missed John Roberts (who by then was already on the D.C. Circuit). According to rumors circulating among the Supreme Court bar, the justices of the Rehnquist Court generally saw him as the finest advocate of his generation.
My sense is that Diane's definition is different. Diane, please correct me if I'm wrong, but my sense is that you see a "lawyer's lawyer" as more of a skilled legal technician who lacks a clear ideological agenda. Under that view, as I understand it, a lawyer's lawyer is someone who is interested in the law as law and is not on any particular ideological "team"—and, perhaps implicitly, would follow that law faithfully without bias if confirmed as a judge. I tend to agree with you that this lack of an agenda is part of the term "judge's judge," but I don't see as implicit in the term "lawyer's lawyer."
I don't know if either definition is necessarily correct or more common. But I wonder if the disagreement between Adam and Diane is mostly about finding the right definition of the term. Also, perhaps it's worth noting that both Roberts and Stevens pass the "lawyer's lawyer" test with flying colors under the first standard, but that there would be sharp ideological divisions today about both Roberts and Stevens under the second one.
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The Justice Department released its inspector general report (PDF) today clearing the FBI of most wrongdoing in connection with the coercive interrogations (read: torture) of prisoners at Guantanamo Bay, Cuba. For the most part, the report concludes that FBI agents did the right thing by objecting to the interrogation methods they saw that were abusive, and that FBI agents did not participate in these questioning sessions. However, the report faults senior leaders at the Justice Department and FBI for not giving clearer guidance to their agents in the field, allowing some special agents to be confused about "how to draw the line between behavior that was 'abusive' or merely harsh, such as the use of loud music and stripping."
According to the Post:
"The FBI could have provided clearer guidance earlier and pressed harder its concerns about detainee abuse by other agencies," Fine said. "But we believe the FBI should be credited for its conduct and professionalism in detainee interrogations in the military zones and in generally avoiding participation in detainee abuse."
Interrogation practices—including the use of dogs, sleep deprivation and simulated drowning or waterboarding—repeatedly created friction between FBI agents and military leaders. FBI Director Robert S. Mueller III has stressed that the bureau prefers to build rapport with detainees as the most effective way of eliciting accurate information from them.
In congressional testimony last month, Mueller hinted that the FBI's hands were tied in part by opinions from the Justice Department's Office of Legal Counsel, which approved several of the coercive interrogation strategies.
Seems to me like it would have been tough for the DoJ and FBI to issue better guidance while this guy was calling the shots. But that's just me.
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Adam, I meant neither to endorse "a longtime practitioner" nor to exclude law professors or sitting judges from consideration for court vacancies. Persons holding any of these positions may qualify as "lawyer's lawyers" or, indeed, "judge's judges."
Fitting those two labels is in part a matter of experience. But it is more importantly a matter of temperament—a matter both of the means a person employs to solve a question of law and the manner in which the person explains that resolution in an opinion. There are longtime practitioners who are not lawyer's lawyers. There are members of the bench who are not judge's judges. There are practitioners who display judicial temperament even though they have never donned black robes. Various law professors fit various categories.
The Stevens example is set forth simply to provide food for thought about what may happen when a president gives certain qualities priority over partisan political concerns.
With regard to your specific references, I am not persuaded that the nomination of John G. Roberts Jr., for whom I have great respect, serves as an equivalent example. His intellect, wit, and dignity indeed are welcome additions to the court. But the man who is now chief justice of the United States served in the executive branch, and that experience alone sets him apart from Stevens. Accounts like those in Jeffrey Toobin's The Nine (2007), moreover, suggest a greater ideological bent than was evident in Roberts' nomination hearings; and correct or not, a sense among some Democrats that there was such a bent no doubt underlay the "nay" votes mentioned in the Los Angeles Times article that spurred this blogthread. (This too sets Roberts apart from Stevens: 1975 predictions by U.S. Rep. Bella Abzug, D-N.Y., and the National Organization for Women that Stevens would do harm to women's rights did not convince a single senator to vote against him.) Finally, not all the chief's opinions have adhered to the "balls and strikes" metaphor he famously pitched when seeking nomination; last term's Seattle School District and this term's Medellín may be said to have set precedent as much or more than they followed it.
Though we may exercise a blogger's prerogative of contributing our two cents, we cannot be certain of what either presumptive presidential nominee will do unless and until he has the power actually to make a judicial selection.
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Diane, we're in full agreement on the point that the nation would benefit from the appointment of a "lawyer's lawyer" to the Supreme Court. While I can think of a number of federal judges (and even a couple of law professors) who I think would do a fine job on the federal bench, I agree that a longtime practitioner would bring a degree of practical judgment and experience that would benefit the court (and the public as it attempts to follow the laws interpreted by the courts).
That said, after reading your post, I'm not sure how Chief Justice Roberts doesn't squarely meet your standard. His lawyering skills were widely admired by the bar; he had no ideological ax to grind; and his tenure on the court has been marked by collegiality, wit, and a refreshing writing style. What more would a "lawyer's lawyer" or "judge's judge" have to do, beyond what Chief Justice Roberts did in his practice and on the federal bench, to satisfy the standard you envision?
And given that John McCain—neither an ideologue nor a reflexive partisan—repeatedly invokes Chief Justice Roberts as one of his ideal judges, isn't there abundant cause to conclude that, if the electors choose McCain, then "the person whom voters entrust with the filling of federal judicial vacancies will give priority not to 'partisan political concerns,' but rather to 'dignity' and 'intellect,' ideally tempered with 'charming wit and sense of humor' "?
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It's disappointing that neither presumptive presidential nominee names John Paul Stevens as the type of justice whom he'd like to nominate to the U.S. Supreme Court.
This is not to say that Stevens, a Republican appointee, belongs in every pantheon of GOP judges. Nor is it to say that Stevens, at times now called the leader of the court's liberal wing, belongs in every Democratic pantheon. It is, rather, to recall that in 1975, a U.S. president did well to select a justice based on legal acumen, with little regard for ideological bent. Stevens was the quintessential post-Watergate appointee. The Chicago native had not been active in partisan politics. His credentials were impeccable. As I've detailed here, he: was awarded the Bronze Star for having helped decipher the Japanese code during World War II; graduated top of his class from Northwestern University School of Law; clerked for Justice Wiley B. Rutledge; had a respected career as a name partner in an antitrust litigation firm; was chief counsel of an investigation that uncovered corruption in Illinois' Supreme Court; and had served on the U.S. Court of Appeals for the 7th Circuit since 1970. Sen. Charles H. Percy, R-Ill., reminded his peers at the 1975 nomination hearings that five years earlier he'd called Stevens "a lawyer's lawyer"; now, he assured them, Stevens was "a judge's judge."
Stevens' positions on issues played little role in his selection. Case in point: Even as Stevens' nomination was under consideration, states were petitioning to lift the death-penalty moratorium in place since Furman v. Georgia (1972). Yet neither President Gerald R. Ford nor any senator asked him his views on capital punishment, publicly or privately. (Stevens—who within months of joining the high court would cast the essential vote in Gregg to allow some revised death-penalty statutes—has said that at the time he did not know how he would answer the question.)
Some of Stevens' opinions have drawn the ire of Democrats on the left, others of Republicans on the right. Yet the Republican president who appointed him wrote in 2005:
... I am prepared to allow history's judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of Justice John Paul Stevens to the U.S. Supreme Court. I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal case and on the constitution's broad grant of regulatory authority to Congress. I include as well my special admiration for his charming wit and sense of humor; as evidence in his dissent in the 1986 commerce clause case of Maine v. Taylor and United States, involving the constitutionality of a Maine statute that broadly restricted any interstate trade of Maine's minnows. In words perhaps somewhat less memorable th[an] "Shouting fire in a crowded theater," Justice Stevens wrote, "There is something fishy about this case."
He has served his nation well, at all times carrying out his judicial duties with dignity, intellect and without partisan political concerns. Justice Stevens has made me, and our fellow citizens, proud of my three decade old decision to appoint him to the Supreme Court. ...
One hopes that the person whom voters entrust with the filling of federal judicial vacancies will give priority not to "partisan political concerns," but rather to "dignity" and "intellect," ideally tempered with "charming wit and sense of humor."
("Continuing" disclaimers, interposed here but not always to be repeated: First, as previously noted here, I had the privilege of serving as a law clerk to Justice Stevens in OT 1988 and am at work on a biography of him. Second, it''s been my privilege to give his campaign volunteer advice on international law and human rights; however, no one has consulted me on judicial selection.)
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I'll get to Phil's McCain-Obama-and-the-courts question in a sec. But I first have to say that while I'm generally a big fan of David Savage's at the L.A. Times, there are parts of this latest piece that sound like they could've been written by Rush Limbaugh.
The McCain-Obama comments reflect a long-standing divide between conservatives and liberals on the role of the courts. Reduced to the simplest terms, conservatives say judges should follow the law, and liberals say they should ensure that justice is done.
Ugh. I appreciate the need to get this complex, age-old debate boiled down to within a journalistic word limit, but there's gotta be a better way. Of course both conservatives and liberals say judges should follow the law. Beyond that, and within the descriptive limits of the stereotyped terms, "conservatives" say that "following the law" means using the fewest possible interpretive clues to figure out what the law means (for statutes, text only; for the Constitution, at best, a guess at what the framers meant in 1789), and as a matter of practice they fill in any remaining areas of uncertainty (of which there are inevitably some in some cases) with broad ideological preferences—about the power of the government, the role of the courts, and the kind of society in which they want to live. "Liberals" believe "following the law" means looking to as many interpretive clues as might reasonably shed light on the text (legislative or other kinds of history, text and textual context, the purpose of the document, etc.). As a matter of practice, they, too, may fill in remaining areas of uncertainty with an equal and opposite set of broad baseline principles, including the principle that judges get to say what the law means.
There's no way around the problem of laws that are sometimes unclear. I think on balance the "liberal" approach to interpretation has a better chance at preserving the idea of "law" as having some sensible and identifiable meaning. But the reality also remains that vast swaths of the law are clear for both liberals and conservatives; that's why, among other things, not every dispute in the United States ends up in court. For those that do, there's also no way around the reality that judges will have baseline structural preferences and preferences about what they think "justice" would require in any given case. But I wouldn't deny (as many conservatives and some liberals do) that such preferences can matter, at least at the margins of judicial decision-making. That's why judges are politically appointed. That's why presidential appointments matter.
So what can we glean about McCain and Obama so far? I'd say that apart from some reassurance that the one reflects most conservative baseline assumptions, and that the other reflects most liberal baseline assumptions, not much. But to my colleagues who've watched this longer than I, I'd be pleased to stand corrected here.
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Professor Weisberg's thoughtful post responding to Megyn Kelly of The O'Reilly Factor on the Fox News Channel nicely illustrates an overlooked means by which Sen. Obama—seeking as our next president to build bridges and unbuild walls (disclosure: I endorsed the senator and give him lots of advice which I hope is helpful to him)—might defuse some of the acrimony that exists surrounding topics such as abortion and same-sex marriage.
While it was Kelly's thesis that it is activist and not in keeping with principles of federalism for state judges to trump the people, it was professor Weisberg's nice counterpoint that as in many claims of activism, whether one favors the state court over the people (Gov. Schwarzenegger's position in opposition to an anticipated November initiative that would overturn the same-sex marriage case) or vice versa depends on whose ox is being gored. It is not really possible to say that one is more in keeping with federalism than another.
But that is not to say that the distinction between the state and the people is unimportant. The phrasing in the 10th Amendment speaks of the "reserved [unenumerated power] to the states respectively, or to the people" for a reason. The phraseology illustrates that while the concept of federalism is typically associated with what is federal (viz. national) vs. what is local, the separate reservation in the 10th Amendment allows the people of a state to deny a delegation of their unenumerated reserved power to their state legislature. Indeed, the people may decide that no government entity—including themselves by initiative or referendum—should take a position on a given subject that has been so reserved.
This avenue for complete neutrality presents a possible common ground to defuse some of the rancor over abortion and same-sex marriage. Theoretically, it would be possible to declare both subjects as presently beyond the competence of government.
The California Supreme Court catches a bit of a glimmer of the potential for using neutrality as a reconciling device when it suggests that the California assembly might decide not to ascribe the sacred word marriage to any state license whether given to a heterosexual or homosexual couple. Rather, California state licenses might be called "civil unions" or "enduring unions," with the sacred affirmation of marriage being entirely reserved to nongovernmental actors to allocate in accordance with particular their religious traditions. Were California to follow that course, religious bodies would presumably then have less basis to argue that the civil law was affirming or honoring a relationship that cuts deeply against the revealed beliefs of those religions.
The same could be true with regard to abortion. Here, the formulation would mean that if Roe were overturned, the matter would not be returned to the states or to the people in their initiative/referenda legislative capacity but would be reserved to the people solely within their own church and family structures. It would be within those nongovernmental communities that the people would decide whether abortion is a matter of individual liberty or the taking of human life. Obviously, as a practical matter, this would leave the abortion decision to a woman and her doctor as Roe itself does, but critically, the law would not then be giving any civil-law approval or constitutional edge favoring one side over the other.
Would such reallocation of authority to the people outside of government be more accommodating of those who presently raise religious objection to abortion? Obviously, it does not put the full force of law behind stopping or curtailing the practice, but then it does not endorse it, either. The law would be entirely silent, leaving the people in their individually and voluntarily chosen communities to decide matters for themselves in accordance with their respective beliefs. That this would not be mere window dressing may be illustrated in the Catholic Church's own teaching, which, of course, is strongly against abortion. While the most preferred Catholic position is a construction of the Constitution that affirms the unalienable right to life for all persons from conception onward in the Declaration of Independence, the specific instruction of the church merely calls for the practice not to be "recognized and respected by civil society and the political authority," and admonishes its own believers to not exercise their free will to procure (or aid the procurement) of abortion.
The possibility of reserving sensitive questions over which the culture is deeply divided, and indeed, with respect to which there is insufficient consensus to justify either a positive law or judicial determination has more salience and potential for bridging even profound disagreement than the obscure 1791 formulation of states rights in the 10th Amendment may at first reveal.
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Robert Weisberg, of Stanford Law School, offers a guest post:
Dahlia Lithwick’s latest column about the California marriage decision shows how the availability of the "activism” trope is more than the intelligence (or other virtues like rationality, sanity, or honesty) of those decrying it can bear. I would add a twist: the conflation of concerns about separation of powers and federalism. On the Bill O’Reilly show the night of the decision, Fox New jurisprude Megyn Kelly first offered a fairly generic denunciation of the decision as matter of constitutional jurisprudence. Then, when asked (by O’Reilly!) whether the decision at least merited respect under the principle of states’ rights (O’Reilly also noted that the state court was mostly Republican appointees), Kelly got agitated and fumed that states’ rights are not about the rights of state judges but the rights of the people. Whatever the mens rea of Ms. Kelly’s rant (see challenged virtues, above), it wonderfully illustrates the power and plasticity of the activism trope. And the focus on California is especially ironic. Here in the Golden State we have a ruling that may last just a few months, given the voters’ penchant for—indeed their addiction to—direct democracy.
We do have an elected legislature here, but California voters love to do the legislative work themselves (both the restoration of the death penalty in the 1970s and the three-strikes law in the 1990s were passed the old-fashioned way in Sacramento but then got enhanced via initiative within one year), and the 50 percent rule applies to initiatives that change the Constitution as well. It is a state where the people seem quite willing to kick Supreme Court justices out of office (see Bird, Reynoso, Grodin over the death penalty in 1986) and, of course, find it easy to kick out a governor for no particular reason except dislike and mild buyers’ remorse. So in the separation-of-powers arena, the fourth branch of self-declared people’s sentiment seems quite able to take care of itself.
Of course, we could also put the problem with this reading of states’ rights in more abstract terms, noting, for example, that the presence of both the Ninth and 10th Amendments in the federal Bill of Rights suggests that in 1791 there was a big difference seen between the autonomy of states and at least one, admittedly vague, version of a residual power of the people. The venerable provenance of federalism in the 18th century is a strange bedfellow to a concern over the phenomenon of judicial review—which was hardly on the minds of the Framers, especially at the state level.
In any event, imagine that the D.C. gun ban had been enacted in a state; the U.S. Supreme Court had upheld it on broad collective rights grounds (contra the likely outcome in Heller), and the state Supreme Court had then struck it down as a violation of the state’s right-to-bear-arms clause: Would the chance of that decision being denounced as activist by pro-gun groups have exceeded zero, or the chance of those groups forbearing from proclaiming it as a vindication of states’ rights less than 100 percent?
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David Savage writes in today's Los Angeles Times about the deep divide between the Obama and McCain camps over what kind of judges should be appointed to serve on federal courts, including the Supreme Court. Savage boils down the issue to this:
Sen. McCain (R-Ariz.), in a speech two weeks ago, echoed the views of conservatives who say "judicial activism" is the central problem facing the judiciary. He called it the "common and systematic abuse ... by an elite group ... we entrust with judicial power." On Thursday, he criticized the California Supreme Court for giving gays and lesbians the right to marry, saying he doesn't "believe judges should be making these decisions."
Sen. Obama (D-Ill.) said he was most concerned about a conservative court that tilted to the side of "the powerful against the powerless," and to corporations and the government against individuals. "What's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves," he said in response to McCain.
* * *
The McCain-Obama comments reflect a long-standing divide between conservatives and liberals on the role of the courts. Reduced to the simplest terms, conservatives say judges should follow the law, and liberals say they should ensure that justice is done.
The McCain campaign is sure to make this a major issue in its campaign because this issue plays well before the conservative base. The tried-and-true Rove formula calls for running on God, gays, and guns, and all three issues strongly correlate with the appointment of conservative judges. Given the California Supreme Court decision last week on gay marriage, the current U.S. Supreme Court case on gun control, and continuing skirmishes over the role of God in government and public life, the GOP will likely turn to this page in the playbook once again. Such is the conclusion of Jeff Toobin in this week's New Yorker: "McCain plans to continue, and perhaps even accelerate, George W. Bush’s conservative counter-revolution at the Supreme Court."
So what about the Democrats? (Disclosure: I support the Obama campaign and have advised it on defense and veterans issues.) I think there may be an opportunity here. Sen. John McCain is an honorable public servant and war hero with great appeal to moderates and independents. To counter that, the Democratic party needs to remind voters that a McCain administration will appoint staunchly Republican judges of the type appointed during the last three Republican administrations. This issue should energize the Democrat base, and it should also give moderates pause before they side with McCain.
It's like the old quip my grandfather used to tell me: "There are only two kinds of judges: Republicans and Democrats." Whom do you want on the bench?
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... there is a Republican core to yesterday's California marriage decision. Not only were three of the four justices in the majority Republican appointees, but they were appointed by either George Deukmejian or Pete Wilson, GOP governors not known for liberal tendencies. (The sole appointee of Gov. Arnold Schwarzenegger was among the three justices, all Republicans, in dissent.)
It should also be noted that all seven have stood election since their appointments. Voters reconfirmed all of them, by margins of 69 percent or higher. That this court voted as it did knowing it must seek ballot approval now and again is nothing to sniff at—this is the same electorate that in 1986 recalled the state chief justice and two associate justices, following a campaign waged by Deukmejian.
Though it is tempting to suggest that the Grand, Old Party is returning to a tradition of privacy vis-à-vis the state—let's not forget that Republican appointees represented five of the seven U.S. Supreme Court Justices in the majority in Roe v. Wade (1973)—it may be premature to make such a claim. Perhaps the ruling says more about "living constitutionalism." Might it be that changes in popular attitudes toward marriage equality helped to embolden four California justices to enforce a rule that seemed to them compelled by proper interpretation of the applicable law, California's Constitution?
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A fairly remarkable fact that has not gotten the attention it deserves:
If I'm not mistaken, of the eight justices in the majorities in Goodridge (Massachusetts) and In re Marriage Cases (California), seven of them are Republican appointees.
And the current Republican governor of California was quick out of the box to say that he respects the court's opinion and does not support the initiative to overturn it this November.
I'll leave it to others to discuss what, if anything, this says about the past or future of the GOP.
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As a matter of law, history, social policy, and faith, it is my view as articulated in a brief I helped draft in the California cases that marriage is properly reserved to a man and a woman. In other words, I lost. That said, the California Supreme Court decision in favor of same-sex marriage in both the majority and dissent is written in reasoned and intelligent voices.
It would be especially worthwhile if the California opinion did not immediately trigger the predictable responses by the contending sides or extended gloating or criticism by those pursuing the presidency. The common good will not be advantaged by either gay euphoria on one side or straight predictions of moral disintegration. Nor will the usual hand-wringing about judicial activism be of much utility.
Sen. Obama might take special care in his assessment of the opinion. He, like the court majority, I am certain believes extending affirmation to same-sex marriage ultimately honors that venerable institution. As such, it would be prudent for Sen. Obama and supporters of same-sex marriage to note that, for the most part, those who opposed that affirmation did so not out of acrimony or dislike, but out of a like appreciation for the family as an irreplaceable cultural building block and often sincere religious belief that deserves respect and accommodation.
So, what did the opinion actually do?
Something Old—Marriage by Any Other Name ...
California's decision to affirm same-sex marriage arguably will not have a dramatic impact within the state itself since the state had already been so generous in its domestic-partnership provisions and in eliminating virtually all forms of employment and housing discrimination. Indeed, the most noticeable impact may be in the usage of the word marriage, though the court puts it more sensitively: "Whether or not the name ‘marriage,' in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect and stature as that accorded to all other officially recognized family relationships." In short, whatever terminology the state fixes upon, it must be extended to same-sex and traditional marriage alike.
Something Borrowed
Perhaps it would be best if the state would forgo using the terminology of marriage altogether and leave that to religious bodies where the institution is accepted as having divine origin and is associated with sacrament or other blessing. In that event, the state license for everyone could be called "civil union" or, as the court suggested, "enduring union," which indeed is the hope of every couple and the genuine work of life-long friendship.
Something New
Analytically, the court is at its strongest in pointing out how the usage of the term marriage for opposite-sex couples exclusively can stigmatize same-sex couples. The court makes an analogy to the separate but equal decisions that preceded Brown v. Board of Education, where, of course, the minority schools were never quite equal. The court writes: "[P]articularly in light of the historic disparagement of and the discrimination against gay persons, there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships ... will cause the new parallel institution that has been made available to those couples to be viewed as of lesser stature than marriage, and in effect, as a mark of second-class citizenship." Poignantly, the court gives emphasis to how the disparity may affect children of gay couples and how privacy can be invaded then in numerous everyday social, employment, and governmental settings in which the individual is asked whether he or she is married or single. An individual who is a domestic partner and who accurately responds to the question for disclosing that status will functionally be disclosing, said the court, his or her homosexual orientation even if that person would not want to make such disclosure in that circumstance, and it is totally irrelevant to the setting of the question.
This is a nice point. It might have been made stronger had the court observed that nomenclature that does not occasion prying into the sexual choices of persons also has the byproduct of not aggravating opposite-sex couples or individuals with explicit sexual identification or discussion of sexual orientation that often seems, and is, out of place in workplace, school, and other public settings.
So, What's the Harm in Same-Sex Marriage?
It is often asked, as Marty's helpful post does, how the acknowledgment of same-sex marriage harms marriage between a man and a woman. The inability to give a simple, secular answer to this explains the California victory in favor of same-sex marriage more than the reasoning of the opinion. That doesn't mean there is not an answer. There is a religious answer, and it is anchored in the creation story recorded in the book of Genesis.
The religious answer has a secular side, but it is less articulable. Traditional marriage has been accepted without argument for so long that the words custom and history substitute for analysis. When a more searching inquiry is made, it is often related to the genuine belief that the institution of marriage and associated natural procreation should be (and has been for millenniums) interrelated and very much worth preserving. The story of the declining populations and cultures of Western Europe is debated but troubling. No one wishes the same for the United States, though it is hard to deny that marriages are occurring later and with less frequency (with a con-commitant rise in cohabitation and its various adverse instabilities and risks for children). A smaller youthful population with a sizable graying demographic has many negative economic and social consequences manifest in everything from what does or does not get accomplished in schools to the coming bankruptcy of the Social Security system to much else that depends on the constant influx of new people, responsibly prepared to take up for the work of citizenship and community.
With that as backdrop, did California actually accomplish anything different than Massachusetts already did several years ago?
Exportable California Licenses Seeding State and Federal Litigation
California's decision is more groundbreaking than that of Massachusetts in two senses: First, Massachusetts decided, for the most part, that its opinion applied only to its own residents. Nonresidents can be married in Massachusetts only if the marriage would not be prohibited in their home states, whereas California has no residency requirement or waiting period, nor does it determine the availability of its own license in relation to whether such license would be permissible elsewhere. Presumably, this will mean a large number of same-sex California licenses being issued to the nonresident visitors, who will then return to sister states requesting recognition of those California licenses. If those requests are denied, litigation similar to that just concluded in California under that state's marriage law will result as well as challenges to state and federal Defense of Marriage Acts.
Sexual Orientation as a Protected Class
Second, the fact that California declared sexual orientation to be a suspect classification will likely put additional pressure on Congress to do the same in the Civil Rights Act. To the extent other state courts follow California's lead, one can anticipate that this state jurisprudence will ultimately come to be reflected in federal jurisprudential thinking as well. Certainly, one can anticipate the decision today being cited as instructive (though clearly not binding, given its exclusive state-law provenance) in challenges to the military's ongoing application of its "don't ask, don't tell" regulation. The end of sexual-orientation discrimination has much to commend it, as again Marty nicely illustrates in his quotation from the opinion, but again, there are interwoven religious beliefs that are not based on stereotype and that do deserve accommodation.
Governor of the People—Well, a Few With Robes at Least
Responding to today's California Supreme Court decision approving same-sex marriage in relation to a November ballot initiative that would declare the opposite, Gov. Arnold Schwarzenegger said:
I respect the court's decision and as governor, I will uphold its ruling. Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.
Depending on your perspective, this may or may not be a profile in courage. Gov. Arnold seemingly reasons that it is more important to secure the four votes of the majority of the California Supreme Court than the approval of the 4,160,706 voters, or its 2008 equivalent, who had approved affirming traditional marriage in 2000 in Proposition 22. The governor's thinking seems a wee bit anti-democratic.
Is there a footnote in Active Liberty that explains this new-found gubernatorial respect for the will of the judges? (Sorry, I couldn't resist a little judicial-activist tweaking.)
The Coming Unconstitutional Constitutional Amendment?
In any event, Gov. Schwarzenegger may not be the only person asserting that there can be an unconstitutional constitutional amendment. The language of the proposed initiative on the ballot in November is virtually identical to the provision of the state family code that was today invalidated. Moreover, the signatures given for this initiative were given prior to the court's decision. Certainly a court that is prepared to declare sexual orientation a suspect class and redefine marriage won't be overly shy about questioning whether the wording of a state constitutional amendment initiative was specific enough to overrule an intervening court determination of this magnitude.
But that's assuming the initiative passes. 2008 is not 2004, and the turnout in November for traditional marriage is no sure bet. Voters attracted to Sen. Obama by and large will be pleased by a today's majority opinion and will be of no mind to approve a state initiative reaffirming traditional marriage.
Something Blue—Will the Outliers Then Be Punished?
Should same-sex marriage and nondiscrimination on the basis of sexual orientation become the norm, as Marty speculates, what will be the impact on religious bodies that sacramentally must decline to conduct same-sex marriages or that cannot under existing religious teaching hire homosexual persons for certain positions such as teacher, athletic coach, or the clergy itself? The Supreme Court's jurisprudence on the Free Exercise Clause is presently insufficient to give any shelter to these practices. Practically, will the existence of religiously affiliated institutions be threatened by the denial of tax exemptions or the denial of access to other public programs on the theory that their practices would then violate public policy? These are real questions that have been aggravated by scholarship and judicial decisions that have allowed or advocated the aggressive exclusion of the Boy Scouts following their successful defense of their right of association before the Supreme Court.
Let History Be Our Guide—At Least As It Applies Against Polygamy and Incestuous Marriage.
There is one anomaly that stands out in the opinion's rejection of history and tradition. The California Supreme Court opined that its approval of same-sex marriage "does not mean that this constitutional right similarly must be understood to extend to polygamists or incestuous relationships." But why not? In rejecting the state's defense of traditional marriage, the court found the historical support for traditional marriage to be of little purchase. Apparently, with respect to polygamy and incest, history counts for a lot. The court asserts that "although the historic disparagement of the discrimination against gay individuals and gay couples clearly is no longer constitutionally permissible, the state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment."
I agree, but wasn't that exactly the state's argument in defense of traditional marriage?
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Today's California Supreme Court decision is certainly momentous and worthy of celebration, for obvious reasons. It will, I think, come to be seen as part of the grand tradition of that court, as exemplified in its bold 1948 decision in Perez v. Sharp, which prompted numerous states to abandon their anti-miscegenation laws, eventually leading to Loving v. Virginia. But wholly apart from the particular holding on same-sex marriage—which is plenty important in and of itself—it strikes me that the most significant legal development in the court's decision is that it is (to my knowledge) the first time any state or federal court of last resort has held that discrimination on the basis of sexual orientation is suspect and thus subject to strict scrutiny under a constitutional equal-protection clause. See Pages 95-101 of the majority opinion.
There is a strong argument, I think, that the particular form of discrimination at issue here would be invalid even if viewed under a more forgiving "rational basis" lens, because there is no noninvidious, legitimate reason for restricting "marriage" to single-sex couples—which was in effect the holding of the Massachusetts court in Goodridge. (See Pages 20-22 of this brief.)
But long after the question of same-sex marriage is considered by other courts, legislatures, and popular referenda—indeed, long after same-sex marriage becomes the norm rather than the exception in the various states—the court's holding today that all discrimination against gays and lesbians is constitutionally suspect is apt to have profound ripple effects across a wide range of different legal contexts. Here's the key, landmark holding:
There is no persuasive basis for applying to statutes that classify persons on the basis of the suspect classification of sexual orientation a standard less rigorous than that applied to statutes that classify on the basis of the suspect classifications of gender, race, or religion. Because sexual orientation, like gender, race, or religion, is a characteristic that frequently has been the basis for biased and improperly stereotypical treatment and that generally bears no relation to an individual’s ability to perform or contribute to society, it is appropriate for courts to evaluate with great care and with considerable skepticism any statute that embodies such a classification. The strict scrutiny standard therefore is applicable to statutes that impose differential treatment on the basis of sexual orientation.
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The California Supreme Court has just announced its decision in the gay-marriage cases, finding that the state marriage laws that "exclude same-sex couples from access to the designation of marriage" are unconstitutional. Opinion is here.
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It's dangerous to try to draw parallels between procedures of the United States and any country, even those of our principal legal progenitor, England. This is surely the case with a civil-law country like France. The
problem is not that the French "don't even use a jury." In point of fact, France does use laypersons as co-fact-finders with professional judges in some felony prosecutions (as do other civil-law systems, as I write on p. 818 & n. 57
here). It's an odd complaint in any event, given that the discussion revolves around commissions that themselves will not use juries.
Perhaps more important is that what is considered a "trial" in civil-law jurisdictions is far different from the American understanding of the term (something the
New York Times reporter glossed over when she referred to a "six-day trial"). The "
procès," the French word closest to
trial, refers not only to the condensed public event that ends in conviction or acquittal but rather to the entire criminal proceeding against the defendant. In this case,
le procès lasted not for a few days in March but rather for many years: All residents of Paris' 19th arrondissement,
M. Benyettou and his six co-defendants were first arrested in 2005, and some have been detained since then. In the interim, their case no doubt worked its way through not-public proceedings before a
juge d'instruction, as is properly noted in this
post today. Only after these proceedings were completed would the public trial,
la procédure contradictoire, have taken place in robust form (see p. 838
here). Thus, even while applauding the use of the civilian system and the crafting of an evidentiary solution—aspects of the case that do deserve applause—we ought to be a bit chary of assuming that all that occurred procedurally during the long
procès deserves applause. Still more, our discussion so far seems to ignore a core problem with the French prosecution and, in my view, with many proposed Gitmo prosecutions: The substantive crime charged.
The concern remains that the material support offenses will be emulated widely and lay the foundation for a broad retreat from the traditional posture of the criminal law in this country that complicitous liability requires a mens rea of purpose, and that if a mental state of knowledge is deemed sufficient, at the very least the underlying conduct must be substantial in relation to the criminal goals of the primary parties.
The French version of this offense may be open to additional questions. Both versions deserve far greater examination than they receive when we focus, necessarily but perhaps too narrowly, on questions of procedure.
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One last point to Phil. France uses the inquisitorial system of criminal justice: no jury, greatly relaxed rules of evidence, including the absence of a hearsay rule. (There is no need to worry about confusing the jurors or animating their biases—the usual reason for having such rules in the jury system used in the United States.) Without a jury present, classified evidence poses less of a problem. And given the relaxed rules of evidence, I suspect, but don't know for sure, that these judges would be permitted to base their decisions on evidence where the degree of coercion used to obtain that evidence is "disputed" (in the words of the Military Commissions Act, though not when the evidence is obtained through torture, which is forbidden under international law, but which is also forbidden under the Military Commissions Act). Finally, French civilian judges have less independence than American civilian judges, though it is hard to know how meaningful this difference is in practice, and in the inquisitorial system, the French defense lawyer has a more muted role than in the United States. So, what are we to make of the French example? That we give terrorist defendants procedural protections that are too limited, or that we give regular criminal defendants procedural protections that are too generous?
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Eric writes: "We are agreed, yes? That procedural protections in civilian courts are too high for war-on-terror prosecutions? ... If yes, then there is just an empirical question of whether we should demand that federal judges relax procedural protections in terrorism cases or use an alternative military-commissions system—a question that it is far too early to answer because there is so far very little evidence as to how this alternative system will perform."
The flurry of posts on the military commissions seems to me to obscure the elephant sitting in the middle of the room, namely, that the principal "relaxed procedural protection" at issue here—the one that has caused the administration to insist upon newfangled commissions rather than courts-martial all along—is that a great deal of the relevant evidence has been obtained unlawfully.
That is to say, as with most of the great debates in the "War on Terror," even when the particular dispute is nominally about the legality of military commissions . . . it's all about the torture.
Not only would much of the evidence in these cases be inadmissible because it's the fruit of coerced testimony, but the administration is hellbent on keeping secret what it has in fact done to the detainees in its control. In any legitimate proceeding—be it court-martial or civilian trial or military commission or even congressional investigation—that information would and should be disclosed. And in a court-martial or civilian trial, there's a good chance that would happen. (Wish I could say the same about congressional hearings.) But that's nonnegotiable for the Bush administration . . . and so, the endless debates about military commissions, which are designed largely to obscure the manner in which we obtained the relevant evidence.
The interesting question, then, is whether the McCain or Obama administration would be more willing in 2009 to make transparent what happened during these interrogations—after which perhaps we could figure out whether there is any tribunal in which fair trials could take place, without unreliable evidence gleaned from torture and cruel treatment. (That is to say: It's awfully difficult to conduct war-crimes trials when a good portion of the evidence was obtained by way of ... war crimes.)
(There's one other big issue, too—namely, that it is not at all clear that a great deal of the conduct alleged against some of the lower-level defendants, such as Hamdan and Khadr (e.g., driving bin Laden, delivering weapons to the front, tossing grenades at soldiers), actually violated any laws of war that were in place at the time of the conduct. But I don't see why those sorts of questions can't be resolved fairly, without regard to the nature of the tribunal.)
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Phil, what puzzles me is why people are so sure that reducing procedural protections in civilian courts is superior to constructing an alternative system of military courts with lower procedural protections. We are agreed, yes? That procedural protections in civilian courts are too high for war-on-terror prosecutions? If no, then you can't think the French (who don't even use a jury and have never been famous for their generosity to criminal defendants) have something to teach us. If yes, then there is just an empirical question of whether we should demand that federal judges relax procedural protections in terrorism cases or use an alternative military-commissions system—a question that it is far too early to answer because there is so far very little evidence as to how this alternative system will perform. As you point out, we might be more inclined to trust civilian prosecutors, judges, and juries than military prosecutors, judges, and juries, but if civilian judges do in fact relax procedural protections whenever they try a suspected terrorist, then this trust will certainly erode. Dahlia now says that she is making an empirical argument, not a catch-22 argument. However, I read the evidence she and Emily discuss as showing that there is serious disagreement among government officials about the proper level of procedural protections—how little is too little?—but from the outside it is impossible to know who is right.
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Also, our point wasn’t to issue any sort of blanket indictment of military justice, or American justice, as a whole. To the contrary. Same government, yes, but very different rules—and in the traditional court systems, it’s the courts that make those rules, not the executive branch. Not so for the tribunals. That was one of the main bases in the first place for Salim Hamdan's suit challenging the commissions in. In the wake of the Supreme Court's decision in his favor, Congress got into the act, both verifying the Bush administration's call to establish the tribunals and demanding a higher standard of due process for them. We'll find out in June, presumably, how that sits with the justices.
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At 10:00 today Pacific time (that's 1:00 Eastern), the California Supreme Court will issue its long-awaited same-sex-marriage decision. (Briefs and oral argument here.) The question presented is this:
Does California's statutory ban on marriage between two persons of the same sex violate the California Constitution by denying equal protection of the laws on the basis of sexual orientation or sex, by infringing on the fundamental right to marry, or by denying the right to privacy and freedom of expression?
My understanding is that the issue presented in the California case is analogous to, if not on all fours with, that of the Massachusetts Supreme Judicial Court's landmark Goodridge decision—namely, whether the state constitution should be construed to require California to provide not only equal tangible rights, benefits, and responsibilities to same-sex couples (which the state law already does), but also to accord such couples the status of state-sanctioned marriage, as such. (For what it's worth, in post-Goodridge litigation in Massachusetts, professor Tribe and I filed a brief on behalf of co-blogger Kenji Yoshino and 89 other Con-law and legal history scholars, which explained, in part (see Pages 18-29), why the Massachusetts SJC that such formal "marriage" status was of constitutional significance, above and beyond equality in the state's provision of rights and privileges.)
After listening to the oral argument in the California case, Dale Carpenter predicted that the same-sex marriage proponents would lose. Perhaps more importantly, Dale, a strong prononent of same-sex marriage rights (who will not be available today to respond to the Cal Supreme Court opinions), argued that such a loss would be a "blessing in disguise for the gay-marriage movement as a whole":
On the one hand, a pro-SSM ruling from the California high court would lead to a state-wide voter initiative to amend the state constitution to ban not only gay marriage but legislatively created civil unions as well. Nobody knows how that vote would turn out, but I would not be confident of a victory for gay marriage. That has always been a serious risk of this California litigation.
Beyond California, a ruling for the SSM litigants would increase the perceived risk to legislatures in other states that if they extend domestic partnerships or civil unions to gay couples courts will use that progress as a reason to force the states to go all the way to marriage. This might make them less likely to experiment with statutes that grant some rights and protections to gay families.
On the other hand, a ruling that leaves the issue to the state legislature (which has twice voted to recognize gay marriage) and the governor (who has twice vetoed gay-marriage legislation, deferring the issue to this litigation) will mean that this issue will be resolved democratically. Either this governor or a future one will eventually sign a gay-marriage bill which, as I understand California law, means that the voters of the state will have another go at the issue. (In 2000, they voted to define marriage as the union of a man and a woman in state statute.) In that event, the issue will be presented to them in the best possible light: with the state legislature and the state governor solidly behind the change—not simply the sympathy the state's high
court.
Perhaps Carpenter's take on the case would be a good jumping-off point for any Convictions posts after the California court issues its decision in a couple of hours. For myself, although I can imagine Dale might be correct in the second paragraph above that pro-SSM decisions might deter some legislatures from enacting beneficial anti-discrimination laws, I'm not so sure about his first argument: After all, the decision in Goodridge did not result in a successful amendment to the Massachusetts Constitution "to ban not only gay marriage but legislatively created civil unions as well." (On the other hand, the politics and mechanisms of constitutional amendment in California might be very different from those in Massachusetts, in a way that makes this litigation much riskier.)
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Eric, I don’t think you’ve correctly stated the Bazelon/Lithwick standard here: It’s not that all Pentagon balking is per se evidence of crap commissions. It’s that the balking, plus the seven years of after-the-fact tinkering (the CSRT “do-overs” or the Bush-appointed Court of Military Commission Review), plus the international condemnation, plus the choose-your-own-ending playbook are evidence of crap commissions. Your characterization of our argument as “so long as the insiders balk, the commissions must be flawed” overstates the point. Our point was that when even the insiders start to revolt, it’s hard to ignore what everyone else has known all along.
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Eric, we're fast approaching the end of my French vocabulary, and I really don't want to resort to using Google's translator to keep up with this conversation. But I think you're misapplying the Catch-22 standard to the French sentencing decision announced yesterday. It is true that the French court relied on some classified evidence to reach its verdict. But this was not la justice à huis clos, or justice behind closed doors. The French system, like ours, provides for the use of classified material. The material was fully disclosed to the parties involved—prosecutors, defense attorneys, and the finder of fact (in this case, French judges). The court subsequently reached a verdict, relying in part on that secret evidence.
Although the public may never see the actual classified evidence produced in the case, I think the public may trust the verdict because of its faith in the court as an institution, and the public faith in the court's mechanisms for managing classified information in the interests of justice. Compare and contrast this with the military commissions at Gitmo—where we have no faith in the institution, no faith in its procedural mechanisms, and very little confidence that it will handle classified material in a way that furthers justice.
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Phil,
The French trial also fails the Bazelon/Lithwick/Heller standard, which I would rephrase as follows. If the government takes an action on the basis of secret evidence and the publicly visible outcome serves the government's interest (e.g., conviction), then we should infer that government officials acted wrongly. If the outcome does not serve the government's interest (e.g., acquittal), then we should infer that government officials acted properly. Applying this standard to the French trial, clearly French officials acted wrongly, so the French government shouldn't get any points. I can say this with full confidence without knowing anything about what actually happened in the French trial, which is why the Bazelon/Lithwick standard is so appealing in the first place.
I assume you would apply the Bazelon/Lithwick standard to military trials only and not civilian trials (or perhaps courts martial), but I don't think there is any reasonable basis for such a distinction. It's all the same government, after all.
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Eric, I think Joseph Heller would agree with the Catch-22 scenario you've described for the commissions at Guantanamo Bay. They truly are damned if they proceed and damned if they don't. Perhaps unintentionally, I think you've arrived at the right conclusion: The commissions are fundamentally and fatally flawed; the rule of law will prevail only if they are perpetually blocked. Specific evidence against defendants is irrelevant to the question of the tribunals' legitimacy, although I'd also argue that this evidence makes it all the more important that we find some way to try the men held at Gitmo.
Ironically, our French allies across the Atlantic might have found a way. A French court sentenced seven men to prison yesterday for aiding al-Qaida in Mesopotamia by funneling young Frenchmen to Iraq to wage war against U.S. and coalition forces there. French prosecutors brought this case in civilian court, using a combination of open and sealed (i.e., classified) evidence to prove the defendants' guilt in a six-day trial this past March. Now the defendants are headed for prison—and the French get to put points on the scoreboard in the fight against terrorism.
Maybe we can learn a thing or two from our colleagues in Paris?
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Emily and Dahlia think so:
Key actors are declining to play their part in a piece of theater designed to produce all convictions all the time. These refusals, affecting two trials this week, suggest that the whole apparatus-seven years and counting in the making-cannot ever be fixed. The trials are doomed, and they are doomed from the inside out.
But they have an awfully high standard for success:
Since the inception of the commissions, the brakes have almost always been applied when some member of the military has balked, even when going along would have been the far easier course. These refusals-some silent, some very public-have combined to stall the tribunals. The clearest sign that the military system is working is that the military itself has refused to let it go forward.
If this standard were really to be applied, then the commissions would be doomed. If the commissions go forward, they cannot be legitimate, for the absence of balking would mean that participants lack integrity and are just "going along." If the commissions don't go forward, they are legitimate—but they don't actually do anything. Which is just to say that under any possible state of the world, the commissions must be ineffective, and all evidence is irrelevant.
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Out here in la-la land, entertainment strikes have wreaked havoc with the normal financing and production of new programming.
The directors were first to strike, then the writers, who were out for more than 100 days, and now the actors, whose contract expires in late June, have reached an impasse with the producers' association. Labor law seems to be one of those topics that has gone the way of a canceled pilot in most law school curricula. Too bad.
Word to the wise, law student: Convince your dean to bring it back, conjoined with a serious intellectual property understanding of emerging technology and how to divide revenues from new income pools such as DVD residuals, streaming, and made for new media, and someone on either side of the bargaining table will—as they say—write your ticket. Surprisingly, the local schools you would expect to corner this market haven't yet—though my own institution, Pepperdine is making aggressive moves in entertainment study and competition to elbow aside the longstanding dominance of USC and UCLA.
Even our dean, Ken Starr, whose prosecutorial discretion was once viewed dimly by the entertaining ones, is now pitching in to protect the most vulnerable of Pepperdine neighbors in Malibu: Britney Spears, Brad Pitt, Pierce Brosnan, Lindsay Lohan, and the like from papparazzi. It's a whole new world!
And speaking of not letting pilot programs fall through the cracks, when the directors, writers, and actors do figure out how much they should each take home in the back of the BMW from new media, the industry should do a special on race—not in America, but in its own industry. News that Supreme Court petition No. 07-1024, Screen Actors Guild v. Metoyer, has been withdrawn following the settlement of the case is hopefully good news for the parties, but a full airing of the facts (at least in some version where the names have been changed to protect the innocent, as anyone old enough to remember Jack Webb would have said) is important to the integrity of an industry whose visuals affect our own willingness to transcend racial stereotype often more than we know.
For those of you who have left your Hollywood Reporter subscriptions lapse, Dr. Metoyer was hired to be the affirmative-action officer for the Screen Actors Guild and was then herself dismissed in a nasty contretemps possibly over race (though also possibly fabricated invoices). Following her dismissal, she filed a cause of action under section 1981, and the 9th Circuit (always a tempting target for review) teed up the issue of whether the presence of mixed motivation under that statutory provision excuses discrimination (which under Title VII, by express amendment, it would not).
Ben Winograd's helpful column for Legal Times (subscribers only), picked up in SCOTUS blog, nicely outlined the procedural history, with former USC Law Dean and Judge Dorothy Nelson for a divided panel having ruled that the presence of nonracial factors in a 1981 case ought never to excuse racial motive. That seems right (as in just), but Judge Carlos Bea wrote a powerful partial dissent, suggesting his colleague was rewriting the statute and creating a circuit split. In any event, it would have been interesting—after the verbosity of Parents Involved—to see what the court would have done.
So maybe, as I say, when the locals stop fighting among themselves, the entertainment community will instruct us at their own expense. The usual settlement agreement terms and a lot of pride might get in the way, but it shouldn't. The importance of the issue with and the reputation of an industry that for a bit too long has let itself off easy by reminiscing about how it beat McCarthy (Joe, not Eugene or Charlie) commend it. Not too mention, of course, it is sort of reality programming, which the moguls like, because, well, there are fewer folks to pay.
Anyway, if it went into production soon, it could be ready for the first weeks of the Obama presidency, when there will be a demand for looking back on how America transcended race, not just swept it under the rug.
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Jack, thanks very much for your response to my post on selling liberal constitutionalism. Your post tends to confirm my sense that there are two basic ways to sell liberal constitutionalism: First, try to out-populist the populists, and second, focus on the results.
Here's a reading of Jack's post with my two categories in mind. If I'm not mistaken, all of the moves fall nicely into one of the two approaches. Jack starts with Approach No. 2, results: L" He then moves to Approach No. 1, trying to out-populist the populists: Liberal constitutionalists are together with the people because they share a belief in "basic rights," while Scalia and his ilk are out of touch because they do not share these beliefs.
Jack's post then returns to Approach No. 2, results: Liberal constitutionalism brings about freedom, justice, and equality, while Scalia's type
Of course, different people will disagree about whether Jack's arguments are persuasive. But my sense is that the arguments draw from the two moves I offered above.
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In recognition of the unusual news that a lower court decision was "automatically affirmed" because too many justices had "[f]inancial and personal conflicts of interest," a quiz:
In what case decided 60 years ago this month did three justices recuse themselves because they had a financial stake in the outcome of the issue at bar?
Colleagues?
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After noting yesterday that the Green Bag soon will publish young William Rehnquist's long-lost Mikado parody, I'm pleased to point you to the full article, posted to SSRN today by author John Q. Barrett.
John's done a crackerjack job: He accompanies the lyrics with detailed annotations and background material (on the court, Rehnquist, and Rehnquist's lighter side). Better still, he includes a few fun photos of Rehnquist at work and at play in Robert Jackson's chambers.
One of the photos features Rehnquist with his foot up on the desk, enjoying a smoke and a drink. It's impossible to tell what he's drinking, but because the photo predates 1975, I can say with absolute certainty that it's not a "Miller's Lite."
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Well, Phil, after reading the Pentagon's press release on the decision to drop charges (for now) against al-Qahtani, I admit to being overcome by the more cynical angels of my nature. On the one hand, I can see a pretty sensible prosecutorial rationale for separating al-Qahtani from the five other "high value" detainees at Gitmo charged today with involvement in planning and executing the 9/11 attacks. As the Pentagon explained:
The Convening Authority has dismissed without prejudice the sworn charges against Mohamed al Kahtani. Because the charges were dismissed without prejudice, the government has the option of charging Kahtani separately, but he will not be tried with the other accused in this case.
Translation: Al-Qahtani had been part of the big 9/11 conspiracy case we were planning to try jointly. But because the evidence supporting al-Qahtani's prosecution is particularly dicey (given, as Phil notes, what we did to him in custody), we'd rather not jeopardize the prospect of a successful joint prosecution of the five with the particularly ugly facts surrounding al-Qahtani's treatment.
Fair enough, I suppose. We've had some of these accused 9/11 masterminds in custody for years now and have yet to bring a single one to justice, in part because of concerns the evidence is now too tainted by torture to be admissible in any court. A reasonable prosecutor who parachutes into this position could only try to do the best she can with the cards she's now been dealt. (I guess we'll have to see what's to be done about the fact that al-Qahtani's isn't the only case tainted by allegations of evidence gained under torture.)
But this story comes in the midst of what's already been a hell of a past few weeks of nearly soap-operatic news out of the commission trials at Gitmo—news that's included repeated allegations that the Pentagon has pressed for convictions in the interest of partisan political advantage, and the deeply embarrassing statements by the former commission chief prosecutor who resigned in protest and has spent the past several weeks touring the country explaining how the commissions cannot possibly produce fair trials.
For details on these and other allegations, you might take a look at the fascinating opinion released by the commission on Friday, in which sitting commission judge (Navy JAG Capt. Keith Allred) issued an order excluding Brig. Gen. Thomas Hartmann from further involvement in the commission trial of Salim Hamdan on the grounds that Hartmann was exerting undue command influence on the trials (on behalf of the prosecution). Hartmann has held the only-in-Gitmo title of legal adviser to the convening authority for the military commissions—a role that essentially calls on him to provide objective legal advice to the Pentagon office in charge of running the commission proceedings. Apparently, the "objective" advice has included pushing the (since resigned) chief prosecutor to use evidence the prosecutor thought was "tainted and unreliable, or perhaps obtained as a result of torture or coercion." Not that this concern is itself especially news. One can now read some of the e-mail exchanges from the young military prosecutors who resigned from the commission office back in 2004 after alleging, among other things, the disappearance of evidence documenting detainees' allegations of torture. But the court's decision hardly helps the commissions' already battered image.
And then there are the accounts from the recent trial proceedings themselves, in which, despite the countless reasons why this shouldn't be the case, some of the most eloquent statements in the courtroom have come from a detainee. (Attorneys with my former employer Human Rights First are again blogging from Gitmo during the trials, and their recent filings are well-worth a read.) I'll just end with this particular snippet from Mr. Hamdan. Hamdan, recall, won an extraordinary victory in 2006, when the Supreme Court held the initial commission process unlawful under U.S. and international law. For a time after that, Hamdan became (as quoted by his attorneys) a remarkable champion of the U.S. legal system. That view apparently has since changed.
If you ask me the color of this table, I will tell you it's white. You say, "it's black." I say, "no, it's white." You say, "no, it's black." I say fine, "it's black." You say no, it's white." This is the American government.
This process is serving no one's interests, most especially not those of the United States. Despite the best efforts of some of the many well-meaning military lawyers who've been at various stages associated with the commissions, I just don't see any way possible for this process at this point to be taken seriously. Have courts martial Have them in the continental United States. This just has to end.
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Jack's recent post suggests a good task for science-fiction authors who write counterfactual histories—eliminate the Supreme Court's power to strike down statutes as unconstitutional and rerun history. No Brown v. Board of Education and no Dred Scott v. Sandford. No Roe v. Wade and no United States v. Morrison. No Gideon v. Wainwright and no Schechter Poultry Corp. v. United States. Would we wake up in North Korea or Sweden?
Because I am a fan of Jack's partisan entrenchment theory that extended majorities entrench their policy preferences by ensuring that ideological allies are appointed as Supreme Court justices, I am uneasy about his commitment to a (non-Scalia) style of originalism that directs those same justices to draw on the principles underlying founding materials. If Jack's entrenchment theory is correct, then Republicans will make sure to appoint people who will either (1) adopt a methodology that produces conservative outcomes, or (2) manipulate legal materials in order to produce conservative outcomes. Democrats will appoint people who will do the same, albeit in the liberal direction. Each party can plausibly argue that if the other party uses the Supreme Court to advance its policy goals (as Jack's theory predicts), then it can't be criticized for doing the same. It's hard to see what role Jack's theory of originalism would play in this scenario, except as rhetorical cover that the liberals could use to counter Scalia's version of originalism.
Or, at least, this seems to be the likely outcome if Jack is right that not even Scalia can bring himself to comply with his own theory when it generates outcomes he does not like on political grounds. While I have no doubt that Jack applies his own version of originalism honestly (see his discussion of the gun-control case), I see no reason to believe that a liberal justice who adopted Jack's theory would do the same—again, especially if Jack is right that Scalia does not apply his originalist methodology honestly. And given the ambiguity of Jack's theory, even relative to Scalia's version of originalism, the pressure on liberal justices who adopted it to avoid advancing policy goals would be correspondingly diminished. Indeed, liberals, if no more honest than Jack's Scalia, might welcome Jack's theory as the cover they need to advance their policy goals without saying that that is what they are doing. That was the point of my earlier post, and I did not mean to single out the Warren Court, except to point out that it continues to loom large as a bête noire in the imagination of the conservative "base," much more than Lochnerism seems to loom in the liberal imagination, which is why Democrats are having such a hard time putting together a politically useful judicial philosophy.
We can also use Jack's entrenchment theory to answer our historical counterfactual. If he is right, then we would have seen greater policy variance over time (at least, at the national level) but not any great difference in the policy "mean." This doesn't seem particularly worrisome. We'd be neither North Korea nor Sweden, but America—in 2008, on the verge of a significant move to the left, a move we can expect, in our real world, the current conservative Supreme Court majority to block or slow down.
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The Associated Press reports this morning that Pentagon officials have dropped military commissions charges (for now) against Mohammed al-Qahtani—better known as Detainee 063 after the Time cover story detailing his interrogation. Prosecutors alleged that al-Qahtani was the "20th hijacker," who narrowly missed participating in the 9/11 attacks after being detained at a Florida airport. However, the prosecution stalled because of government admissions that some evidence against al-Qahtani was gleaned through coercive interrogation (read: torture), like water-boarding, and that al-Qahtani himself was harshly treated (read: tortured) at Gitmo.
And so, yet again, the decision to "take the gloves off" in prisoner interrogations comes back to haunt us. The prosecution of al-Qahtani should have been an opportunity for the government to prove its case against this defendant and al-Qaida—and to confer some legitimacy on America's war on terrorism through the legal process. Instead, the military commissions remain mired in a morass of legal problems. And this particular prosecution may never go forward, beacuse it was tainted by torture.
Correction, May 14, 2008: This post originally contained a photo of a man identified as Mohammed al-Qahtani. However, the man pictured was not the Mohammed al-Qahtani discussed in the post/article. The photograph has been removed.
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By this point, Eric well knows my originalist views on constitutional interpretation and how I disagree with Justice Scalia's version of orignalism; so the first paragraph of Eric's latest post, where he wonders aloud about what I meant in my criticism of Justice Scalia, must be taken as tongue-in-cheek. There is nothing there I have not said before. But I wonder whether Eric also meant to be ironic in the next paragraph in the same way: He says that "[n]o one has been able to offer a persuasive defense of [the Warren Court's] precedents; they are now regarded as simply liberal policymaking—sometimes wise policymaking, but impossible to defend as constitutional decisionmaking."
I am genuinely curious which decisions he regards as indefensible. Would this include Brown v. Board of Education, which struck down the "separate but equal doctrine" of Plessy v. Ferguson, or Loving v. Virginia, which struck down bans on interracial marriage? First Amendment decisions like Brandenburg v. Ohio and New York Times v. Sullivan? Perhaps the right to appointed counsel recognized in Gideon v. Wainwright? Or is his complaint the reapportionment decisions starting with Baker v. Carr and Reynolds v. Sims (some people today think those were shortsighted)? Surely he must mean the guarantees against self-incrimination protected by Miranda v. Arizona, which even our friends in Canada think is the law from watching American police dramas? Perhaps he finds outlandish Heart of Atlanta Motel and Katzenbach v. McClung, which upheld the Civil Rights Act of 1964? Or perhaps he is outraged at South Carolina v. Katzenbach, which upheld the Voting Rights Act? Or perhaps it is Duncan v. Louisiana, which largely completed the project of incorporating the Bill of Rights against the states?
Inquiring minds want to know. Surely many if not most of these decisions were controversial in their time. Does he think that all of these were also indefensible?
I wonder whether Eric really means that he thinks the whole project of constitutional adjudication is indefensible because justices will inevitably be tempted to read their ideological preferences into the law. But if so, it's hardly clear that the Warren Court deserves special blame. I'm sure Eric would agree that its practices of doctrinal development were hardly unique in the court's history. The only difference is that during this brief period the Supreme Court was somewhat more liberal than the norm—largely because the nation as a whole was more liberal. During most of its history, the Supreme Court has been a largely conservative institution.
And if that's the worry, I don't think that life tenure is the cause. Not much would change if we had only fixed 18-year terms instead of life tenure. Indeed, if we look to state supreme courts, we find that they engage in very similar judicial practices even though state judges are sometimes elected and can be removed from office. Indeed, many of the Supreme Court's most famous decisions have been preceded by similar decisions under state constitutions. For example, the California Supreme Court struck down a ban on interracial marriage long before the Supreme Court did in Loving v. Virginia.
So the source of Eric's complaint about judicial decision-making, it seems to me, lies elsewhere. Perhaps we shouldn't have constitutions with abstract rights guarantees. Then judges wouldn't go around trying to elaborate them over time in ways that were controversial. That is certainly one solution, and some other countries have such a system. Perhaps at the end of the day, this is Eric's real objection: that we have not adopted a parliamentary system that lacks broad and enforceable constitutional-rights guarantees like the United Kingdom (at least before the Human Rights Act), New Zealand, or Australia.
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Yes, says Jack, but how can one compare the honesty of a person and a theory? It's like saying that the theory of evolution is more honest than William Paley. Jack might mean that Scalia doesn't apply his theory of originalism honestly, or he might mean that no one can apply the theory of originalism honestly, or perhaps that any workable theory of originalism is dishonest. It's hard to tell. Correlatively, it's not clear whether Jack thinks that any Supreme Court justice who adopted liberal constitutionalism would be honest, or that there is something intrinsically honest about liberal constitutionalism. Maybe Jack means that a Supreme Court justice who honestly applied liberal constitutionalism would be more honest than a Scalia who dishonestly applies originalism, but that would be true by definition. Jack concludes that the principles of liberal constitutionalism aren't even liberal, which makes one wonder whether it can be so honest after all. Sloganeering is hard work.
Jack does have a point about originalism: Whatever claims have been made about it on theoretical grounds, it doesn't appear to constrain judges from striking down laws that offend their ideological commitments. The problem not mentioned by Jack is that this same complaint was a longstanding and powerful objection to the Warren Court justices' living constitutionalism. No one has been able to offer a persuasive defense of these precedents; they are now regarded as simply liberal policymaking—sometimes wise policymaking, but impossible to defend as constitutional decisionmaking. That's why Democrats can't counter Scalia by advancing a constitutional philosophy; they can only invoke a disparate group of judicial decisions that are politically popular and argue that these decisions are vulnerable to conservative retrenchment. The reason that the "evolving" and "living" constitution slogans have become a joke is that everyone thinks of them as sly references to judicial policymaking that has resulted in some of the most ideologically divisive cases in the court's history. Jack's liberal constitutionalism can't escape this problem; indeed, it is probably worse than originalism on this score, as he wrings all the determinacy out of the founding materials, leaving only some dried-out husks of principles that are too abstract to have any force.
Republicans are coasting on the now decades-old reaction to the Warren Court's excesses: "Judicial activism" is still associated with that court's elitist disregard for the political choices of the people, acting through their legislatures, and this charge is still red meat for many conservatives. Scalia does well not because he is charming but because originalism has not yet suffered the fate of liberal constitutional theory and become synonymous with judicial policymaking. Democrats should work on forging an association in the public mind between judicial activism and the rulings of the conservative majority on the court; for the lack of a positive program—for the lack of an appealing product that can compete with whatever Scalia is selling—they can only rue their judicial forbears and take comfort in the thought that originalism's time will come as well. It isn't the lack of a theory that causes Supreme Court justices to decide cases in conformity with their political preferences; it is life tenure.
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I was pleased to open the Legal Times this morning [subscription required] and discover that the next issue of the The Green Bag will feature a newly discovered copy of William Rehnquist's parody of Gilbert & Sullivan's Mikado, featuring the Vinson Court of Rehnquist's year in Robert Jackson's chambers.
Jackson scholar John Barrett of St. John’s University School of Law in New York recently found a parody of a song from Mikado written by Rehnquist that sat unnoticed for 50 years in Jackson’s papers at the Library of Congress. Barrett wrote about it in the latest issue of the unconventional law review Green Bag.
Some of the droll references in the ditty are obscure, but they amounted to a fairly biting critique of the Court then led by Chief Justice Fred Vinson. Vinson was having difficulty building consensus on a fractured Court—a problem that also vexed Rehnquist when he later became chief justice, and now faces Rehnquist’s successor, John Roberts Jr. “So he decreed with stern portent,” Rehnquist wrote of Vinson, “That who thereafter did dissent/ Unless he had the Chief’s consent/ Would forthwith be beheaded.”
Barrett's work on the life and career of Robert Jackson deserves applause on all counts, but it looks like this letter is a particularly delightful treat. In my own limited research in Justice Jackson's files (reflected, in part, in a short law review article published a couple years ago), I came across a fair amount of Jackson-Rehnquist correspondence, including the late chief's wedding invitation. My favorite was a post-clerkship letter from Rehnquist, criticizing Chief Justice Warren and offering the future chief justice's view of the court's "first among equals":
Most everyone here was quite disappointed by the nomination of Warren to the Chief Justiceship; perhaps this is less than fair to the man, since there certainly is no affirmative blot on the record. But I cannot help choking everytime I hear the line peddled by, among others, TIME magazine, to the effect that "what the court really needs is not so much a lawyer as an administrator and conciliator." What the court needs is a Chief Justice; an ability to handle the administrative side and to compromise dissidence would be an asset to an able, experienced lawyer on the job, but they certainly are no substitute for some experience in the forums whose actions he is called to review, nor for the ability to think and write about the law. I think the few opinions of Warren I have seen have not been very good, but I don't suppose one should hold that against him; maybe writing opinions is an art for which the knack is acquired.
At the risk of pointing out the obvious, it's hard not to marvel at the fact that young Rehnquist's own ideal chief justice appears to be none other than John Roberts, who clerked under Rehnquist and, upon Rehnquist's death, succeeded him.
Back to the letter: Rehnquist continues with a few updates as to his life, both professionally ("My professional life is both interesting and enjoyable. I was admitted to the bar last month, and have since then argued several motions and assisted in the trial of one case.") and personally ("Nan and I have contracted with a builder to build a house for us in the suburbs here ... I am getting to feel quite settled and domestic."). He closes with reflections on the value of a clerkship:
I have occasionally reflected on the experience which I got while working for you; I think there is a tendency when one first leaves a job like that, and turns to the details of a general law practice, to feel, "Why, hell, that didn't teach me anything about practicing law." In a sense it didn't, and in that regard I am sure you would be the first to agree that there is no substitute for actually practicing. But I can't help but feel that, in the addition to the enjoyment from the personal contacts, one does pick up from a clerkship some sort of intuition about the nature of the judicial process. it is so intangible I will not attempt to describe it further, but I think it is valuable especially in appellate brief-writing.
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It seems fitting that
Justice John Paul Stevens chose Chattanooga, Tenn., for his first public comments since he declared that capital punishment is unconstitutional with these words in
Baze v. Rees:
[T]he imposition of the death penalty represents "the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment."
Chattanooga, it may be remembered, was the intended destination of nine African-American young men whom a sheriff's posse pulled off a freight train and brought to
Scottsboro, Ala., where within weeks most were convicted of capital rape (a
crime now under Supreme Court review) and sentenced to death.
On this date in 1931, eight of the condemned Scottsboro defendants were interviewed by teacher/author/activist
Hollace Ransdell, who wrote in her report, commissioned by the American Civil Liberties Union:
I visited them there in their cells in the death row on May 12, locked up two together in a cell, frightened children caught in a terrible trap without understanding what it is all about.
Cases of two Scottsboro defendants resulted in landmark Supreme Court judgments:
Powell v. Alabama (1932) established that the Constitution guarantees indigent capital defendants a right to effective appointed counsel, while
Norris v. Alabama (1935) held that the county's systematic exclusion of African-Americans from the jury pool violated the Constitution's equal-protection guarantees. No Scottsboro defendant was executed.
Alabama retains capital punishment, however, as do three of the four states in the 6th Circuit: Kentucky, home to the derby and the
Baze case; Tennessee, home to Chattanooga; and Ohio have a total of
four women and 317 men on death row (the fourth state in the circuit, Michigan, does not permit the death penalty). Thus it's worth noting that Stevens' criticism of the sentence reportedly "drew a round of applause" from the scores of federal judges and hundreds of lawyers in attendance.
Stevens indicated that even as he continues to adhere to court precedents authorizing capital punishment—indeed, he voted against capital defendants on the precise issues at bar in
Baze and in a consular-access case,
Medellín—he welcomes discussion on the ultimate question. Referring to the former decision, Chattanooga's Mercer wrote:
Justice Stevens ... conceded his opinion would 'generate debate not only about the constitutionality of the three-drug protocol, but also about the justification for the death penalty itself.'
(Cross-posted at IntLawGrrls blog)
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I'm disturbed to read an equation of "populism" with a certain ideology. It's a feint that, as Deborah points out, is not empirically entrenched. Indeed, results in this primary election cycle strongly suggest that with the right messenger, the populace is receptive to a very different message than the one here defined as "populist."
Might the matter be simply that the justice under discussion is known by the media to be "good copy," to offer good sound bites, and so is followed by media more than others? Consider the post above on capital punishment. Important message, from another justice. But only one reporter attended the public event. And when her newspaper put the item on its Web site, it chose to offer an audio download not of the remarks about the death penalty but rather a laugh-drawing recollection about baseball-antitrust hearings. More "populism"?
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Before I respond to Orin's thoughtful post, let me back up to Dahlia's diagnosis for a second - a diagnosis that I think amounts to saying that conservatives have been broadly more successful than progressives in persuading folks that originalism is the right way to approach constitutional interpretation, and/or in making this aspect of the judicial role a voting issue in their party's favor. I'm hardly a pollster, but I'm not sure I buy this take.
A little Googling turned up, for example, this nationwide Quinnipiac poll from last summer finding that an essentially identical proportion of Republicans and Democrats ranked Supreme Court appointments as a very important factor in their presidential voting decisions. Now on the other hand, the poll also showed originalism gaining (and living constitutionalism declining) in popularity as between the two interpretive approaches since 2003. But the gain/loss was in the 4 percent to 5 percent range—a modest recent trend if that. (It's also interesting that even in 2007, a higher percentage still favored taking account of changing times over pure originalism—and to the extent the living constitutionalists are losing support, it's both to the originalists and almost equally to the undecideds. I would no doubt be reading too hopefully into the poll to note as well that interest in originalism was increasing just as the current administration was straying further and further 2003-07 from the original separation of powers we'd known and loved.)
But let's assume for a minute that trend is real - that people are inclining more toward originalist interpretation than they did back in 2003. Hard to say (beyond Scalia's raw mediagenicity) what's behind this. I tend to agree that part of it must be lack of a catchy, coherent alternative message—the presentation of which is, to be fair, always far more challenging for the party not in power. My guess is it's also made more complicated by the lingering willies many lawyers (including moderates in both parties and arguably a higher percentage of liberals) get from Orin's suggestion that the way to win appointments and influence courts "is to forget about theory and instead focus on results. The slogan: Would you want to live in Justice Scalia's world or ours?"
I know whose world I'd want to live in. The thing is, in addition to freedom from Scalia's social vision, that world also includes an interest in the quaint idea (not to repeat myself) that there's still any distinction between law and politics. Orin may be right that a results-driven message sells better than even a divinely packaged theory; indeed, I'd wonder if what attracts at least some to "originalism" is not the method but the substantive image of some simpler time it conjures. But I bet I'm not alone in balking at the idea of pitching an approach to legal interpretation as all about the results.
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Deb and Dahlia, I think Scalia's argument resonates because it is rooted in populism. My sense is that this leaves liberal constitutionalists with two basic ways to sell the competing product. First, try to out-populist the populists. And second, focus on the results.
To see why, let's start with a paragraph by Professor Brown that Deb describes as one of her favorite sound bites about liberal constitutionalism:
The key to democratic legitimacy is the Constitution's ability to provide a structure within which the polity can continue to exerciseits right to self-government, including giving voice to its own commitments of political morality. Thus, it is imperative that the rights-bearing terms of the Constitution be interpreted in a way that can change and expand with the values of each generation. Not only is a dynamic constitutionalism defensible, therefore, it is absolutely essential in order for the Constitution to maintain its democratic legitimacy.
The problem with this, I think, is that "expanding" the "rights-bearing terms of the Constitution" is a complex way of saying that judges should introduce new limits on what the elected branches can do. The basic claim, as I understand it, is that democracy becomes more legitimate when judges remove undesirable options from "the People." But that's a pretty hard argument to make to the public. Notions of democratic legitimacy are usually based on the consent of the governed, not the consent of the judges.
In contrast, Justice Scalia's view has popular appeal precisely because it is based on populism. His basic theme is that the People created the Constitution, and they can set rules with in it. If the People want to change the Constitution, they can. But it's up to them. In this view, the People decide: Every citizen is empowered to participate in the rule making that governs us all. I think this resonates not because Justice Scalia is a legal Pied Piper but because the message itself is quite powerful (and to me, I confess, pretty persuasive). At bottom, it's "we the people."
What does this mean for those who want to sell liberal constitutionalism to the public? I think it leaves open two basic options. The first is to try to beat Justice Scalia at his own game: Argue that limiting choices actually leads to better democracy. The idea here is that some limitations on democratic rule making actually enhance democratic rule making. This is a very popular move among academics, although it can be hard to sell to the public. The problem is that it's tough to reach consensus on why limiting choice is good for people and which choices should be limited. Theories abound from John Hart Ely through Justice Breyer and onward, but it's hard to pick just one theory above the rest. (Should we go with "Representation Reinforcement" today? Or "Active Liberty"?) The argument quickly splinters into many distinct academic claims, making it hard to coalesce around a single message.
The second option is to forget about theory and instead focus on results. The slogan: Would you want to live in Justice Scalia's world or ours? I think this is usually the most effective way to sell liberal constitutionalism. The idea is to focus on the bad results that are possible if courts let elected branches run amok, and then ask whether you want to live in a world with good results or the potential for bad ones. A lot of people will respond, sensibly enough, that good results beat out the potential for bad ones. This approach wins no prizes for theory, but my sense is that it often proves pretty effective in the court of public opinion.
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Amid all the news items last week, I wanted to flag this brilliant article in the New Yorker by Patrick Radden Keefe on the al-Haramain case and the "state secrets" privilege. Keefe describes the way the case unfolded—starting with the government's inadvertent disclosure of the fact that it was using its super-secret NSA surveillance program to eavesdrop on conversations between an alleged terrorist charity and its lawyers.
The al-Haramain foundation brought suit in federal court over the NSA surveillance program and the ways that program violated al-Haramain's constitutional rights. So did many other plaintiffs, but al-Haramain was different because it had actual documentary proof of the fact that it had been surveilled. To get this challenge dismissed, the government deployed one of the most potent legal weapons in its arsenal: the "state secrets" privilege. Often described as the neutron bomb of litigation, the government invokes this privilege when it feels that continued litigation will threaten national security.
Justice Department lawyers asserted the privilege in this case, but there was a hiccup: The federal judge hearing the case didn't want to summarily dismiss it. The government appealed to the 9th Circuit, which issued a somewhat disjointed opinion last fall excluding the secret proof of surveillance but allowing the case to proceed.
More than 40 cases are waiting in the 9th Circuit to be resolved, either at the district court or appellate level. To date, the Supreme Court has turned down appeals involving the state secrets privilege, but it's not clear how long it can continue to do so given the monumental constitutional issues involved.
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Deborah. You are reading me exactly right. ACS has done tremendous work on this front, and I am not slagging legal academics here at all. But between John Roberts' whole "umpire" thing and Scalia's little red bat-phone to the Framers, it seems to me progressives are being badly out-sold. At the risk of yet another wretched baseball metaphor, my problem here is with the pitcher, not the pitch.
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In case you living constitutionalists missed it, Dahlia just threw down the gauntlet at the end of her latest account of the many charms of Justice Scalia on his book tour.
The problem, for those of us admittedly charmed but decidedly not persuaded by Scalia's [originalism] argument, is that Scalia has decided to make his case at a moment when there's no one with his charisma offering an opposing view. Justice Scalia's absolute certainty about his own constitutional worldview has benefited over the years from near radio silence from the court's liberal wing. The fuzzy echoes of Brennan's "living constitutionalism"—the notion that the Constitution evolves with social norms—have become too easy for him to parody. Without a really compelling legal theory from the court's liberals, and with his new willingness to be open and expansive for the cameras, it was virtually guaranteed that once Scalia uncorked his considerable charisma, his constitutional methods would appear to be the most plausible approach, if not the only one.
I admit, Dahlia, my first reaction was, yeah, Justice Scalia is camera-ready for sure, but it's hardly fair to say there's no one offering an opposing view. There's Justice Breyer's book, as you mention. And the highly dynamic American Constitution Society (ACS) exists in significant part just for the purpose of developing charismatic opposition. Indeed, when I dashed over for a quick peek at the ACS Web site to see whether it had something to be invoked in its defense, I quickly came to the collection of papers by con law glitterati (including, inter alia, our own Jack Balkin) from a relatively recent symposium ACS sponsored on just what "living constitutionalism" is all about. One of my favorite sound bites was from Vanderbilt Professor Rebecca Brown, who put it with her usual eloquence:
The key to democratic legitimacy is the Constitution's ability to provide a structure within which the polity can continue to exercise its right to self-government, including giving voice to its own commitments of political morality. Thus, it is imperative that the rights-bearing terms of the Constitution be interpreted in a way that can change and expand with the values of each generation. Not only is a dynamic constitutionalism defensible, therefore, it is absolutely essential in order for the Constitution to maintain its democratic legitimacy.
But then I went back and reread your condemnatory paragraph and realized—your complaint isn't so much about substance, it's about salesmanship. No matter how smart Breyer may be, his "imagine a spherical cow"-type of hypothetical colloquialisms are just too rarified to break through the noise. The liberals have plenty of theories, but none has taken an undisputed place at the top. And the occasional Alan Dershowitz-type notwithstanding, profs are just profs. We need a justice or, say, a presidential candidate who can declare one concrete version of living constitutionalism the winner and wrap it up in a stylish new package that serves a progressive constitutional agenda for the new millennium.
Am I reading you right—is it more the who than the what? And then the biggie—is the only remedy in your view a new face on the bench? Or do you think there's just something about sales that liberals haven't learned?
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In contrast to , I'm not all that upset at John McCain's speech on the judiciary. McCain is signaling to Republicans that he will take pretty much the same line on judicial nominations that the party has taken since 1980, when it began an increasingly self-conscious strategy of stocking the courts with movement conservatives. McCain doesn't like some things the courts have been doing, says that judges who decide cases this way are arrogating power to themselves improperly, and then states that if he is elected, he will appoint judges who interpret the Constitution the way he thinks it should be interpreted:
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Thanks, Orin, for replaying some of my greatest hits on the judicial role and the separation of powers. As I mentioned in my earlier posts on Sen. McCain's remarks, he and I are in large agreeement on the quality of Chief Justice Roberts and Justice Alito, and unlike him, I am willing to openly add Justices Scalia and Thomas—who seem rather expediently missing from the senator's listing of judicial exemplars. Even candidate McCain's likely opponent, Sen. Obama, has written openly that he is "not unsympathetic to Justice Scalia's position [on originalism]." One is tempted to say to Sen. McCain, "Yes, you can!" Have the courage of your convictions, man. That said, as I earlier wrote, Sen. McCain did have fine and unexceptional things to say about the judicial duty to observe the structural provisions of the Constitution.
But it still seems quite unwise and unfortunate for candidate McCain making his major speech on the judiciary to:
1. Lead with an unwarranted and unhealthy condemnation of the Third Branch, which candidate McCain described as "the common and systematic abuse of our federal courts by the people we entrust with judicial power." Common! (putting aside the good-faith efforts of extraordinary Democratic appointees like Merrick Garland and David Tatel, how "common" can the "abuse" be if there have been 20 years of Republican judicial personnel added to the federal bench since 1981?)
2. Attack the Constitution, itself, which I take it is what McCain means by systemic! Candidate McCain glancingly posits that the founding design of the Constitution leaves the court unchecked, when Article III clearly does not. This, unfortunately, reveals less understanding of the separation of powers than his rhetorical flourishes of praise for constitutional structure elsewhere in his text lead us to believe.
3. Have as its real purpose slamming Sen. Obama's mistaken vote against John Roberts and Samuel Alito. Now, we are on to something, but instead of saying something new or helpful about the difficulty of constitutional interpretation, the names of these venerable public servants are trotted out like bumper stickers. Candidate McCain makes no effort, and since he was speaking at a university with a law program of some note, one might have anticipated one to engage the topic in other than partisan and time-worn fashion. It's not as if Sen. Obama's judicial philosophy is hard to find. It would, for example, appear much influenced by Stephen Breyer's theory of Active Liberty. While giving "reverence" to the founding design, Sen. Obama, like Justice Breyer, believes constitutional principle not to be "static," with its "general principles" promoting active democratic participation while at the same time capable of dealing with the 21st century realities of "NSA computer data mining, ... freedom of speech on the Internet," and the like.
It would be a fine debate worthy of the next national convention of the Federalist Society and the ACS to undertake a serious examination of the competing interpretative views of the McCain-Obama contest. As Orin points out, Sen. McCain and I apparently both thought originalist material was not sufficiently relied upon as applied to the facts of Roper v. Simmons. While that was a juvenile death-penalty case, it is interesting that Sen. Obama in the somewhat different contexts of "mass murder, and the rape and murder of a child" finds the death penalty to be warranted. Since this is an area of substantive agreement on a sensitive and controversial topic, candidate McCain might have used his academic address to make some genuine contribution to the debate by examining why in judicial reasoning, it's not just policy agreement that counts, but how one gets there.
The point remains: The McCain speech unfairly attacked the good-faith service of the Third Branch generally; asserted in cursory fashion constitutional flaws that were not shown by the senator to exist; and took a snarky, partison swipe at his likely general-election opponent, whose writing contains a similar concern to that raised by Sen. McCain, that too often "Republicans no less than Democrats ... [have] asked the courts to overturn democratic decisions ... that they didn't like." Sen. Obama, whose judicial philosophy pays heed to originalist principle but does not rest there, openly questions whether his party "in [its] reliance on the courts to vindicate not only our rights but also our values ... had lost too much faith in democracy."
A small amount of research by candidate McCain's talented legal-advisory group would find both points of interpretative disagreement, within intriguing overlaps as well as points of accord with Sen. Obama. Wrestling with that reality would have been an interesting and honest talk. Indeed, that would have been the kind of talk someone interested in not being politically confused as offering only a third George W. Bush term might have been most anxious to give. Instead, candidate McCain chose only to warm over the tired commentary of the past, even that given by a tired old professorial soul like myself, while adding his own unique signature of political diviseness, constitutional mistake, and gratuitous insult to those who are presently serving on the bench. Frankly, I like my version better, and a new, substantively honest discussion of the important role of the courts in our constitutional system would have been the best of all.
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Doug, I'm interested in learning more about your criticism of Sen. McCain's speech. In particular, I'm curious about the differences between what Sen. McCain said in yesterday's speech and your own well-known criticisms of the federal bench and the Supreme Court in the past.
For example, in a 2005 column for the Los Angeles Times, you wrote that today's federal bench has been warped by the view that judges should decide cases not based on law but on their personal preferences. You suggested that we must begin to restore the proper view of judging in which judges actually follow the law (what you described as "the only faithful way for a judge to discharge his or her duty"):
For the last half a century, law students have been taught that cases are not decided on the basis of formal, authoritatively adopted rules and principles but on the basis of a judge's cultural and social intuitions. 'Legal realism,' as it is called, turns judging into a matter of force or will (personal preference) rather than the exercise of reason, the method called for by Alexander Hamilton in the 'Federalist Papers.' When judges disregard Hamilton's advice, they inject politics into judicial judgment and invite it into confirmation proceedings. Restoring an understanding of the law and the Constitution as text, rather than as jumping-off points for ideological excursions, is an uphill battle, yet it is the only faithful way for a judge to discharge his or her duty.
Source: Douglas W. Kmiec, "Judges: The Law Is the Law," June 26, 2005, Los Angeles Times.
You've also suggested that the next presidential election will prompt a choice between judges who are "faithful" to the law and those who will "corrupt" the law with the "specious" idea that law is politics. As you put it, "During the immediate years following the next presidential election, there are likely to be one or more vacancies that will either secure the bench as a faithful exponent of law or corrupt it by the specious idea that there is no meaningful distinction between law and politic."
You've also criticized some of the same cases that Sen. McCain targets in his speech on pretty much the same grounds as does McCain—that they are raw exercises of will. Here's what you wrote about Roper v. Simmons, the juvenile death-penalty case that Sen. McCain singles out for criticism:
The problem with the U.S. Supreme Court's decision last week banning the execution of minors is that it was based, when you get right down to it, only on the personal beliefs of five justices and buttressed by the opinions of people who live in other countries. That's no way for the court to decide. Supreme Court rulings must be based on the Constitution, not on what the justices believe or on the vagaries of "world opinion."
The court's decision fans the flames of a long-standing dispute over how the Constitution is to be viewed. Should it be treated as an enacted law — that is, something to be fairly interpreted and evenhandedly applied — or is it an open-ended document for the court to interpret as it sees fit? The first methodology is democratic self-government; the second — in which an elite body is invited to impose binding pronouncements about how the rest of us are to live — is something else.
Source: Douglaw W. Kmiec, "Whose Constitution Is It Anyway?," March 6, 2005, Los Angeles Times.
Maybe I'm missing something, and I don't want to play "gotcha." But to my ears, the new John McCain sounds rather similar to the old Douglas W. Kmiec.
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David, you ask whether Obama or Clinton will reply to McCain's attack on those beloved bugaboos, activist judges, and, if so, what they should say. I agree, Doug, that throwing the "activist" insult back at Alito and Roberts, as Howard Dean did, is lame. Based on the Obama and Clinton campaigns' responses to my own efforts to report on the candidates' views on appointing judges, and Charlie Savage's, I'd say that each of them if nominated will come up with a decent response. Many of the moving parts are there: concern about executive overreaching, Guantanamo, police power run amok, employee rights, women's rights, the promise of equal protection, a general sense that courts should at times be a refuge for the disadvantaged. What I fear is that the Democratic candidate won't figure out how to make the composition of the courts a rallying cry in the way that McCain is already doing. Republicans are just mostly better at this. Their voters get what's at stake. I'm not sure what it would take for Obama or Clinton to get the same kind of purchase. Thoughts?
In the Philadelphia debate last month, I liked the substance of Obama's answer about the D.C. guns case: He likened the relationship between gun regulation and the right to bear arms in the Second Amendment to zoning ordinances and the protection against takings in the Fifth Amendment—in other words, you can have a constitutional right, and the state can also set reasonable limits on that right. I was annoyed, though, that both he and Clinton made a point of not taking a position on the merits of the case. They said they hadn't read the briefs. Please. Whoever is nominated had better figure out a good response to the court's ruling on the D.C. gun ban when it comes down in June. Because whatever the ruling, it has the potential to make trouble for the Democratic candidate and to make hay for McCain.
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Harris County, Texas, Judge
Caprice Cosper has set Aug. 5 as the date for execution of José Ernesto Medellín, whose bid for relief the U.S. Supreme Court rejected in a 6-3 decision issued at the end of March.
At issue in
Medellín v. Texas was Article 36(b) of the 1963
Vienna Convention on Consular Relations, which requires law-enforcement agents to advise noncitizen suspects of their right to contact their consulate (prior posts
here). The enforceability
vel non of that article had been the subject of considerable litigation in the United States and in the International Court of Justice. In
Medellín—involving a death-row petitioner who, like many persons arrested in the United States for decades after America joined the treaty regime, never was advised of his consular-access rights—the Supreme Court was called upon to consider:
- Did President George W. Bush overstep his constitutional authority by instructing state courts to give to defendants like Medellín "review and reconsider[ation]" of their cases, as mandated by the International Court of Justice in Mexico v. United States (Avena) (2004)?
- Must a court in the United States honor the United States' treaty obligation by itself enforcing the ICJ's decision?
Both issues having been pressed, the court decided both. Treating the latter question first, Chief Justice
John G. Roberts Jr. answered "No," in an opinion that interpreted precedents on whether a treaty provision is self-executing more narrowly than they were treated in, for example, the
Restatement (Third) of the Foreign Relations of the United States (1987). The answer to the former question was "Yes"—in telling a constituent state what to do, the president had violated the Constitution. The dissent of Justice
Stephen G. Breyer relied on the earlier view of nonself-execution doctrine. But to no avail; Breyer was joined by only Justices David H. Souter and Ruth Bader Ginsburg. (
Margaret E. McGuinness'
ASIL Insight here; prior Convictions posts on the decision
here and
here.)
And thus did Medellín this week return to a Texas courtroom.
At this Houston hearing, Medellín's attorneys—
Sandra Babcock, clinical associate professor of law and clinical director, Center for International Human Rights, Northwestern University School of Law,
Donald Donovan of New York's Debevoise & Plimpton—sought to delay execution. "This is a case whose effects go far beyond this courtroom," Babcock said. Donovan added, "This country is committed to the rule of law. We have a legal obligation. We should comply with it."
"I did not intend to hold a hearing. I did intend to set an execution date."
One suspects that this was not the "further appropriate action by the State of Texas" that Justice
John Paul Stevens had in mind when, agreeing with Breyer's view of the nonself-execution doctrine but disagreeing that its threshold had been met, he concurred in the court's judgment in
Medellín.
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In covering John McCain's effort to win friends with the conservative base by praising Chief Justice Roberts and Associate Justice Alito (which I agree they deserve, not because they are reflexively conservative, but because they are jurists who are admirably dedicated to an objective appraisal of the law as written), the national media missed the big, and more troubling, story: McCain wrongly attacked both the Constitution and Article III judges.
McCain's claim that there is "systemic abuse" of the federal judicial office is an occasion not to praise him but to ask his apology for the overwhelming legions of federal judges who serve with distinction and at modest pay often without acknowledgment. To say that McCain meant only to single out the few who defy text, and who justly warrant and receive reversal, is to overlook the intemperate sweep of the McCain condemnation of the Third Branch. In his obvious effort to, well, pander, Sen. McCain did a disservice to these public servants and, as I earlier wrote, falsely assailed the Constitution for a flaw that does not exist, and insidiously undermines public trust in the fairness of the judicial process. Let McCain's overbroad and unrefined words speak for themselves:
There is one great exception in our day, however, and that is the common and systematic abuse of our federal courts by the people we entrust with judicial power. ... With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states.
This is not straight talk; it is calumny.
The Democratic response issued by DNC Chairman Howard Dean was scarcely better. Dean's feeble, and partisan, tit-for-tat effort to paint the chief justice and Justice Alito as "activists" is so thin that it makes one want to engage in the practice for which Dean is most famous: scream. Dean's response, which shows no appreciation for the solid points Sen. McCain did make about the importance of observing the constitutional structure, illustrates a serious problem for presumptive nominee Barack Obama: Sen. Obama may want to bring his party to a higher, more noble plane where reason is recognized not to be bounded by its red or blue origin, but the leadership of his party apparently still wants to fight in the gutter.
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That's about the best response the Justice Department and White House can muster after finding out that 46 of the 74 judges on the federal Board of Patent Appeals and Interferences were appointed in an apparently unconstitutional manner. Adam Liptak writes in his NYT "Sidebar" column how this matter would have continued to go unnoticed but for the intrepid reporting and writing of GWU law professor John Duffy, who published a short paper on the issue.
What amazes me is how many people were simply asleep at the switch here. There are hundreds, if not thousands, of lawyers who practice in this area, and the appointment of patent court judges is a big deal to those lawyers and their clients. You'd think that one of these lawyers would have found this issue while looking for a way to overturn an unfavorable decision—but that apparently didn't happen. Kudos to professor Duffy for his investigative skills.
But now what? Is there a way that Congress or the Department of Commerce can retroactively endow these judges with lawful authority? Can these judges' decisions be saved?
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Presumptive Repubican presidential nominee John McCain will speak today on his philosophy of judging. From the looks of it, it doesn't figure to be anything particularly surprising. Just claims that Roberts and Alito are against judicial activism while the Dems are for it. But what does interest me is that, with the creation of the American Constitution Society as a counter to the Federalist Society, and the efforts of Justice Breyer to expressly challenge in the public domain the judicial philosophy of (at least some on) the right—and particularly as they are reflected in the opinions and writings of Justice Scalia—this would seem to be a year in which one might expect there to be an answer from the presumptive nominee on the other side. And by an answer, I mean something more than a reiteration of commitment to certain discrete precedents, say, perhaps Casey and Grutter. So, will there be such a reply this election cycle? If not, why not? If so, what would/should such a response be?
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John McCain's harsh assessment of the federal judiciary is unworthy of him.
While his praise for the separation of powers and judicial restraint is fine, and unexceptional, Senator McCain's suggestion that there is a flaw in the constitutional design or that the Supreme Court is an unchecked, or renegade body is simply off-base.
There is no flaw, Congress has virtually plenary authority over the Court's appellate docket. Congress can withdraw cases from the Court if it believes matters have been wrongly handled, and perhaps more importantly, it can mandate that the Supreme Court handle a full range of cases so that it has less time and less discretion to find itself tempted to mischief. The fact that the Congress leaves these powers largely untouched may have more to do with what distresses Senator McCain than judicial activism.
Since Congress has it within its authority to keep the constitutional system in balance, it is imprudent and unfair to once again make judges the scapegoat for the constitutional outcomes with which one disagrees. Certainly, it is vast overstatement to claim that there is some "common and systematic abuse of our federal courts by the people we entrust with judicial power." Or that "for decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges."
I have just returned from having the privilege with the Solicitor General of discussing with Justice Scalia and the judges of the U.S. Fifth Judicial Circuit the methods of constitutional and statutory interpretation. To a person, every judge present, regardless of the president who appointed him or her, spoke in earnest about faithfully adhering to the rule of law. It is a simple fact that the conventional meanings of language do present issues that are difficult or indeterminant or not fully addressed by the legislative body.
While Senator McCain is to be thanked for the praise given the Chief Justice and Justice Alito, it is unbecoming and two-dimensionally partisan to imply that Justices Breyer and Ginsburg are ipso facto out of the mainstream or that there is some "systemic" disregard of the judicial oath by the men and women who serve their nation in the Third Branch in the lower courts at a salary that is dwarfed by extraordinary levels of work and the burdens of the office.
David Barron is right, Senator Obama should take the opportunity to outline his own understanding of judicial role and philosophy, and it might begin with a more fair and honest assessment of the judiciary. Like Senator McCain, I often concur with the particular constitutional outcomes that John Roberts, Sam Alito (and powerfully intelligent Antonin Scalia who McCain curiously left off his praise list) often determine, though it devalues their service to imply that these jurists are worthy merely because they have arrived at a conservatively happy ending in given case. Because the legal questions presented to the Court are seldom self-evident, these men have disagreed with each other on some not insignificant matters, including federal commerce limitations on state power, and most recently, the Chief Justice had more agreement with Justice Stevens in upholding Indiana's choice to require a government voter ID than his former Reagan administration colleagues.
It is poisonous to the health of the constitutional system to trash the Court as venal politicians. In truth, a general word of thanks from Senator McCain, and his leadership in the Senate to approve a much-needed and long overdue pay increase for federal judges, would be more statesman-like and welcome.
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Elsewhere on this site, Bruce Ackerman and Jennifer Nou scold the Supreme Court for deciding the Indiana voter-ID case with nary a mention of the 24th Amendment's ban on "poll tax[es] or other tax[es]" that "deny or abridge" the right of citizens to vote in the federal elections. Invoking Harman v. Forssenius, a Warren Court case involving that amendment, Ackerman and Nou pull no punches:
We don't suggest that the Roberts Court isn't clever enough to find a way around Harman. Our point is that the justices didn't even try. They ignored the 24th Amendment and restricted themselves to the equal-protection clause of the 14th in deciding the Indiana case.
* * *
This sort of thing doesn't happen every day in the life of the court—indeed, we can't think of another case in which the justices utterly failed to address the most obviously relevant provision of the constitutional text. If they had squarely confronted the law and language of the 24th Amendment, there is a fair chance that Justices Stevens and Anthony Kennedy would have switched sides, creating a new majority for striking down the Indiana law.
Then, not content to criticize the court as a whole, the authors take direct aim at (go figure) Scalia and Thomas:
[The court's] failure is especially curious in light of the Roberts Court's increasing emphasis on the primacy of the written text in constitutional adjudication. If the 24th Amendment had been front and center, even conservative textualists like Antonin Scalia and Clarence Thomas would have been obliged to think again before ruling against voters' rights.
In their race to criticize the court, Ackerman and Nou miss the point: The Supreme Court didn't reach the 24th Amendment in the Indiana case because that issue was not brought before them by the parties to the case! Unless I'm mistaken, the cert petitions didn't raise the issue, and, consistent with those petitions, the court's question presented limited itself to the First- and 14th-Amendment issues.
(Amazingly, Ackerman and Nou actually note that the lower court did not reach the 24th Amendment issue, yet they fail to consider whether the parties caused that omission below or before the high court.)
In short, Ackerman and Nou appear to forget that a Supreme Court case or controversy is not a free-ranging search for legal truths; rather, a Supreme Court case presents a specific issue or set of issues, raised by the actual parties to an actual legal dispute, to be resolved for the purposes of their litigation and for subsequent cases involving the same legal issue. The point is not that (to quote Ackerman and Nou) that "the court failed to ask" a question—it's that the parties failed to ask the question.
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Eric, I’m with you about the Genetic Information Nondiscrimination Act. It sounds good at first: Everyone is worried about a Gattaca-type future* where people are shunned on the basis of genetic tests, leading to genetic manipulation, eugenics, and a dystopia where everyone lives in Frank Lloyd Wright-style buildings, wears Jil Sander suits, and looks as gorgeous as Uma Thurman (so, OK, this last bit doesn’t sound so bad …).
But if we really think it’s invidious to tie health insurance premiums to risks, perhaps we should consider socialized medicine where everyone pays the same, state-enforced premium. We all know how popular that idea is in the United States, which suggest that people want a market-based system. It is odd indeed that people seem comfortable with the part of the market that distributes care based on ability to pay but not with the part that would tie the price to the amount of care consumed (or likely to be consumed). The perverse result of this law is that poor people with low health risks are forced to effectively subsidize rich people with high risks. This is a law both left and right should have opposed (or at least questioned).
Why didn’t anyone oppose it? I suspect some of the reason is the subtle (or not) analogy to race and sex discrimination—what I’ve called Racism by Analogy. It’s tempting to think that the moral lesson of the civil rights revolution is that we should discriminate only on the basis of desert, but in fact any meritocratic society also entails lots of discrimination on the basis of inherited and unearned virtues, such as intelligence, height, physical strength, and good looks. It’s not “fair” (just as it's not fair that I wasn’t born with Denzel Washington’s looks and Tiger Wood's hand/eye coordination), but genetic discrimination is unlike race and sex discrimination along precisely the dimension that matters: Race and sex are widely used, culturally reinforced, and often poor proxies for personal virtues (stereotypes) that reinforce widespread and illegitimate social hierarchies. Genetics are just the opposite—they are in many cases extremely good proxies for personal virtues (health) that won’t lead to entrenched social hierarchies. And, unlike race and sex, there’s no history and custom of irrational prejudice surrounding genetics, so there’s no reason to suspect that genetic information will be widely misused.
* Correction, May 6, 2008: This post originally misspelled the title of the movie Gattaca.
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I'll get back to the substance of our legal debate on presidential authority in a sec, but first a response to Marty's two more general points.
Does anyone care what the Somalia air strikes tell us about the current legal status of the "war on terror"? Doesn't look like it, Marty says. Quite right, Marty. Though I'm wondering if/whether the story would've played differently if all eyes hadn't been riveted to the rather gripping Democratic primary battle right here in the territorial United States.
But even if it weren't for the availability of better blog fodder elsewhere, Marty asks, does anyone think law has anything to do with any question of war, foreign affairs, and/or military force? Great, and big, question. My quick take: Folks often don't, but they should. There are all kinds of reasons why there are differences between the laws governing, say, the military and the laws governing, say, health care. But a country of laws is a country of laws. I've never been able to see why it seems so easy for so many to see security as something altogether outside that framework. In any case, the law in, about, and of war has been with us for a long time. And as I've noted elsewhere, it has more than once in our history been the military at the forefront of making sure it's here to stay.
Back to Somalia. I'm confident Marty is right that the current administration (and likely most other executives) would assert that the president has the constitutional power to pursue a strike like this without going to Congress for prior authorization first. But what I think this administration would say about its power here in particular is that this strike was the latest salvo in the ongoing "war on terror" (or whatever they call it these days). That is, they'd say it is part of the president's commander-in-chief power to direct the use of the armed forces in an ongoing conflict. So for them it's not, as Diane suggests, a question of what legal authorization is required to start a war (Somalia, after all, seemed to consent to this attack), but what legal limits there are on how a war is carried out. It's in that respect, I think, that what the AUMF says about "necessary and appropriate" matters. Whether or not the president needed to go to Congress in the first instance for authorization to pursue a global "war on terror," Congress has now spoken on that subject.
Most folks (I include myself) think the AUMF surely contemplated the invasion of Afghanistan in 2001. Did it also contemplate, say, targeted killing in Somalia in 2008? Because Diane and I agree the law of war might shed some light on the scope of Congress' thinking here. I'd be interested to know whether jus in bello (the law during war, like the Geneva Conventions) would put this within the bounds of conduct in this case (assuming, Diane, that we're in the administration's particular world of war).
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Thanks very much to Phil, Deborah, and Diane for their posts about Wednesday's air strike in Somalia. Apparently it was the fifth U.S. strike in Somalia in the past 16 or so months. I do have a few, mostly preliminary thoughts about the legality of the strikes, but before I get there, I think the most noteworthy aspect of this story is that, except for us bloggers and some international law scholars (and former State Department officials), it seems that no one really cares whether the strikes were legal. I haven't seen any discussion of the legal question in the major newspapers or on television. No debate in Congress, far as I can tell. And even the administration itself has not bothered to offer any legal justification of its conduct. On the White House Web site, all I was able to find was this passing comment by the president in a Q&A at World Wide Systems Inc. in Maryland Heights, Miss.:
You probably read your newspaper today—I can understand if you didn't, but you probably—(laughter)—well, anyway, there was a strike in Somalia, and the headline says "al Qaeda operative." We're constantly trying to find these people before they hurt you; pressuring all the time.
That's it: The president offhandedly refers to a newspaper headline about an "al Qaeda operative"—and that's apparently all that needs to be said.
This is, I think, a minor example of a much larger phenomenon, and problem—namely, that apart from questions of detainee treatment and the like, the American public, press, and legislature appear to be completely oblivious to the idea that questions of war and military force raise any legal issues at all. It's not as if the public is indifferent to questions of whether and when military force is appropriate. To the contrary: It's simply that it seems never to occur to anyone that law's got anything to do with it.
This phenomenon was most telling in the run-up to the Iraq war: In England and across Europe, there were prolonged, impassioned public debates (recall the Lord Goldsmith drama) about whether the war would be consistent with the U.N. Charter and with international law more broadly. Meanwhile, over here in the States, we certainly had a very intense public debate about whether to go to war in Iraq—a debate that included countless considerations of, and disputes regarding, costs, benefits, justifications, tactics, evidence, morality, etc. And yet, from what I can recall, the notion of legality was simply not a serious component of that debate at all. Those who supported the war would certainly not have considered changing their views if convinced that the war would violate international law; and those opposing the war did not think it would advance their cause to argue that the war was illegal. Moreover, I suspect that if any major political figure here had suggested that whether we fight a war in Iraq depends on, say, whether it would comply with the U.N. Charter, folks would have looked at her as if she were speaking a foreign language.
What's worse, it seems to me that no one much considers the law when it comes to the use of military force because no one thinks the law will, in fact, constrain the executive, anyway, whether Republican or Democrat ... so why bother? Fortunately, my impression is that the question of legality does still occupy executive officials, at least in the State Department, but I wonder how much influence those folks have and how long it will be before such fundamental legal questions begin to lose their purchase altogether.
OK, but what about the Somali strikes, including the one Wednesday: Are they legal? A few scattered thoughts:
1. It's not clear to me that the president would lack the constitutional power to order the strikes, even in the absence of the AUMF. Are these strikes materially different from President Clinton's 1998 strike on the pharmaceutical factory in Sudan? Surely the strikes themselves do not amount to a "war," in the constitutional sense—particularly because it appears that the government of Somalia likely welcomed (if not invited) our action—and so it's not obvious that the Declare War Clause is relevant, or that any congressional involvement is required, as a constitutional matter. Whether the president could order the strikes without legislative approval would depend, I suspect, on a variety of factors, not least of which is why, exactly, the strike was ordered—what the U.S. interest was. And because the administration is not saying anything about the purpose or legal basis of the strikes, we're left mostly in the dark on that question. (From all that appears, the strike was designed to stymie the influence of the al-Shabaab insurgency, and thereby to protect the governing, U.S.-backed Somali government.) On this general question, my views are close to those contained in memoranda written by Walter Dellinger as head of OLC in the Clinton Administration, justifying the military actions in Haiti and in Bosnia. (Under the rationale of those opinions, most modern unilateral presidential military actions have been constitutional—with the important possible exceptions of Korea and Kosovo.)
2. If there were no independent presidential authority to order the strike, does the AUMF authorize it? Well, that depends largely on (i) whether and how the target of the strike, Aden Hashi Ayro, was connected with al-Qaida (and whether such connections were the genuine basis for the strike), and (ii) whether the strike complied with the laws of war (and was thus "appropriate," as the AUMF requires). On the first question, the headlines do, indeed, regularly refer to Ayro as an "al-Qaida operative." But what does that mean? It is undisputed, I think, that he trained with al-Qaida before 2001. But was he in fact acting as an al-Qaida "operative"? Was he part of their command structure? I have no idea, and the reports I've seen are conspicuously threadbare on this question. (Somali government intelligence claimed last year that he had been "named" al-Qaida's "leader" in Somalia, and I have no reason to think that's not the case, but I also have no idea how reliable that claim is, or even what it would mean, exactly. The Washington Post editorial page claims that "as al-Qaeda's chief liaison in the Horn of Africa, Mr. Ayro coordinated the movements of militants and money, and he sheltered several of the suspects in the 1998 bombing of two U.S. embassies in East Africa." Again, I have no reason to doubt the truth of this, nor any way to assess its reliability.) Ayro was certainly a very evil and dangerous guy, and the United States had very good reason to want him dead. But it's not yet clear whether his amorphous ties to al-Qaida—to those responsible for the 9/11 attacks, against whom the AUMF authorizes the use of military force—were the actual reasons for this strike, or whether those ties are a mere pretext for a military strike that we would have undertaken regardless of any possible al-Qaida connection. From all that appears, the strike was undertaken simply because Ayro was a terrorist, without regard to whether and how he was connected with al-Qaida: “The U.S. is committed to identifying, locating, capturing and, if necessary, killing terrorists wherever they operate, train, plan their operations, or seek safe havens,” said a Pentagon spokesman. If so, then the AUMF is probably merely a legal fig leaf.
3. I agree with Deborah and Diane that the strikes must comply with the laws of war, whether they were authorized by the AUMF (which the Supreme Court in Hamdi properly construed to incorporate only what the laws of war allow), or merely by the president's constitutional authority (because, in my view, it is fair to understand the commander-in-chief authority itself to be defined and delimited by the laws of war—an admittedly more contestable proposition, but one that was fairly uncontroverted for the first 100+ years of practice under the Constitution). So, did the strikes violate the laws of war? Here, I'm decidedly outside my area of expertise. I would note, however, that the inquiry itself raises at least three distinct questions:
a. Deborah's question: Can enemies be targeted "anytime, anywhere"? Ayro, Deborah writes, appears to have been minding his own business, far from any traditional field of "armed conflict," probably asleep in his bed. I don't know whether this is problematic under the laws of war. I would think not—subject to the principle of proportionality, mentioned below—but I defer to others with far more knowledge on that question.
b. Proportionality: Under the laws of war, even attacks directed at military targets are prohibited if they “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” The strike killed not only Ayro, but also between eight and two dozen other people, some of them apparently civilians. A violation of the principle of proportionality? Not according to the Pentagon, which appears to concede the applicability of the rule: "As a general rule, U.S. planners seek to minimize any affect of such strikes in civilians, a U.S. Central Command official said, noting that in many cases, planners abort a strike rather than endanger civilians."
c. Jus ad bellum: Diane argues that the strike itself might be unlawful in a more fundamental way, because it was undertaken without approval of the U.N. Security Council, arguably in violation of the U.N. Charter (a treaty to which the U.S. is a party). I'm not so sure, for two reasons in addition to the self-defense theories that Diane discusses. For one thing, to the extent the AUMF authorized the attack, it might be viewed as a later-enacted statute that takes precedence over the treaty: That is to say, Congress might be said to have authorized uses of force that are neither approved by the Security Council nor otherwise permissible under the charter. (I need to think about this question further, however.) But even under the charter itself, it's not clear that this is the sort of action that requires Security Council approval. Article 2(4) provides that "[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." This strike, which the Somali government presumably welcomed, did not appear to be against the territorial integrity or political independence of Somalia.
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The Genetic Information Nondiscrimination Act, which bans certain types of genetic discrimination by employers and insurers, passed the House by a vote of 414 to one, and the Senate by a vote of 95 to zero. That means it's a good idea, right? Wrong.
Suppose an insurance company wants to offer a policy capped at $10,000 over a year. It has two types of potential clients: high-risk types who have a 0.05 risk of suffering a $10,000 injury and low-risk types who have a 0.01 risk of suffering a $10,000 injury. In expected terms, the high-risk types cost the insurer $500 each, and the low-risk types cost the insurer $100 each.
Consider the following question. If the insurance company can distinguish potential clients on the basis of easily visible markers (such as age), do you think it should be able to offer an expensive policy for high-risk types ($500) and a cheap policy for low-risk types ($100)?
If the insurer can do this, then everyone gets insurance who wants it. If the insurer can't do this, then fewer people will. The insurer can't offer policies for $100, for then the high-risk types will snatch them up, and the insurer, receiving $100 and paying $500 per person, will go out of business. If it offers policies for, say, $250—the average cost for the two types—the business will still probably not be sustainable. All or nearly all the high-risk types will buy the policy, while many low-risk types will be reluctant to pay so much for insurance against a low risk. The average cost will thus rise above $250, while receipts will continue to be $250 per person. Perhaps the insurer will offer only $500 policies, in which case half the population—the low-risk types—must go without insurance that they desire.
Most people agree that insurers should be able to discriminate on the basis of risk. We don't expect a 25-year-old to pay the same premium for life insurance that a 90-year-old must pay.
Suppose, then, that the types cannot be distinguished on the basis of a visible marker, but a simple checkup with a doctor will determine which type a person belongs to, perhaps based on a blood test that determines whether the person currently has a dangerous disease. Should the insurance company be permitted to offer the cheap $100 insurance policy only to people who obtain a doctor's certification that they belong to the low-risk group? If you think that insurance companies should be able to discriminate on the basis of visible markers such as age, you ought to think that they should be able to discriminate on the basis of doctors' certifications. If the insurance company should be able to deny insurance to a person visibly dying from a disease, then it should be able to deny insurance to a nonvisibly dying person on the basis of a blood test. There is no morally relevant distinction between looking at the person's outer shell and looking at his blood under a microscope.
Suppose, now, that a person's risk type is based not on a simple blood test that determines whether he is infected with a particular disease, but on a genetic test that determines whether he has a greater than normal susceptibility to a particular disease. Should the insurance company be permitted to offer the cheap insurance policy only to people who obtain a doctor's certification that a genetic test shows that they belong to the low-risk group? If you think that insurers should be able to discriminate on the basis of visible markers and on the basis of simple doctors' tests for the presence of dangerous diseases, then you should think they should be able to discriminate on the basis of genetic tests. There is no morally relevant distinction between looking at a person's blood for the evidence of infection and looking at his DNA for evidence of susceptibility to a disease.
Or, at least, none that I can find. The only argument in favor of banning genetic discrimination is that employers and others "misuse" genetic information. If this is true, then misuse of genetic information should be banned, not the proper use of genetic information for the purpose of assigning people to different risk pools. And if genetic information can help determine whether a person is suitable for a particular job, perhaps one that is dangerous for some types of people but not others, then it should not be considered misuse for employers to make hiring and job-assignment decisions on the basis of that information—no more than taking into account that person's visible physical abilities such as strength.
Another concern is that Americans are refusing to take genetic tests because they fear that their test results will be used against them by insurance companies and employers. But this is like saying that we shouldn't let insurers condition insurance on a visit to the doctor's office because then Americans would refuse to see the doctor, lest health information be used against them. The opposite is more likely. As genetic tests improve, insurers would require customers to take the tests if they want to purchase the cheap, low-risk-type policies. People would have to undergo genetic tests, just as today they have to visit the doctor if they want insurance.
The only explanation for the enthusiasm for GINA is that there is an inchoate feeling among people that there is something wrong with the way the insurance market operates. After all, as long as insurance is permitted, insurers will offer cheaper rates to lower-risk people, which seems unfair to higher-risk people, especially those who are high-risk because of bad luck in the genetic lottery rather than because of a choice to pursue high-risk activities like motorcycle riding.
But this is like saying that it is unfair for employers to offer higher salaries to people who are talented, and whose talent can be traced, as it almost always can, to a lucky outcome in the genetic lottery. After GINA, employers can still discriminate against a person whose genes have bestowed him with a bad smell, awkward social skills, or a weak grasp of arithmetic. GINA does not ban discrimination on the basis of genetic information. GINA bans only discrimination on the basis of genetic information that has not yet manifested itself in observable characteristics or behaviors but that is likely to in the future. There is no sense in this distinction.
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Justice Scalia continued his media tour this weekend with an appearance on Q&A, C-SPAN's weekly interview series. It is one of the more insightful and interesting Scalia interviews that I've seen, which isn't all that surprising given that Brian Lamb was his interrogator.
My favorite part: Lamb replayed parts of a 1986 interview with Scalia, back when he still was a judge at the U.S. Court of Appeals for the D.C. Circuit. Scalia praised the quality of argument regularly offered by attorneys in cases involving typical D.C. Circuit fare—energy cases, FCC cases, labor cases. Reacting to that clip, Scalia discussed the difference between the D.C. Circuit's more specialized bar and the Supreme Court's general practice and concluded, "Overall, I think the quality was probably better on the D.C. Circuit."
For what it's worth, I appreciate Justice Scalia's sentiment. I once enjoyed the honor and privilege of clerking for the current chief judge, and I was struck by the quality of briefing and argument: The D.C. Circuit bar serves up a steady diet of administrative law cases, and while not all of the briefs I read were impressive (or even coherent), many of them were startlingly good. It takes true talent to transform indecipherable industry jargon and technical detail into an argument suitable for an audience of generalist judges (and clerks). Just about anyone can make a brief about the First Amendment interesting; it takes a true virtuoso to capture a clerk's attention for 50 pages of argument arising from an FCC decision. Those lawyers raise a high bar for the rest of us.
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In
Hamdan v. Rumsfeld (2006), a majority of the Supreme Court reaffirmed that in making reference to terms that are part and parcel of the international laws respecting the conduct of war
—to cite the Latin phrase still current,
jus in bello—Congress intended courts to look to that body of law in interpreting the statutory terms.
In considering whether the AUMF allows strikes against Somalia, the pertinent international laws concern not the conduct of war but the act of going to war; that is
, jus ad bellum. Since the adoption of the
U.N. Charter in 1945, that law renders a nation-state's use of force illegal, as a matter of international law, unless it is undertaken with the approval of the
U.N. Security Council. The charter permits only one exception, set forth in Article 51:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
Presumably, the United States would argue that the Somalia strikes are permissible as exercises of "the inherent right of individual or collective self-defence." But that claim would not end the story. Do the words that follow—"if an armed attack occurs"—mean that the attack already must have occurred, and if so, do the attacks of Sept. 11, 2001, attributed to an al-Qaida leader then in Afghanistan, not Somalia, so satisfy this requirement that the United States may go after a different leader in a different country, nearly seven years after that other attack?
Let's assume, in the alternative, that the United States may attack before it is attacked to defend itself before it is so disabled that it cannot engage in self-defense. This seems reasonable; after all, the law generally allows a person who has a gun pointed at her to shoot first and not to wait for the assailant to shoot her before she may act to defend herself. Indeed, this reasoning is enshrined in international law as "anticipatory self-defense," a concept established more than 170 years ago during the
Caroline incident between the United States and Britain.
Accepting "anticipatory self-defense" as law does not end the inquiry, however. The exchange of letters that ended the
Caroline dispute indicate conditions upon this right
—conditions of "necessity" and "proportionality" that may be found in other doctrines relating to the use of force, such as the old doctrine of
reprisal, as our colleague, Notre Dame Law Professor
Mary Ellen O'Connell, explains
here. Within those two terms may be found a rule that use of force in self-defense must be genuinely necessary, that the threat must be imminent, that there must be no opportunity for deliberation or negotiation, and further that the use of force must be proportionate to the threat, so that any permissible strike goes after only the person(s) or camp(s) that are a menace, and avoids as much as possible any damage to any innocent person or any uninvolved item of property.
The U.S. Congress ought to be presumed to understand these well-settled principles—principles that derive from a dispute involving the United States itself. Thus its decision explicitly to require in the AUMF use of force be both "necessary" and "appropriate"—words nearly identical to the international law doctrine's "necessity" and "proportionate"—ought to be understood as limiting post-9/11 use of force to that which meets these requirements.
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Well, Phil, two days out from the latest account of another U.S. missile strike in Somalia, and judging from the relative silence on the blogs, I take it pretty much everyone agrees with you that the president's authority for the strike falls within the "necessary and appropriate" force Congress intended in its September 2001 authorization to use military force (AUMF) against al-Qaida. Indeed, I'd bet that's what a U.S. court would have to say about it in the unlikely event it ever came up, even if it turned out this guy turned out not to be associated with al-Qaida after all. Not necessarily a happy picture, but I'm guessing where things stand under the current state of domestic law.
But that should hardly be the end of the discussion. Whatever force is "necessary and appropriate" is a troublingly vague notion for understanding the limits on what kind of power Congress actually wanted to delegate the president in a global campaign against the people, organizations, or groups who aided the attacks of 9/11. Most folks seemed to think the AUMF didn't extend to giving the president the authority to engage in domestic wiretapping without a warrant (contrary to the administration's suggestion). The Supreme Court bought that the AUMF did extend to cover some U.S. detention operations, at least to detain those picked up by U.S. military on the battlefield in Afghanistan. But until Congress gets a bit more specific, I'm guessing we'll be having this debate for a while (with the executive's position getting weaker the farther in time we get from 9/11).
In any case, the legality of the strike under the AUMF is only part of the question. There's also the pesky issue of whether it's a law-of-war problem to target an individual who, at the moment of attack at least, appears to have been minding his own business, far from any traditional field of "armed conflict." If we find out someone's been contributing money to an organization that turns out to be affiliated with an organization we've identified as terrorist, could we bomb them in their sleep at anytime, anywhere they are in the world? I've no beef with those who say concepts like "armed conflict" and "direct participation in hostilities" aren't the most clearly defined aspects of the law of war. But even if we give the administration the benefit of the doubt as operating within the "necessary and proper" boundaries of congressional authorization under U.S. law, what exactly is the limiting principle they have in mind under the law of war? And to take it a final step, if it's not quite legal under the law of war, can it really be part of the "appropriate" force Congress had in mind? At least some on the Supreme Court have recognized in recent cases that this kind of international law can and should inform the interpretation of statutory mandates in the area.
Marty, Diane—any enlightenment to shed?
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The Strasbourg, France-based court heard argument Wednesday in the case of 71-year-old
Lucien Léger. Having received
une réclusion perpétuelle, a life sentence, in 1966, he was France's longest-serving inmate, with 41 years in prison; indeed, on account of repeated refusals of his requests for parole, his was, in effect, a sentence of "LWOP," or life without parole.
LeMonde reported that Léger's 2002 bid for
ECHR relief had been
rejected in 2006, on the ground that "imprisonment for life does not constitute inhuman treatment if the person is not deprived of all hope of obtaining adjustment of the penalty"
—an adjustment that Léger had secured with his conditional release in 2005, while his ECHR case was pending. Two ECHR judges dissented from that decision, however, among them the French judge,
Jean-Paul Costa, now the court's president. Eventually the Court agreed to rehear the case by means of its
Grand Chamber.
And so on Wednesday, the Court heard Léger's case (
Web-cast here). "Dressed entirely in black, clasping his hands together and occasionally holding a pencil," wrote
LeMonde's Alain Salles, Léger "listened patiently to the arguments, in which he did not have the right to take part." He displayed "signs of denial," and his attorney,
Jean-Jacques de Felice, objected outright, "when
Anne-Françoise Tissier, the government's lawyer, said that his sentence was justified because he'd shown no remorse" for the crime of conviction, murder of an 11-year-old child. But de Felice reserved his greatest condemnation for the sentence itself:
'Society has the right to judge and to imprison him, but not the right to kill in him, bit by bit, all hope of freedom, all prospect of return to society.'
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Professor Sam Bagenstos kindly responded to my post on Brennan's "accidental" rise to the Supreme Court:
There are certainly elements of the mistaken-identity story that are true, but I don't think Regnery is right that Brownell thought Brennan was a conservative. Herbert Brownell is widely acknowledged as having been largely responsible for President Eisenhower's appointment of so many liberal (at least on race) judges in the South. See, e.g., his obituary.
Good point. But Sam's disagreement may be less with Regnery than it is with my paraphrasing of Regnery. He wrote that "New York liberal Republicans were desperate to stop [Eisenhower's "first choice," John Danaher] who, they knew would try to return the Court to its constitutional place."
The key, though, was that Brownell wanted someone who, while closer to the center than Danaher, would meet Eisenhower's requirement that the nominee be a "judicial conservative."
That said, as much as I enjoy Regnery's version, I'm not yet convinced that it's actually accurate (or, as I suggested in my first post, it may well be "too good to be true"). In Pursuit of Justices, David Yalof is severely critical of that account, relying in part on Brennan's biographer's review of Brennan's files. By contrast, Regnery cites only an article in Chronicles magazine—hardly a first-rate digest of historical research.
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The LAPD announced yesterday that after investigating 320 claims of racial profiling, not one could be sustained. The police commission is incredulous—“I find it baffling that we have these zeros.” said one commissioner. But actually, it’s not baffling at all.
The Los Angeles Times reports that the investigations concerned “allegations that officers stopped, questioned or otherwise confronted someone solely because of the person’s race.” I’m not at all baffled that none of the incidents investigated involved profiling, so defined. If profiling means stopping someone solely because of race, I’m willing to bet it almost never happens. But it’s well-documented that police do consider race—along with other factors such as age, sex, grooming, attires, demeanor, context, and behavior—when making traffic and pedestrian stops. I suspect the commissioner quoted thinks any use of race counts as “profiling”—that’s basically the position of the ACLU and other civil rights organizations. But the police, not surprisingly, employ a narrower definition.
The problem with the narrow definition is that it doesn’t encompass the problem—the police can be as biased as a lynch mob and still never “profile.” The problem with the broader definition is it hampers legitimate police methods. If the police know a racially exclusive gang is active in a certain part of town, do we really want them to ignore race entirely when patrolling there? What if the gang is on a crime spree at the time? What if they just robbed a bank and several witnesses describe them to police? At some point, the line between “profiling” and a manhunt for specific criminals, whose race is known, gets hard to draw.
As I’ve argued in my book, The Race Card, the reason racial profiling is one issue that almost everyone can agree on (we’re against it) is that no one bothers to define profiling very well. In fact, there’s almost a silent conspiracy among civil rights activists, government officials, and law enforcement to keep the definition as murky as possible. The activists demand an end to “profiling”—meaning any use of race in traffic stops; in response, police promise not to “profile”—meaning stopping people based solely on the basis of race. The activists get a symbolic victory; the police get a PR victory—nothing changes. Like an international treaty, the best way to get to a consensus is to let everyone interpret the key terms to suit themselves. Until, of course, it comes time to enforce the treaty …
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I testified yesterday on "Secret Law and the Threat to Democratic and Accountable Government" before the Senate judiciary committee's subcommittee on the Constitution. The hearing, chaired by Sen. Feingold, covered the range of the Bush administration's "secret law." I talked primarily about the terrible harm of secret (and profoundly flawed) opinions of the Office of Legal Counsel.
Briefly, I told the committee that the central question is: "May OLC issue binding legal opinions that in essence tell the president and the executive branch that they need not comply with existing laws—and then not share those opinions and that legal reasoning with Congress or the American people? I would submit that clearly ... the answer to that question must be no." "This combination—the claimed authority not to comply with the law and to do so secretly—is a terrible abuse of power, without limits and without checks. It clearly is antithetical to our constitutional democracy." (My written testimony is here.)
OLC's Deputy Assistant Attorney General John Elwood denied there was any problem (at least, not since he joined the government in late 2005—he pointedly avoided talking about the John Yoo and other memos that came before). He said that he agrees with, and OLC now follows, the 10 "Principles to Guide the Office of Legal Counsel" co-authored by me and 18 other former OLC lawyers in response to the initially leaked OLC torture opinion. I said no, from what we can tell from what's public, they don't follow them all, and they certainly didn't in the Yoo years. Elwood also sparred with Sens. Feingold and Whitehouse, who were incredulous at his claims that the Bush administration, in fact, is keeping Congress briefed and informed about OLC's legal conclusions and reasoning (even if it won't always release its opinions).
Republican ranking member Sam Brownback, Elwood, and Republican-invited witness Brad Berenson (former associate counsel to President Bush) took issue even with the term "secret law," claiming that OLC simply interprets laws for the government, and doesn't make law that governs the lives of private persons. You can well imagine the responses to that claim—government torture and spying don't affect the lives of people!—from me and the other witnesses invited by the Ds (Steven Aftergood of the Federation of American Scientists, Heidi Kitrosser of University of Minnesota Law School, and J. William Leonard, former director of the Information Security Oversight Office). (Also invited by the R's was David Rivkin.)
So far, all very predictable. Here is the most surprising and promising thing about the hearing: Berenson said he agreed with my central point that we have a problem with the Bush administration violating laws in secret (though he argued, and I disagreed, that on many national security matters only Congress and not the American people need to be notified). Even more notable, Berenson also agreed with my suggestion (building on a proposal from Professor Trevor Morrison) that perhaps Congress should enact legislation to require additional reporting, so that the executive branch has to tell Congress not only when it refuses to comply with a statute, but also when it (mis)interprets a statute by relying on the constitutional-avoidance doctrine. (A standard ploy, of course, by the Bush administration is to deny that it in fact is violating statutes, but instead claim it is interpreting them in order to avoid a conflict with Bush's sweeping and plainly incorrect views of his own constitutional powers.)
Berenson's agreement with my proposal led Sen. Brownback to turn to Sen. Feingold and say he would be interested in working with him to pursue the possibility of such legislation. Stay tuned ...
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A predawn American cruise-missile strike against the central Somalia town of Dhusamareb killed between 10 and 30 persons today. Military officials said publicly that the target was "a known al-Qaida target." Confidentially, military officials told the New York Times that the target was Aden Hashi Ayro, reportedly one of al-Qaida's top operatives in Africa and the leader of an Islamist group in Somalia called the Shebab.
On a listserv this morning, one expert on armed conflict and international law questioned whether this strike portended yet another broadening September 2001 "authorization for the use of military force." I think it does, and I'm at a loss to articulate any limiting principle on the geographic, spatial, temporal, or political scope of this nation's military efforts against al-Qaida.
I'm hardly the first to say it, but this highlights an important contrast between wars against states and wars against entities like al-Qaida. With the former, there is a limiting principle on the conflict. If the state ceases to be (such as Germany or Japan at the end of WWII), the war does, too. With the latter, there seems to be no limit. As al-Qaida evolves, morphs, grows, and franchises itself, so does the war, and so does any authorization for the use of force that is tied to the definition of al-Qaida.
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Suppose you want to lose 20 pounds. You've tried a number of diets, but you are as hefty as when you started. Fortunately, a new firm called StickK has a solution. You enter a self-commitment contract, under which you promise that you will lose (say) two pounds per week for 10 weeks. Each week you step on a scale under the eye of a third party, who then reports to StickK whether you have met your goal or not. If you fail, then StickK deducts $100 from your $1,000 deposit. (You can pick other amounts.) The theory is that the prospect of losing money will block your impulse to snatch an éclair as it passes by on the dessert cart. You can also enter StickK contracts to help you stop smoking, study in school, and go to the gym.
What happens to your money? StickK doesn't keep the $100; instead, it goes to a charity such as UNICEF. But here's the problem. As you eye that banana split, it might occur to you that if you resist temptation, a school's worth of impoverished children in Burkina Faso may be deprived of a week of nutritious lunches. Could you look in the mirror again if you starved these children so that you could lose some extra pounds? Do good by doing badly: Eat the banana split and save a family! StickK's incentive contract will work best for misanthropes who shudder at the thought that their hard-earned money might help the poor.
Fortunately, StickK's founders have thought of this problem, and so they offer soft-hearted customers the choice to designate an "anti-charity," a charity that you hate. They list Americans United for Life (for pro-choicers) and NARAL Pro-Choice America Foundation (for pro-lifers). The Educational Fund To Stop Gun Violence and the NRA. The Bush Library and the Clinton Library. You get the idea. If you hate Bush, then the image of him basking in his library at your expense should stimulate the gag reflex before that chocolate bar enters your mouth. (They don't list neo-Nazis or the Ku Klux Klan. People who hate racism will have to find some other way to get rid of that spare tire.)
Not everyone will meet his or her goals, and so money will flow into charities and anti-charities. In one possible world, we should expect more protests of abortion clinics that receive more subsidies; legislatures being swarmed by armies of pro- and anti-gun people; the Bush and Clinton libraries housed in magnificent edifices (perhaps they will even have books!). Surely it is odd that StickK harnesses people's charitable impulses for the sake of their narcissistic goals, resulting in a not-for-profit arms' race that will generate social waste. Wouldn't it be simpler for StickK's owners to pocket the forfeited deposits than to encourage customers to designate charities? However, there would be a catch. StickK's owners would also have to promise not to give their profits to popular charities, as this would reduce their customers' incentives to meet their goals. If you think that StickK's shareholders will turn over your deposit to impoverished children, then you won't be able to resist that slice of cheesecake. Instead, the shareholders would need to commit themselves to extravagant overconsumption, the more repulsive, the better. It is touching to think that they would have to abandon their favorite charities and any public-spirited activism, and commit themselves to hedonistic indulgence, for the sake of their customers' well-being.
However, one can't help wondering whether StickK will prove to be a boon to right-wing charities rather than a zero-sum game between offsetting charities. Suppose that the type of person likely to sign up with StickK will be young, professional, urban, and yes, left-leaning, which means that most of the designated anti-charities will be pro-gun, pro-life, and pro-Bush. If StickK catches on, we can expect a future of thin and healthy liberals who can no longer obtain abortions, and obese, chain-smoking conservatives who can own as many guns as they want.
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The Rev. Jeremiah Wright is not your perfect, textbook pastor. He doesn't just stand at the back of the church with innocuous and uninvolved welcomes and goodbyes.
But the perfect is the enemy of the good. Barack Obama's campaign has been all about showing us how to do good in an imperfect world. How to accept each other as we are, not how we would like each other to be.
Personally, I don't believe U.S. government is killing my African-American brothers by spreading a virulent disease. Nor would I characterize the actions of the United States in Iraq, which I think deeply flawed, as terrorist. But then, I have never felt entirely comfortable with any of the explanations for the murders of John F. Kennedy or Robert Kennedy or Martin Luther King Jr. Some things are unexplained in life, and sometimes, despite all evidence, we indulge our own narratives to see us through. In her thoughtful column in the Los Angeles Times, Rosa Brooks reminds us that there are significant numbers of black Americans who, because of the Tuskegee experiments where largely black sharecroppers served as human guinea pigs in public health experimentation, do not immediately see the Rev. Wright's comments about AIDS as paranoia.
Even if Sen. Obama is not prepared to rationalize the Rev. Wright's suspicions, he should forgive him. Yes, it's important to talk about the economy and health care and ending the war, but without reconciliation with the Rev. Wright, the campaign will be off-kilter. The Obama campaign has always been more about the Christian ethic of love of neighbor than wonkish policy. Whatever voice Jeremiah Wright used in his sermons, he successfully strengthened that aspect of Barack Obama's gifted personality. To disown or to separate from Jeremiah Wright is to distance himself from himself. It can't be done, and in any event, it's politically unwise.
Some have written that Jeremiah Wright is the missing father figure in Sen. Obama's life. I'm no psychologist, but that makes sense. I know at times I have embarrassed my sons. My father, who is nearing 86 and has all the endearing and frustrating qualities of that age, at times has embarrassed me. It is what fathers and sons do. Barack Obama might have known that if his Kenyan father had not left too soon. More importantly, it would have been easier for him to recognize that only the mean-spirited or small-minded seeking political advantage would insist upon a division between father and son.
No, Sen. Obama, you don't have to distance yourself from your lifelong friend to be elected president of the United States. It is wrong for any of us to ask you to do so, and it would be a mistake for you to yield. So, call him up. Invite him out to Indiana. Kick back together with the Hoosiers, and if you have the time, stop in to see another Father—Theodore Hesburgh, C.S.C., Notre Dame's president emeritus and inspirational civil rights leader. The three of you are sharing a historic journey, and there's no good reason for anyone to sit at the back of the bus or be thrown under it.