July 09, 2005

He Needed Killin'

by PG

While Senators who joined the advice-and-consent House since Breyer's advent eleven years are prepping on the whole confirmation business, security is being heightened to prevent leaks about marijuana smoke and sexual harassment accusations. In this season of SCOTUS retirements, people commenting on the political and legal scene are trying to come up with measures of what makes a good or bad justice.

A favorite term among liberals is "mainstream," a word that was used to describe what President Bush's appeals court nominees were not in. Presumably the "mainstream" refers to what the democratic majority of the American people would prefer, and thus in a sense the term "activist," if one uses it to mean "judge who overturns the preferences of the American people as expressed in Congressional legislation," is another way to say "not in the mainstream."

While I initially had the same reaction as Will Baude to Gewirtz 'n' Golder's excluding invalidated state legislation from their survey, it makes sense to look only at Congressional legislation if you only want to see how the Supreme Court deals with another nationwide branch of government. (Also, to say in overturning the Violence Against Women Act the Supreme Court "is simply deferring to a different democratic branch of government" seems questionable considering states' preferences regarding VAWA, according to the TNR piece Will linked here.)

Certainly the impression I got from the G&G oped was that they were trying to discourage the use of the term "activist": "We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions and the judge's underlying constitutional views, which may inspire more or fewer invalidations." If you accuse a judge of being an activist, someone else will say, "But he needed killin'." ("He" meaning an unconstitutional law; "killin'" meaning overturnin'.) The only people who should use the term "activist" as a way of deeming a judge to be a bad one are those who want Marbury v. Madison dead.

Ex Poster Helvedius tries to resurrect the usefulness of the term activist by pointing out how it is preferable to the word "moderate." "Moderate" is a description of the political outcomes of one's decision-making process, and while it is of course useful to politicians and interest groups, it is an absurd term for people in the legal profession. Moreover, to use political terms actually does a disservice to the justices.

It was hardly "conservative" of Scalia to give the accused a leg up by requiring that witnesses against them must give their testimony in open court. This will result in many prosecutions' falling apart because witnesses fear facing the defendant, as with cases involving the Mafia, domestic violence, child abuse and molestation. I doubt that Scalia feels much fondness for criminals, particularly if there's any opportunity to have them executed. But because the text of the 6th Amendment declares that "the accused shall enjoy the right ... to be confronted with the witnesses against him," he penned an opinion, joined by seven other justices (most of whom are less inclined to stringing folks up), that testimony must be given only when the accused would be confronted with the people giving it.

Crawford v. Washington overturned Ohio v. Roberts (1980), and Rehnquist, in a concurrence joined by O'Connor, decried Scalia's opinion for the upset:

I believe that the Court's adoption of a new interpretation of the Confrontation Clause is not backed by sufficiently persuasive reasoning to overrule long-established precedent. Its decision casts a mantle of uncertainty over future criminal trials in both federal and state courts, and is by no means necessary to decide the present case.
However, "activist" is only marginally better than the political terms. Helvedius quotes from an interview with Robert Bork to make the case that O'Connor and Kennedy are "activists," with particular reference to this sentence: "The question is, those judges who depart from the actual Constitution, and those who try to stick to the actual Constitution ... I would call [the former] activist."

Couldn't Bork just say what he means and declare that in O'Connor's and Kennedy's departures from the "actual Constitution," they were failing to be originalist or textualist or whatever philosophy of jurisprudence he thinks they should have applied? The word "activist" is bullshit because, as umpteen people have noted at this point, it frequently just becomes another word for "not what I would have done."

Activist, as reference to the dictionary (dear God, I'm becoming a textualist) would reveal, has no obvious connection to judicial work. What conservatives want to imply with the term is that judges who make a decision with which they disagree are engaged in activism, i.e. "taking direct and militant action to achieve a political or social goal," rather than disinterested judging. People at Bork's level therefore would consider that a decision different from the one that they would have made, and that results in a political outcome that they darkly suspect the alleged activist to favor, to be "activist."

But this is a lousy way to describe what the justices are doing. Take the Raich decision. Stevens, writing in the majority to let cancerous potsmokers be dragged off to federal prison in order to preserve the federal government's Wickard commerce clause powers, recommends democratic action to change the political outcome of his judicial decision. O'Connor dissents against this use of the commerce clause even though she herself would not have voted to permit medical marijuana; her work as a judge goes against her preferences as a political being.

Even if Bork's meaning for "activist" generally worked, the term has been hopelessly wrecked by his less intelligent political allies, who declared both the state and federal judiciary to be "activist" for failing to keep Teresa Schiavo on life support. That the law gives power of attorney to the spouse was no barrier to such pro-life activists' clamor about how the judges had screwed up.

A quick note regarding Matthew Yglesias's remark, "When an issue is litigated for the first time, the best way to preserve [the rule of law] is to do the best one can to stick to the original understanding of what the law said." Probably with raised eyebrows, Will restates this as "In other words, Yglesias endorses a regime of strong precedent followed by originalism. Are we all originalists now?"

Certainly the praise Matt implicitly gives to Lawrence v. Texas seems to conflict with what most people understand originalism to dictate; the original understanding of the Due Process Clause of the 14th Amendment, in all probability, did not include the liberty of private sexual conduct. Although, because such matters were for the states, there never was anything paralleling a Congressional vote to maintain school segregation in DC, to give us some idea of what the people who brought us the 14th Amendment meant by it with regard to sexual conduct.

However, I think that some explanation of this apparent contradiction might be found in looking at Scalia's deliberate misunderstanding in his Lawrence dissent, when he scorned his colleagues for saying, "Liberty finds no refuge in a jurisprudence of doubt."

That was the Court's sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U. S. 113 (1973). The Court's response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U. S. 186 (1986), is very different. The need for stability and certainty presents no barrier.
As Scalia ignored in the interests of scoring a rhetorical point, "stability and certainty" with regard to Bowers would be detrimental to liberty, unless the kind of liberty our Constitution is intended to protect is the liberty of the government to enforce laws. I don't think the Founders really worried as much about the government's freedom as they did about the people's. The 6th Amendment is all over the rights of the accused, but quite silent about the rights of the prosecutor.

In writing, "What we want from judges is the rule of law -- the combination of stability and predictability that allows people to be reasonably certain about what is and is not illegal," Matt may be trying to say that we need stability in the rights the Court already has declared to be Constitutionally required. So that if we have been conducting our sexual and reproductive health affairs on the assumption that Roe will hold, then the Court overturns it and South Dakota's automatic abortion prohibition* kicks in, this could have a tremendously negative impact due to actions people already have taken.

Or, to choose a less controversial example, suppose the Court declares that the Free Exercise clause no longer protects Amish teenagers from the truant officer. Amish people who live in Wisconsin rather than a state less inclined to enforce school attendance laws against them, and who do so on Yoder's assurance that they were free to take the kids out of school at 13, now have to re-arrange their lives drastically because of the sudden flipflop in policy.

I think one can argue coherently that stare decisis is more necessary in the preservation of liberties than in the preservation of restrictions on liberty.

* According to the Life Legal Defense Fund, South Dakota has a unique "trigger" law saying abortion will be banned there, except to save the pregnant woman's life, effective "on the date that the states are recognized by the U.S. Supreme Court to have the authority to prohibit abortion at all stages of pregnancy."

July 9, 2005 02:54 AM | TrackBack

There is much to take issue with in this post, but for now I will limit myself to the last bit. The argument that we should have a one-way stare decisis ratchet whereby pro-liberty decisions can stay but anti-liberty ones must go is intriguing, but . . . odd. First off, is there an indication that the founders desire to protect rights nowhere enumerated in the constitution and basically unprotected for the first century or so of constitutional existence was greater than their desire to protect the rights of democratic change and self-determination? (If so, query why we should bother with a stare decisis ratchet rather than just announcing that the pro-liberty decisions are just right in the first place.)

Second, how to define "liberty" coherently. I take it that many people thought that the segregation statutes in Plessy *protected* one's liberty to ride trains free of meeting people of a disfavored race, or that the grandparent-visitation statutes struck down in trozel *protected* the rights of families to associate with one another, or that (natch) abortion statutes *protected* the rights of fetuses. One can disagree about these characterizations of course, but the disagreement is sufficiently thick that the stare decisis inquiry is unhelpful at best.

Posted by: Will Baude at July 9, 2005 11:53 AM

If so, query why we should bother with a stare decisis ratchet rather than just announcing that the pro-liberty decisions are just right in the first place.

The "protect the 'rule of law'" argument that I thought Matt was making, which is based on people's need to know the law in order to organize their lives so as to comply with it, hardly has much application to fetuses, unless you subscribe to the theory that they are currently souls in a celestial waiting room and permitting abortion screws up their plans to be in a body. Pro-liberty decisions that violate stare decisis are less burdensome on individuals than decisions that overturn a pro-liberty precedent. Stare decisis is considered a value, albeit not necessarily the preeminent value, because of stability. A stability that permits a certain freedom thus is considered preferable to a stability that constrains it.

From what I understand, the state segregation statute upheld in Plessy forced white people and black people into separate cars, regardless of their own preferences or even the preferences of the train owners (presumably the statute was necessary only because otherwise the train owners would promiscuously mix all races). So it doesn't seem like a very freedom-loving law.

A better argument would be to say that the Civil Rights Act of 1964 was an anti-liberty statute because it forced non state actors to give up their liberty to discriminate. Some racist now is forced to accept people of color as customers, whereas if he'd known that CRA'64 was coming, he would have invested in mutual funds instead of a public accommodation business. However, I don't think there was a stare decisis problem here, because CRA was based on the commerce clause, and by 1964 Wickard had come down already, so SCOTUS could just shrug and say, "By the Power of Grayskull -- er, Commerce -- Congress has the power."

Joking aside, I do take your point that "liberty" is an unclear term and that liberties can conflict; my nose, your fist, etc. Troxel is an excellent example, where the Court held that the liberty of the parent to control her child's upbringing beats out the liberty of the grandparent to horn in more than the parent wants. (Though if we thought that our kids' grandparents would be able to have such power, we'd probably be more careful of having kids with people who had scary parents.)

Posted by: PG at July 9, 2005 11:47 PM

The idea of the "segregation" liberty is this: Just as the Amish in a post-Yoder world may live someplace while relying on their ability to be free of public-school-indoctrination for their children, the racists in a post-Plessy world live someplace while relying on their ability to be free of having to rub shoulders with blacks on the train. Now Plessy is clearly wrongly decided, but why is racist reliance worth less?

All of this seems too-much premised on the notion that the underlying freedoms are good in and of themselves. I agree, but if that's going to have consequences for constitutional adjudication, it should do so at the merits stage, not in some ill-defined region where pro-liberty-but-wrong decisions get to stay while anti-liberty-but-wrong decisions have to go. This ratchet only makes sense if you like where it takes you.

For another example of the ill-definedness of liberty, what do you do with the commerce-clause-cases and the vouchers cases? I take it that each side thinks its decision is pro-liberty, so where does the stare decisis axe fall?

Posted by: Will Baude at July 10, 2005 12:06 PM

Hey, I could have sworn I'd left a comment last night. Oh well.

I don't consider pro-liberty stare decisis to be an all-embracing way to decide cases, by any means. Rather, it's an attempt to think about the rule of law and how people organize their lives around the assumption of having certain liberties, and how the Court's giving the state the right to regulate against those liberties is problematic. The stare decisis aspect is relevant because saying that the Court merely should be pro-liberty -- should, for example, declare that government cannot prohibit snorting cocaine -- doesn't have much to do with the rule of law argument because cocaine snorting never has been a freedom around which people could construct their lives.

Plessy seems to be a conflict of liberties; the liberty to be a racist conflicts with the liberty of those who wish to intermingle with people of other races. Ditto vouchers cases in which free exercise to use vouchers for sectarian schools conflicts with the establishment clause freedom from having to support religion with one's tax dollars. In conflicts of liberty, one cannot settle the question with an appeal to liberty because the retort is "Whose liberty?"

However, not all cases are conflicts of liberty, just as not all cases are much related to liberty at all. The commerce clause case of Raich, for example, was not a question of the right to medical marijuana -- which the Court already had declared nonexistent -- but whether state or federal law should govern. In the majority opinion's formulation of Yoder, the only liberty at issue was that of the Amish to maintain their community (although the dissent claimed that the children's future liberty to flourish outside their community was in conflict with this). In the standard SCOTUS framing of abortion cases, the state's regulation of abortion conflicts with the woman's liberty to have one, which is how it ends up with Griswold ancestry (state's regulation vs. liberty to use contraception). If the 14th Amendment is expanded to include fetuses, abortion would be argued legally on different grounds, but at the moment it's regulation vs. liberty, not liberty vs. liberty.

Posted by: PG at July 11, 2005 08:51 AM

But the justification for pro-liberty-stare-decisis on reliance grounds is rather circular. People will organize their lives around a Court-protected right to, say, abort-their-fetuses-no-matter-which-state-they-live-in-unless-they-can't-get-parental-or-judicial-permission or raise-their-children-without-any-fear-that-their-grandparents-will-be-able-to-visit-the-kids-if-they-die or live-free-of-irrational-zoning-restrictions only if the Court tells them (credibly) that they can rely on these things even when they become implausible under first principles.

If not, people will understand, as is our tradition, that even declarations of meaning and truth by the U.S. Supreme Court can be erroneous, and that they should rely on what the Constitution says, rather than what the Court says it says. After all, the vast majority of functional rights in this country are contingent on state and federal statutes which can and do change. This vast potential for uncertainty (with relevant constitutional backstops, e.g. the right against ex post facto laws, bills of attainder, &c.) does not seem to have stopped any of us from going merrily about our lives.

All of which is to say, yes, of course people's liberties are subjectively important to them (although some liberties more than others), but it isn't at all obvious why this should translate into any kind of principle of stare decisis. And if it should, why not extend the principle also to all pro-liberty statutes passed by a jurisdiction of any size and have them be repealed only by supermajority?

Posted by: Will Baude at July 12, 2005 09:18 AM
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