Thursday, July 03, 2003


The Supreme Court as a Majoritarian Institution

Brad Delong reprints the famous memo that William Rehnquist wrote when he was a clerk for Justice Robert Jackson in 1952. The Court was considering Brown v. Board of Education and related cases (which were carried over to the next Term). Rehnquist argued that states should be permitted to retain Jim Crow laws, and argued against overturning Plessy v. Ferguson, which he contended was correctly decided. At his confirmation hearings, Rehnquist stated that the memo reflected Justice Jackson's views, not his own, but the weight of the evidence seems fairly strongly against this. That suggests that Rehnquist may have given false testimony before the Senate in 1971, but hey, why should that matter?

In any case, Delong finds a number of statements in the memo puzzling. Here is one of them:

To the argument made by Thurgood Marshall [in Brown v. Board of Education] that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are. One hundred and fifty years of attempts on the part of this Court to protect minority rights of any kind--whether those of business, slaveholders, or Jehovah's Witnesses--have been sloughed off, and crept silently to rest. If the present Court is unable to profit by this example it must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men.

In fact, Rehnquist is competely right that majorities determine the constitutional rights of minorities. They do so through Article V amendments, through the passage of civil rights bills, and, equally importantly, they do so through their influence on the Supreme Court. As political scientist Robert Dahl pointed out many years ago, the Supreme Court is part of the national political coallition, it does not sit outside it; and it is heavily influenced by national political forces. Both what we call judicial restraint and judicial activism can and do serve the purposes of national elites and the dominant political coallition in the country. What Rehnquist did not understand is that although majorities do determine what rights minorities have, it does not follow that the Supreme Court should not protect minority rights, because it is part of the majority that runs the country.

Scot Powe's recent history of the Warren Court shows, I think, rather convincingly, that the Warren Court was neither the fearless judicial hero of liberal mythology or the judicial bogeyman of conservative mythology, a lone actor single handledly remaking American according to its own sense of justice. Instead, the Warren Court was working hand in hand with the dominant political forces of its time-- in the 1960's' the Cold War Liberalism of the Kennedy and Johnson Administrations. The Warren Court imposed national political values on Southern states, followed Congress's lead in civil rights policy, and (with a few exceptions) generally deferred to Congress. For example, although Brown was decided in 1954, the Supreme Court doesn't really get serious about desegregation of the South until after Congress passed Title VI of the Civil Rights Act of 1964, threatening to withdraw federal funding from southern school districts that did not desegregate. Much of the Court's work on protecting the poor either follows or is contemporaneous with Johnson's War on Poverty. And, as the dominant forces of politics changed following the 1968 election, the Supreme Court began, slowly at first, and then with greater rapidity to shift to the right. It did so both because of Presidential appointments, and because of the Court's role as part of the national governing coallition.

We can see the decisions in the most recent Supreme Court Term as reflecting these features of American politics. Here let me quote my friend and long time co-author Sandy Levinson, writing in Village Voice:

So what might explain last week's spate of "liberal" decisions? They are best understood in terms of how the court—and especially Justice O'Connor—perceives the current American center of gravity on such matters. With regard to affirmative action, the court—which is, after all, only permitting affirmative action rather than requiring it—is basically vindicating a national majority, especially among elites, that accepts relatively "soft" and opaque affirmative action—but not "quotas" or the use of ham-fisted point systems that are too transparent in the weight given to race or ethnicity. (And if local majorities, as has happened in California or Washington, ban affirmative action completely, that will clearly raise no constitutional problems.) Two crucial briefs were submitted in the Michigan law school case, one by 65 major American corporations, the other by a plethora of military leaders. Both testified to the importance of affirmative action in providing businesses and the military with minority executives and officers. One can be certain that most of the corporate CEOs and retired military officers who signed the briefs are Republicans, and that is just the point.

With regard to the second issue, gay and lesbian rights, the court realizes that 2003 is already far distant from 1986, when the court in Bowers v. Hardwick upheld Georgia's anti-sodomy law. The homophobia exemplified by such statutes is increasingly disdained by most Americans. (In his dissent, Clarence Thomas indicated that he would vote against such laws were he a legislator.) In 1986, after all, 24 states had anti-sodomy laws. By now the number is down to 13, and enforcement is rare. Even the 13, including Texas, are more complicated than one might think. Austin, the state's capital, several times elected a gay representative to the state legislature, and its elected sheriff is lesbian.

So the Lawrence sodomy decision fits the Warren Court model of actively protecting the rights of a minority once it has demonstrated it is not generally reviled, but is well on its way to general acceptance and integration. After all, the lesbian daughter of the vice president of the United States is herself a member of the Bush administration. It is no coincidence, moreover, that Justice Kennedy cited criticisms of Bowers by libertarian Republicans Charles Fried, Ronald Reagan's solicitor general, and Judge Richard Posner of the Seventh Circuit Court of Appeals.

In this sense, the young William Rehnquist was completely correct that majorities determine what rights minorities have. What he did not understand is that sometimes majorities think it quite important to protect minorty rights, because it serves their own interests, because it helps shore up the country's legitimacy, or simply because they have come to believe, as a result of a long process of social movement contestation, that a minority is not being treated fairly, and protecting their rights is just the right thing to do. That is, the scope and content of what Americans regard as being part of their basic law, their fundamental law-- which they identify with the Constitution and with the Declaration of Independence-- changes over time as the country faces new experiences and new challenges. The meaning of highly abstract terms like liberty and equality is continually being contested in everyday politics, and struggles over the meaning of liberty and equality eventually have long term impacts on the beliefs of Americans, and on the beliefs of those who form part of the dominant political coallition in the United States.

What Rehnquist did not understand in 1952 is that even then his views on race were retrograde, and that lots of people in the United States had moved past his petty and parochial view that Jim Crow was perfectly constitutional and that Plessy v. Ferguson was correctly decided. He thought that if the Supreme Court stood up for racial equality, it would "see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men." How wrong he was-- and for such a intelligent man, how narrow his vision not to have understood the forces changing around him in politics and in society. In like fashion, the older Rehnquist has been unable to wrap his mind around the fact that the country's views about homosexuality have changed. What Rehnquist did not understand in 1952 is that the Court is part of the American political system, not outside it, that judicial independence and decision of cases according to legal argument is not inconsistent with its role as part of the national governing coallition but is rather the way that it properly performs its function of contributing to the continuing development of America's higher law.


Can Bloggers Be Sued for Libel?

Of course they can.

Andrew Sullivan, relying on a Wired Magazine story about a recent Ninth Circuit decision, engages in a little wishful thinking: "Libel laws may not apply to bloggers," he says hopefully.

What the 9th Circuit held (and what the 4th Circuit also held before them) is that section 230 of the 1996 Telecom Act protects people who run websites from being sued for republishing the libels of another person. Section 230 states that " no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

This does not mean that bloggers are immune from libels they themselves write. It means that they are immune from (for example) libels published in their comments section (if they have one) because these comments are written by other people and the blogger is merely providing a space for them to be published. Congress wanted to treat operators of chatrooms and other interactive computer services differently from letters to the editor columns in a local newspaper.

So if bloggers defame somebody, they can still be sued for what they say, just not for what someone else who publishes on the blogger's site says. The Ninth Circuit extends this immunity to people who run e-mail lists and republish the e-mails they receive to the list, even if they edit the e-mails a bit or do not republish every e-mail they receive. That is different from the rules that apply to print journalism. A newspaper is responsible for defamation in letters to the editor or op-ed columns that are published in the newspaper.

Linking is a more interesting question, still unsettled in the courts. My view is that if a blogger links to defamatory content, the blogger should ordinarily not be held liable for defamation; there might be an exception if the blogger is specifically vouching for the truth of what the blogger is linking to, thus incorporating the claims by reference. (Merely providing a link with approving commentary should not be enough to subject you to liability.) If the blogger redescribes the content in his or her own words, that redescription can be the basis of a libel suit.

Of course, much of what "pundit" bloggers write about concerns public figures, so the public figure would have to show actual malice (reckless disregard for truth or knowledge of falsity) in what the blogger said.

Finally, one of the great things about the blogging community is that people are always checking each other's work. (Indeed, I fully expect I will get some responses checking this post!). And bloggers often print retractions or modifications of previous postings, with links to the previous post so that the reader can see what has been modified. So the blogosphere has a few built in safeguards that other interactive computer services often don't. That doesn't mean that the blogosphere should be fully immune from defamation, and it isn't. But it does mean that this form of journalism serves a very valuable public function; not only do bloggers check each other's work, they can often help print journalists check their facts and do their jobs a little better. That improves the quality of public discourse, which, after all, is one of the purposes of defamation laws.

Wednesday, July 02, 2003


What Does Lawrence v. Texas Hold?

There appears to be some confusion about what the Supreme Court's recent decision in Lawrence v. Texas actually holds. The confusion has been encouraged by Justice Scalia's dissenting opinion, which, I think, systematically misreads Justice Kennedy's majority opinion.

For the record, Lawrence extends the fundamental right of privacy to same-sex intimate relationships. It does not strike down Texas' sodomy law on the ground that it fails the test of rationality, as Justice Scalia seems to assume. Nor does it hold that appeals to morality cannot be a legitimate government interest under the rational basis test for ordinary social and economic legislation. Rather, it holds only that when a fundamental right or interest is involved moral disapproval is not a sufficient interest to overcome the fundamental right.

In Lawrence, Justice Kennedy argues that Eisenstadt, Carey, and Roe each extended the rights of intimate association and decisional privacy protected by Griswold beyond married adults. He then argues that homosexuals have similar rights to form intimate associations, which are more than mere sexual conduct. Finally, he endorses the reasoning of Justice Stevens’ dissent in Bowers. All of this suggests that, Lawrence holds that the right to form same-sex intimate relations is part of the fundamental right of privacy. Note, moreover, that only after arguing for the importance of the ability to form intimate relations does Kennedy quote Stevens' dissent in Bowers, suggesting that Stevens' argument about morality applies only to fundamental constitutional interests like the right of privacy.

We can also see that Justice Scalia’s characterization cannot be correct by changing the justification for Texas's law: Suppose that Texas repassed its statute arguing that same-sex relations are harmful to public health. Or suppose that Texas argued that there is some evidence that homosexuality is a mental disorder (a position once taken but now long abandoned by the psychiatric profession) and that allowing same-sex sodomy might tend to exacerbate this mental disorder, while banning it would give marginal incentives for homosexuals to experiment with heterosexual relationships. Neither of these justifications is merely a claim of moral disapproval. Both are concerned with questions of harm and public health. But there is no doubt that neither justification would be sufficient to overcome the right of intimate association recognized in Lawrence. All this suggests that Lawrence is not, in fact, an application of the rational basis test.

The notion that mere moral disapproval is not sufficient to overcome a fundamental right is not a new idea. It follows directly from Griswold v. Connecticut, Roe v. Wade and Stenberg v. Carhart (the partial birth abortion case). Mere moral disapproval of contraception, abortion, or even of partial birth abortion is not sufficient to overcome a married couple's fundamental right to engage in family planning through use and purchase of contraceptives, a woman's fundamental right to chose (in Roe) or her right to choose the safest available method of abortion (in Stenberg). Thus, on this question, Lawrence makes no new law. (Scalia, of course, has long sought to overturn Roe and dissented in both Casey and Stenberg. He does not believe that abortion is a fundamental right and therefore moral disapproval would be sufficient to outlaw both abortion and partial birth abortion.)

Why, then, didn’t Justice Kennedy simply say that there is a fundamental right to engage in same-sex sodomy? The most likely reason is that he objected to this characterization of the right, because it demeaned homosexuals by reducing their intimacy to a sex act in a way that would never be done to heterosexual couples. The right to privacy, Justice Kennedy argues, is the right to form personal and intimate relationships of which sex is only a part. Justice Kennedy’s view, in short, is that there is more to a relationship than just sex.

The question that Lawrence leaves unanswered is how far the right of intimate association extends. Kennedy seemed to suggest that the right applies to noncommercial sexual relations. He also argued that the right of intimate association “should counsel [as a general rule] against attempts by the State, or a court, to define the meaning of [a personal intimate] relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.” Note that this language does not explain the scope of the right; rather it explains what kinds of justifications the state might make when it wants to regulate conduct which falls within the scope of the right.

So after Lawrence, we have two questions.

First, is a certain practice within the scope of the right of intimate association/sexual autonomy/reproductive autonomy?

If not, then regulation of the practice is subject to the ordinary rational basis test and the state may invoke morality as a reason for regulating the practice or even prohibiting it completely.

Second, if the practice falls within the scope of the right of intimate association/sexual autonomy/reproductive autonomy, then the State may not regulate the relationship absent a showing of harm or in order to protect the abuse of an institution the law protects. Examples of the latter would be marriage, parent child relations, or family relations generally. Mere moral disapproval of the practice is not sufficient; although it is clear that what constitutes abuse of the marital relationship, parent-child relations, or family relations will be heavily affected by moral considerations.

Lawrence leaves open many issues, including the question whether states may limit marriage to opposite sex partners. It does seem to foreclose the argument that the state may criminalize opposite-sex sexual relations between unrelated persons who are not married (fornication) and, if there was any doubt about this, masturbation. (Why Justice Scalia thought it important to assert the state's right to regulate masturbation on the basis that it is immoral is beyond me. I leave this very interesting question to your imagination.).

Finally, what about consensual incest between adults where there is no danger of pregnancy? The answer to this much more complicated question depends on how we understand the nature of the liberty protected by the Due Process Clause. Let me offer my views on what fundamental rights adjudication should be about.

My view is that a practice should be recognized as a fundamental right under the Due Process Clause only when social movement contestation has changed people's attitudes about a practice sufficiently so that it has become effectively normalized and large numbers of people feel that to criminalize the conduct intereferes with people's basic liberties and with their equal citizenship. Put another way, the scope of fundamental rights under the Due Process Clauses of the Constitution should be and usually is worked out through politics and culture, from the bottom up, not the top down. What courts usually do (and should do) is ratify large scale changes about beliefs in society that have long since occured. Then they recognize as part of American's basic law what most Americans themselves have already accepted as their basic law. I often explain to my students that once Jackie Robinson entered the major leagues in 1947, and Truman desegregated the Armed Forces, something like Brown v. Board was a foregone conclusion. Similarly, once Will and Grace becomes a Top Ten show in the Nielsen ratings, we may assume that gays have achieved a basic degree of acceptance in American society, even if they are not treated equally in all respects. What courts do in these fundamental rights cases is reflect changing social mores that are worked out in political struggles about basic values and then translated into constitutional doctrine. After recognizing these rights, what courts then do is work out the logical consequences of the shift in popular views about basic liberties. This is as true with respect to enumerated rights as unenumerated rights. After all, changing views about sexuality have also affected the scope of freedom of speech.

Note, by the way, that when I speak of a change in social mores, I am not claiming that the majority of Americans now think that homosexuality is morally unproblematic or that it is just as good as heterosexuality. Rather, I am claiming a more modest shift: the position that most Americans have adopted is that these matters are none of the government's business. A basic level of tolerance for gays has been achieved, and is still growing, full social acceptance for gays is still years away.

My view about the constitutional status of incest is fairly straightforward: There has been no sustained social movement in favor of incest between adults, arguing that it is moral and appropriate and that it's none of the government's business persecuting people who simply have a different lifestyle and who are genuinely in love with their brothers or sisters, or their sons and daughters (or their uncles and aunts). Large numbers of states have not decriminalized incest and it is unlikely that they will do so any time soon. There has been no constitutional law making from the ground up on this question. For this reason, courts should not extend the reasoning of Lawrence to cover incest. When there is a top ten sitcom on NBC called "Grace and her Father," about a father-daughter affair, then we can have a conversation about whether the right of intimate association should be extended to include consensual incest. Until that point, it should be subject to state regulation.