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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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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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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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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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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?