Convictions

The Indefensible Warren Court?

2008-05-13T03:13:00Z

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 his latest post, where he wonders out loud 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 short sighted)? 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 only had 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 decisionmaking, 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 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.

Is Liberal Constitutionalism "More Honest" Than Justice Scalia?

2008-05-13T02:32:00Z

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.

The Rehnquist-Jackson Letters

2008-05-13T00:01:00Z

I was pleased to open the Legal Times this morning [sub. req'd] 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 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 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.

Up the Road From Scottsboro, Justice Stevens Speaks Out Against Capital Punishment

2008-05-12T18:36:00Z

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."

Stevens reaffirmed that conclusion Friday, telling jurists assembled in Chattanooga for the 6th Circuit Judicial Conference that when Eight Belles collapsed after placing second in the May 3 Kentucky Derby and was put to death on the track, "'I had checked the procedure they used to kill the horse.'" He discovered that Kentucky forbids using on animals one of the three drugs frequently employed in lethal-injection executions. According to Monica Mercer of the Chattanooga Times Free Press, Stevens "suggested" that the doomed filly "had probably experienced a more humane death than those who die on death row."

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)

Might It Be a Sound Bite Thing?

2008-05-12T18:26:00Z

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"?

Selling Justice

2008-05-12T16:25:00Z

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.

What Liberal Constitutionalism Has Going for It

2008-05-12T13:00:00Z

I would amend Orin Kerr's remarks about liberal constitutionalism slightly. There are three things liberal constitutionalism has going for it, three reasons why it is superior to the snake oil that Justice Scalia has recently been selling in public.

First, liberal constitutionalism is committed to protecting people's rights—rights that most Americans have come to take for granted, including freedom of speech and equality for blacks and for women. Justice Scalia's originalism can't account for many of these results except as mistakes made by previous judges that we are stuck with. Orin rightly emphasizes the power of the populist belief that We the People decide how we will govern ourselves. I would add that belief in basic rights is every bit as populist—and deeply rooted in American traditions—as belief in majority rule. The Declaration speaks of equality and inalienable rights even before it talks about the consent of the governed. It tells us that protecting rights is why governments are formed. We live in a rights culture; people don't like it when their rights are abridged. And history shows that Americans will fight for their rights if they believe that governments threaten to abridge them. Protection of rights and consent of the governed are two key ideas of the Declaration. We must keep both in mind in understanding why our Constitution is great.

continue reading at Balkinization ...

Selling Liberal Constitutionalism

2008-05-12T04:32:00Z

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.

State Secrets

2008-05-12T02:22:00Z

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.

RE: The Salesmanship of Scalia

2008-05-12T01:11:00Z

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.

The Salesmanship of Justice Scalia

2008-05-10T18:39:00Z

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?

John McCain and Partisan Entrenchment

2008-05-08T12:10:00Z

In contrast to Andy Koppelman, Steve Griffin, and Doug Kmiec, 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:

continue reading at Balkinization ...

Boy, That Doug Kmiec Is One Smart Cookie

2008-05-08T04:58:00Z

There's more than just agreement between John McCain and Doug Kmiec; McCain and Obama have points of constitutional agreement as well. Exploring that common ground is far preferrable than McCain's giving unrefined insult to federal judges or just taking a swipe at his Democratic opponent for President....(read more)

Questioning Doug Kmiec on the McCain Speech

2008-05-07T19:55:00Z

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.

Judge Bait

2008-05-07T19:26:00Z

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.

Texas Judge Rebuffs Mexico's Lawyer, Sets Execution Date in Consular Access Treaty Case

2008-05-07T10:05:00Z

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."

Their arguments did not sway Judge Cosper, who reportedly "kept a hangman's noose over her office door" when she was a "death penalty prosecutor" in the Office of the Harris County District Attorney. At this week's hearing, Cosper, elected to the bench in 1992, denied defendant's request to let the legal adviser to the Mexico's foreign minister speak with these words:

"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.

(Cross-posted on IntLawGrrls blog)

McCain Injudiciously Attacks Judges and the Constitution; Dems Wrongly Attack Obama's Ideal

2008-05-07T07:44:00Z

The media missed the story on the McCain judges speech and the Democrats are bound and determined to snatch defeat from the jaws of Obama's likely nomination victory....(read more)

Oops!

2008-05-06T17:51:00Z

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?

Mildred Loving Speaks

2008-05-06T15:24:00Z

Mildred Loving, who along with her husband, Richard, was a plaintiff in the 1967 case of Loving v. Virginia, passed away May 2. Her obituary is here. In Loving v. Virginia, the Supreme Court held that laws banning interracial marriage violated the Equal Protection Clause both because they violated principles of racial equality and because they abridged a fundamental right to marry. The case is doctrinally important for many reasons, including the court's recognition that the Equal Protection Clause protects certain fundamental rights, for its recognition of a fundamental right to marry, for its application of strict scrutiny to strike down racial classifications (an idea first raised in the Korematsu decision, which had nevertheless upheld the classification), and for its embrace of an anti-subordination as well as an an anti-classification model of race equality.

continue reading at Balkinization ...

McCain Speech on Judges

2008-05-06T14:49:00Z

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?