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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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continue reading at Balkinization ...
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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.