Guest Blogger: Mark Graber

JB

Mark Graber of the University of Maryland, one of the most original thinkers in political science today, whose specialty is public law and American political development, will be guest blogging on Balkinization. Please give him a warm welcome.

Posted 10:18 AM by JB [link] (7) comments

Civil Liberties in "Wartime" I

Mark Graber

Most critics of the Patriot Act accept that some restrictions on civil liberties are the norm in wartime. But American history offers numerous counterexamples. Wartimes have as often provided occasions for expanding as restricting civil liberties. The Patriot Act is more about George W. Bush and John Ashcroft than about an American norm of behavior in times of national danger.

From the very beginning of the republic, military conflicts inspired increased protection for civil rights and liberties. Members of Revolutionary War militias refused to fight until they were granted voting rights in their communities. Lincoln justified the Emancipation Proclamation as a military necessity. Woodrow Wilson in 1917 insisted that the threat of war justified extending the eight-hour day for workers and in 1918 declared that women's service during the war provided crucial grounds for passing the Nineteenth Amendment. The Supreme Court in 1943 ruled that government could not compel students to salute the flag, overruling its prewar decision just three years earlier. Both Justice Jackson's opinion for the Court and Roosevelt administration officials made clear that mandatory flag salutes too much resembled policy of the hated Nazi regime.

Free speech rights, restricted in some wars, are protected in others. Political dissenters during the Spanish-American War failed miserably in their self-conscious efforts to provoke government repression. The postmaster general permitted powerful anti-war pamphlets to be mailed. American Nazis won six of seven speech related cases adjudicated by the Supreme Court from 1941 to 1946. Most remarkably, given constant claims that only an independent judiciary can prevent elected officials from curtailing rights, President James Madison during the War of 1812 repeatedly ignored Justice Joseph Story's pleas for a national sedition bill.

Brown v. Board of Education is the most famous instance of how military tensions inspire efforts to expand civil rights and liberties. Such scholars as Derrick Bell, Mary Dudziak, Philip Klinkner and Rogers Smith have detailed the ways in which the Cold War was responsible for numerous racially liberal policies. Government officials regarded measures aimed at expanding African-American freedom as crucial to American struggles against the Soviet Union. The Justice Department in Brown informed the justices that "racial discrimination in the United States remains a source of constant embarrassment to this Government in the day-to-day conduct of its foreign relations," and that it "jeopardizes the effective maintenance of [American] moral leadership of the free and democratic nations of the world."

What administration officials do during a war depends largely on their predispositions before the War. Members of the Wilson administration had exhibited no solicitude for speech rights before the war, and restricted those rights sharply during the war. Members of the Roosevelt administration, by comparison, were supportive of civil liberties before the war, and regarded World War Two as a vehicle for advancing more libertarian and egalitarian policies.

Civil liberties during the present war against terrorism fit this historical pattern. The Bush administration is restricting primarily those rights that the administration sought to limit before September 11. The Patriot Act and related administration actions are consistent with previous Bush administration efforts to increase the power of government agencies to investigate criminal activities, to limit the procedural rights of criminal suspects, and to favor management over labor unions. The Patriot Act contains several provisions whose impact is limited to ordinary domestic crime. The mass detention of foreign nationals merely carries to an extreme previous policies that vested aliens with fewer and fewer legal rights. When, as is the case with gun control, the Bush administration before the war aggressively supported the right in question, it has steadfastly declared that present military conditions do not justify any intrusion into the constitutional rights of Americans.

Coming attractions: Gays in the Military or why not offending social conservatives seems a higher political priority than gaining edges in the war on terrorism.


Posted 8:38 AM by Mark Graber [link] (27) comments

Shorter Republican Party Convention

JB

Reporter: Hi, I wanted to ask you a few questions about ....

Republican Party: September 11th! September 11th! Remember September 11th!

Reporter: What's your view of the Democrats?

Republican Party: Out of Mainstream! Unpatriotic! Radical Pantywaists! September 11th! September 11th! Remember September 11th! (breaks into song) Oh Beautiful for Spacious Skies, For Amber Waves of Grain!

Reporter: What's your view about unemployment?

Republican Party: Turning the Corner! America Strong! September 11th! September 11th! Remember September 11th!

Reporter: Deficits?

Republican Party: What Deficits? September 11th! September 11th! Remember September 11th!

Reporter: The failure to find weapons of mass destruction?

Republican Party: Winning the War on Terror! America Strong! America Good! September 11th! September 11th! Remember September 11th!

Reporter: Well, thanks very much for your time. I appreciate it. (starts to walk away).

Republican Party: (tackling reporter) September 11th! September 11th! Did you hear me! SEPTEMBER F**CKING 11TH!

Posted 12:28 PM by JB [link] (11) comments

The Constitution in the Media

Mark Tushnet

Evidence that the media need constitutional advisers (I'm available for my usual hourly rate):

1. In the New York Times Magazine article on where the Republicans should go, David Brooks writes: "Nobody knows who the nominee will be [in 2008]. It could be Bill Frist, Chuck Hagel, Rudy Giuliani, Gov. Bill Owens of Colorado or somebody else -- maybe even Arnold Schwarzenegger." Not the last, unless the Constitution's amended or the Republicans again engage in extremely creative constitutional interpretation. The Constitution says (subject to a provision applicable only for a generation after 1789) that only "natural born Citizen[s]" are eligible for the Presidency. So far at least that has been interpreted to mean that naturalized citizens are ineligible. (There's a minor question, which arose when George Romney [born to U.S. citizen parents in Mexico] tried to get the Republican nomination, about whether people born outside the United States who nonetheless have citizenship at birth because their parents are citizens are eligible, but I think the judgment of experts, such as it is, is that they *are* eligible.) Schwarzenegger is, of course, a naturalized citizen.

The Constitution could be amended. Or maybe Schwarzenegger's supporters will start to urge seriously the argument, made as a joke by specialists when the quextion comes up, that "natural born citizen" means "delivered in the natural way, not by Caesarian."

2. We saw the remake of "The Manchurian Candidate" yesterday (review: They managed to make a boring thriller; see the original instead). At one point the charcter played by Glenn CLose, a U.S. Senator, threatens another Senator with impeachment. Nope: The Senate decided in 1798 that it could not use impeachment to remove its own members, in the case of William Blount of Tennessee, who had been charged with conspiring with the British to take over Spanish territory in Florida and Louisiana. (The Senate expelled Blount instead.)
Posted 7:33 AM by Mark Tushnet [link] (12) comments

Four More Months

JB

A grand old welcome for the Grand Old Party.

Truly only a special kind of leader can inspire this much emotion from his fellow countrymen.

Posted 5:50 PM by JB [link] (8) comments

The Rise of Libertarian Republicans

JB

This is a follow up to Mark's post. He asks how we should categorize Justice Kennedy. I would say that Kennedy is exactly what Mark thinks he must be-- a modern Republican. But Kennedy is a particular kind of modern Republican. The Southern and Western wings of the Republican Party which took over the Party in the 1980's were not monolithic. They combined social conservatives, religious conservatives and libertarians. It is obvious that although these groups can agree on some things, they will disagree on others.

Kennedy is not a social or religious conservative. He has strong libertarian tendencies and an almost romantic attachment to a notion of personal liberty that he has tried to articulate with varying degrees of coherence in his opinions. When we look at how Kennedy has parted company with Rehnquist, Thomas, and Scalia, it has often been on libertarian grounds-- in first amendment cases and particularly in cases involving abortion and gay rights. Kennedy is, after all, the author of the "sweet mystery of life" passage in Casey that drives Scalia (and other critics of Casey and Lawrence) up the wall.

Libertarians are an increasingly important part of the Republican coalition, particularly among young people. But there is a natural strain between them and social and religious conservatives, (and their discomfort has been exacerbated by the free spending policies of the Republicans in recent years.)

In the future we are likely to see more appointments of judges like Kennedy, not fewer. One reason is that they represent an important part of the Republican intelligentsia. Another is that they are more palatable to Democrats than Ashcroft-style social or religious conservatives. Whether that is a good thing or a bad thing, of course, depends on whether you like Kennedy's politics more than Scalia's.

Posted 11:15 PM by JB [link] (3) comments

David Brooks: Clinton for President

JB

His long and very interesting New York Times article offers what he calls a new agenda for the Republican Party, which uses an energetic activist government to create opportunities for ordinary people, energize and empower minority communities, foster individual initiative, end corporate welfare, give incentives for new energy alternatives and create a national service program.

The only problem is that it's not new. It's Clintonism. Essentially, Brooks wants the Republicans to become the DLC.

Well, if the right wing party in this country wants to move to the left sufficiently to embrace the views of the DLC, a center-left organization, that's fine with me. I'd love the center of gravity in the U.S. to shift dramatically to the left. Among other things, it would open up a space for discussion of liberal policies that have been viewed as out of the mainstream for years.

Nevertheless, I strongly suspect that a lot of people in the Republican Party are going to be ideologically allergic to what Brooks is advocating. Apparently he has Tom Delay and Grover Norquist confused with reasonable people.

Posted 10:58 PM by JB [link] (35) comments

Understanding the Rehnquist Court III

Mark Tushnet

Previously I argued (a) that the most important dynamic on the Rehnquist Court was a division within the "conservative" or Republican ranks, and (b) that liberals were in the main able to avoid division because of the leadership of Justices Brennan and Stevens. Those points immediately raise an additional question: Why weren't the conservatives able to overcome their divisions by some similar acts of leadership?

There are three candidates for leaders on the conservative side. Rehnquist himself seems to have devoted his energies to leading the Court, not leading the conservatives. One reason is the almost audible sigh of relief you could hear from within the Court when the inept Warren Burger departed. Burger simply had been unable to administer the Court's work effectively. Rehnquist pretty clearly decided that he had to spend his energies getting things done -- which endeared him to his colleagues. (Brennan and Marshall were effusive in their praise of Rehnquist as a Chief Justice, Brennan even ranking him higher than Earl Warren among the Chiefs with whom he had served.) Then, as the years passed, Rehnquist simply got tired (and frail).

Thomas was damaged within the Court by his confirmation fight, which reinforced his tendency to isolate himself, as is illustrated by the limited number of hours he spends at the Court. In addition, his positions on constitutional law are "extreme" (by which I mean only that they are quite distant from those of the traditional Republicans who would have to be led into unity) and, perhaps more important in this context, inflexible. Still, it is interesting to speculate about what Thomas might do in the event that (a) George W. Bush remains President and (b) decides to expend the quite substantial amount of political capital it would take to have Thomas confirmed as Chief Justice. The position as Chief would give Thomas an institutional leadership role, and the new colleague filling his own seat would undoubtedly be a relatively young modern Republican. (Of course, a President Bush choosing a new Chief Justice might look outside the Court for someone who would provide leadership inside it.)

Finally, there's Scalia. Here I return to a theme in an earlier post, in which I argued that Scalia seems to have decided that he preferred acclaim among his acolytes to success inside the Court. I don't have much to add to what I argued there, except to note -- in a follow-up to Jack Balkin's post on the Webster decision -- that Scalia's obvious fury at O'Connor there (I attribute it to his conclusion that her indecision prevented the modern Republicans from getting behind an opinion by the Chief Justice that would have expressly repudiated Roe v. Wade) seems to have created a permanent breach between them (in the manner that breaches occur between Supreme Court justices -- that is, they remain capable of ordinary civility in their social interactions, but nothing beyond that). So, Scalia created the conditions for his own inability to provide leadership for the modern Republicans.

There may be a simpler, but I think complementary, explanation: There just is a difference in constitutional views between the traditional and the modern Republicans, a difference large enough to make it impossible for them to come together with the degree of consistency that the liberals have demonstrated. The puzzle here is to figure out Justice Kennedy, who, as I noted in Part I of this series of posts, certainly looks as if he ought to be a modern Republican. Again, I think that it's a failure of leadership that allowed Kennedy to stray off the reservation as often as he has done (graduation prayer, Casey, etc.).
Posted 9:14 PM by Mark Tushnet [link] (6) comments

Understanding the Rehnquist Court II

Mark Tushnet

I argued in my previous post that one important dynamic on the Rehnquist Court was division between two groups of Republicans, or two types of conservatives. What was happening on the liberal side? Basically -- with one interesting exception -- a high degree of unity (not always -- see Atwater v. Lago Vista -- but quite high nonetheless). And how did that happen (since unity among judicial liberals is hardly a fact of nature)?

The answer is, primarily, extraordinary leadership on the liberal side. We've known for a long time that William Brennan provided that leadership from Burger's appointment (and even before) until Brennan's retirement. Brennan was able to provide that leadership because of his personality and his strategic sense. Since Brennan's retirement, the leadership on the liberal side has come from, surprisingly, John Paul Stevens. It's surprising because of Stevens's well-known idiosyncracies about constitutional doctrine. And, I confess, it's not clear to me how Stevens has managed to pull it off; I think that Stevens's role on the Rehnquist Court is probably the largest untold story about the Court in the 1990s. To the extent I can figure it out, one important component is Stevens's facility at opinion assignment. Interestingly, he's been able to do that in important part because of Rehnquist's insistence that each justice end up with an equal number of majority opinions at the end of each Term. When the Court's unanimous, or nearly so, Rehnquist will assign the "dogs" to some of the liberals. When the liberals manage to get a majority, Stevens can "use up" an opinion assignment, thereby restricting Rehnquist's options as the Term goes on. (One effect, for example, is that Rehnquist is forced into giving more assignments to Scalia and Thomas than he would [probably] like -- because those two justices are more likely to draft hard-edged conservative opinions that will lead O'Connor or Kennedy to have second thoughts.) All this is pretty speculative, although I bet that a quantitative political scientist could get us closer to understanding the post-Brennan opinion assignment process.

I mentioned at the outset one interesting exception to unity on the liberal side. The exception, of course, is Justice Breyer. He is basically a technocratic statist, who most resembles Byron White -- and, in political terms, is the inheritor of the New Frontier vision of John F. Kennedy, coupled with the impulse among twentieth century Progressives to technocracy (an impulse that most self-described "progressives" today don't feel). These aspects of Breyer's jurisprudence come out most clearly in cases involving technological innovation, which today means, mostly, First Amendment cases. In those cases Breyer is pretty strongly pro-regulatory. (His statist nationalism also underlies his position in the Court's federalism cases.)

I have to say that I have a weaker feel for this analysis than I do for my analysis of the conservatives. Next post: What about leadership -- or the absence thereof -- on the conservative side?
Posted 9:30 PM by Mark Tushnet [link] (7) comments

The Day Roe Was Overruled-- The Prequel

JB

My previous post discussed how Roe was almost overruled in Casey. This post explains why Roe was not overruled in Webster v. Reproductive Health Services in 1989, after Justices Scalia and Kennedy joined the Court. The short answer is that Scalia and O'Connor could not agree on a common solution, and Chief Justice Rehnquist was unable to exert sufficient diplomacy to come up with a working majority. This story has been told before in Edward Lazarus's Closed Chambers (he clerked for Blackmun during this term), but the Blackmun papers offer some new insights into what happened.

Webster was argued April 26th, 1989 and decided July 3d, 1989. On April 28th, the Court met in conference to discuss the case. This conference was particularly important because it was the first time that the two newest Justices, Scalia and Kennedy, would announce their views on Roe v. Wade. Blackmun's notes indicated that there were five votes to uphold the Missouri statute in its entirety: Chief Justice Rehnquist, Justice White, Justice O'Connor, Justice Scalia, and Justice Kennedy, but they wanted to do so for different reasons.

Chief Justice Rehnquist wanted to reverse the lower court and uphold the Missouri law. He wanted to subject abortion regulations to a rational basis test, although he would stop short of saying that outright criminalization of abortion as in the original Texas statute "is now OK." White was basically in agreement-- he would uphold the Missouri statute.

Justice Brennan would have affirmed the lower court and struck down the Missouri statute. Roe was "correct" he said. It involved "[a] fundamental right." Marshall agreed. He would uphold what lower court did across the board. Blackmun also agreed, although his notes also indicate he might reverse on the preamble.

Stevens wanted to uphold some parts and strike down others. The "Admin[istration] did us a disservice by raising t[he] issue" of overruling Roe. He might agree with Rehnquist that the preamble to the Missouri statute-- stating that life begins at conception-- presented no problems because it had no legal effect.

O'Connor's views of Roe had not changed. I "[a]dhere to what I have written," she said. She would "recognize a valid st[ate] interest" in potential life throughout the pregnancy. She would not "reject Griswold and Eisenstadt," and would go no further than this.

Scalia spoke next: "I may have t[o] confront Roe," he said. "I just disagree with it." "We [should] set it aside when we can." The problem would get "no better as time goes on," although perhaps the Court "need n[ot] reach the issue here."

Kennedy wanted to uphold the testing requirements, which he thought were "probably invalid under Roe," and he wanted to "cut back on this." "I taught [Roe] for ten years," Kennedy remarked. "On[] pure stare decisis [grounds I] would leave [it] alone," he said, "[b]ut [it] continues to do damage to the Court, [to] the institution of judicial review, and [to the] conception of the judge's proper position and role." Kennedy would use the Due Process Clause, but not recognize the "fundamental rights of women." He would "[r]eturn this debate to the democratic process. It will protect the rights of young women." Kennedy wanted to reach the merits only after a discussion of the "methodology and structure of Roe."

By the end of the conference, there were five solid votes for upholding the Missouri statute. This included four votes for gutting or overruling Roe: Rehnquist, White, Scalia, and Kennedy. O'Connor, by contrast, wanted to use her "undue burden" test. Brennan and Marshall wanted to strike down the challenged provisions across the board, while Blackmun and Stevens wanted to strike down parts.

Rehnquist assigned himself the majority opinion. He hoped to write something that would bring O'Connor into the fold. He circulated his first draft on May 25th, styled as the Opinion of the Court. It rejected Roe's trimester system and the cutoff at viability, and held that abortion regulations were permissible if the state's regulation "reasonably furthers the state's interest in protecting potential human life." "To the extent indicated in our opinion, we modify and narrow Roe and succeeding cases."

Rehnquist's approach was clever, but it fooled no one. It was obvious to all that the Chief Justice had just overruled Roe without saying so. On May 30th, Stevens sent him a letter making precisely this point. Rehnquist had announced what was effectively a test of minimum rationality for all abortion regulations:

If a simple showing that a state regulation "reasonably furthers the state interest in protecting potential human life" is enough to justify an abortion regulation, the woman's interest in making the abortion decision apparently is given no weight at all. A tax on abortions, a requirement that the pregnant woman must be able to stand on her head for fifteen minutes before she can have an abortion, or a criminal prohibition would each satisfy your test. Because the test really rejects Roe v. Wade in its entirety, I would think that it would be much better for the Court, as an institution, to do so forthrightly rather than indirectly with a bombshell first introduced at the end of its opinion.

. . . .

As you know, I am not in favor of overruling Roe v. Wade, but if the deed is to be done I would rather see the Court give the case a decent burial instead of tossing it out the window of a fast-moving caboose.

Respectfully,

John

Rehnquist did not worry too much about Stevens, who was not going to vote with him anyway. The real problem was O'Connor. By choosing a test of minimum rationality, he had rejected not only Roe v. Wade but also O'Connor's "undue burden" test. Perhaps he hoped that O'Connor would go along, but she refused to budge. She circulated the second draft of her views on June 26, now styled "concurring and concurring in the judgment in part and dissenting in part."

The next day, Rehnquist submitted his fourth draft, still as the Opinion of the Court. Perhaps he hoped he could still keep his majority together. But the day after that, on the 28th, Blackmun noted in the margins of the second draft of his dissent that the "majority" was now a "plurality." At this point, Scalia jumped ship and wrote a separate opinion arguing that Roe should be overruled. Apparently, Scalia had gotten over his the initial reluctance to confront Roe that he had expressed at the April 28th conference.

One might well ask why Rehnquist didn't write an opinion that rejected the strict scrutiny language of Roe, Akron, and Thornburgh and simply said that the Court would decide whether rational basis or undue burden applied in the next case? Perhaps this might have mollified O'Connor, but it would have lost Scalia, who would only join an opinion that overruled Roe or treated it as a dead letter. In the end, neither Scalia nor O'Connor joined his opinion treating Roe as a rational basis case. Rehnquist discovered that he had been too clever for his own good.

Posted 12:55 PM by JB [link] (15) comments

Understanding the Rehnquist Court

Mark Tushnet

Jack's post on the Casey decision prompts me to sketch my argument in "A Court Divided," as promised (or threatened) earlier. The basic dynamic on the Rehnquist Court, I argue, has two elements, one on the "conservative" side, and one on the "liberal" side. Here I'll deal with the first, and post tomorrow about the second.

One way to get into the element on the conservative side is to think about where the "troika" opinion in Casey came from. That is, how did O'Connor, Kennedy, and Souter come to agree on reaffirming what they called the "core holding" of Roe v. Wade? Of course there are "local" -- that is, particular to individuals and circumstances -- components of the account. For example, Kennedy has a streak of libertarianism, not systematically integrated into an overall jurisprudence but mobilized on (not quite random) occasions. That's an important part of his position in the gays rights cases, for example, and probably played into his action in Casey. And, it seems clear to me that O'Connor was "turned off" by Scalia's vigorous attack on her in the Webster decision, where (as Scalia saw it), O'Connor's indecision led to a weaker anti-Roe opinion by Rehnquist than he could have written (had he known that O'Connor was not going to get on board with the weaker opinion) -- and by her decision a year earlier in Minnesota v. Hodgson to invalidate (for her, for the first time) a restrictive abortion law, because of what she saw as its really serious adverse impact on abused women.

But, more broadly, Casey stands for -- symbolizes -- a division within the Republican party, between what I call modern (post-Goldwater) Republicans and traditional Republicans of a sort that was once associated with Nelson Rockefeller and that still remains strong in the Republican party in the Northeast. The latter point explains why Souter's positions should not come as a complete surprise. He's said that he came to the Court completely unacquainted with the important constitutional issues that he's had to deal with, but that doesn't explain why, once he studied the issues, he came out where he did. I think the reason is that his sensibilities and presuppositions were those of a Northeastern Republican.

O'Connor and Kennedy are different. O'Connor was an activist in the Goldwater Republican party in Arizona, and Kennedy was associated with Ronald Reagan in California. That is, in biographical terms they seem to be "modern" rather than "traditional" Republicans. For O'Connor, though, that was tempered by her experience as a suburban professional Republican woman in the 1950s and 1960s, who channeled her ambition for several years into the social-welfare activism of people in her social circle, when she took time off from her law practice to raise her young children. She was, that is, a fairly typical "country-club Republican" who found that the party she became active in was already the Goldwater party, whose most conservative positions would influence her but which could not overcome the effects of how she experienced her life as a suburban professional Republican woman.

Kennedy's a harder case, in Casey itself -- and it seems to me significant that, though he went along with Casey, he went back to the "conservative" side in Stenberg v. Carhart. Still, I think that it's fair to associate Kennedy with traditional Republicanism -- maybe because that's how he grew up (with a father who was a hail-fellow-well-met lobbyist). Perhaps more important, Kennedy pretty clearly sees himself as a "statesman" on the Court, which necessarily pushes him toward less hard-edged positions than, for example, Scalia takes. ("Pushes him" doesn't mean that he always ends up "in the middle" -- consider his position in affirmative action cases. Still, "statesmanship" induces a tendency toward traditional rather than modern Republicanism on a Court with a significant number of more liberal members.) Something similar seems to operate for O'Connor as well, whose experience in the Arizona legislature was one of leading a closely divided body.

So, in short, the main theme in the Rehnquist Court has been a division among Republicans that tracks, albeit imperfectly, a distinction between modern Republicans (plainly, now dominant in the party) and traditional ones (equally plainly, now a dying breed). Tomorrow: what's the story on the "liberal" side?
Posted 1:22 PM by Mark Tushnet [link] (11) comments

From the Blackmun Papers: The Day Roe v. Wade was Overruled

JB

Harry Blackmun's papers offer important behind-the-scenes details about how the Supreme Court decided Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992. Casey, as you may remember, was thought to be the case that would have overruled Roe but ended up reaffirming it in a watered-down version. The story has been told before by Edward Lazarus in his book Closed Chambers, and by David Garrow in a New York Times article on Justice Souter in 1994, but Blackmun's papers offer a valuable additional insights. Here is the story of what happened as best I can reconstruct it:

Casey was argued on April 22, 1992. At the conference following the argument, on April 24, 1992, there were five votes to uphold the challenged Pennsylvania statute in its entirety: Rehnquist, White, Scalia, Kennedy, and Thomas. Blackmun's notes state "To uphold we would not OR Akron & Thornburgh;" i.e., that it would not be necessary to overrule these cases from the 1980's in which a liberal majority had struck down similar abortion regulations under a test of strict scrutiny. This statement seems puzzling-- it's hard to see how these cases would be consistent with upholding the Pennsylvania statute. Edward Lazarus' book Closed Chambers suggests that Rehnquist said the opposite of what Blackmun's notes suggest-- the Akron and Thornburgh had to go, but that it might not be necessary to overrule Roe. It's possible that Rehnquist was just playing possum, arguing that the Court did not need to do much new here, so that he could cement a majority that included Sandra Day O'Connor and try to write an opinion that could command a Court.

Scalia agreed with Rehnquist, but he added that in his view abortion regulations need only pass a test of minimum rationality, a position Rehnquist had taken in his Webster opinion. Thomas also wanted to uphold the entire statute. Kennedy agreed with him. Kennedy, and not Rehnquist specifically wanted to overrule the two previous cases, Akron and Thornburgh, which had reaffirmed that abortion was a fundamental right and had subjected abortion regulations to strict scrutiny.

The remaining four Justices thought that some parts of the Pennsylvania statute had constitutional problems. Souter wanted to strike down the spousal notification provision. O'Connor agreed-- she thought the 3rd circuit decision, which had struck down only this provision, was basically right. Stevens and Blackmun wanted to strike down both the spousal notification provision and the 24 hour waiting period. Stevens called the latter "an insult" to women.

After the conference, it looked as if there was a 5-4 opinion to uphold the statute in its entirety, which would have effectively gutted Roe. Thus, on April 24, 1992, it appeared to the Justices that Roe v. Wade would finally be overruled.

Rehnquist assigned himself the majority opinion and circulated a draft on May 27, 1992. "We hold that all of the challenged provisions of the Pennsylvania statute are consistent with the United States Constitution," Rehnquist wrote. Although Roe involved criminalization of abortion rather than regulation of abortion, it was necessary to reconsider Roe. "Building on [Meyer and Pierce] we have long held that the term "liberty" includes a right to marry, [Loving]; a right to procreate, [Skinner v. Oklahoma]; and a right to use contraceptives. [Griswold, Eisenstadt]. But a reading of these opinions makes clear that they do not endorse any all-encompassing `right of privacy.' In particular, "the Court was mistaken in Roe when it classified a woman's decision to terminate her pregnancy as a `fundamental right' that could be abridged only in a manner which withstood `strict scrutiny.' Rehnquist cited Bowers v. Hardwick to support his view that the right of privacy should be narrowly construed because it had "little or no cognizable roots in the language or design of the Constitution." Henceforth, regulations of abortion need only meet a test of mere rationality. That is, "States may regulate abortion procedures in ways rationally related to a legitimate state interest." Since the preservation of potential life was a legitimate state interest, it followed that states could probably criminalize abortion as well, although Rehnquist did not say this directly.

After Blackmun read the first draft, he wrote in the margins: "WOW! Pretty extreme?"

But Rehnquist felt no need to be less extreme. He had five votes. But at this point his majority began to fall apart. The key actor was not Sandra Day O'Connor, but Anthony Kennedy. Two days after the first draft was circulated, on April 29, 1992, Kennedy sent Blackmun a short handwritten note:

Dear Harry:

I need to see you as soon as you have a few free moments. I want to tell you about some developments in Planned Parenthood v. Casey, and at least part of what I say should come as welcome news.

If today is not convenient, I will be here tomorrow. Please give me a call when you are free.

Yours,

Tony

Blackmun took notes of the meeting on April 30, 1992. (Blackmun's notes say the meeting was 3-30-92, but he almost certainly meant 4-30-92, because his notes are stapled to the Kennedy letter and the oral argument in Casey didn't occur until April 22nd.) Blackmun's notes refer to "The 3--" i.e., that Kennedy was reporting the views of a troika of Justices who had been secretly meeting together to discuss Casey. According to Kennedy, Roe was "sound," but that the trimester system would have to go, and he also wanted to overrule Akron and Thornburgh, which subjected abortion regulations to strict scrutiny. The troika wanted to uphold most of the Pennsylvania statute but would vote to strike down the spousal notification law. David Souter, who cared a great deal about respect for precedent, would explain why respect for precedent counseled against overruling Roe. The 3 would also adopt O'Connor's "undue burden" test, first announced in her dissent in Akron.

Blackmun wrote the initials of the Justices in a row, and drew brackets around the troika of Kennedy, O'Connor, and Souter. He now saw that there were five votes for upholding Roe-- the troika, himself, and Stevens. At the bottom of the page, Blackmun wrote: "AMK delegated by O and D?" i.e., had Kennedy been delegated by the other two Justices to make these representations? It soon became clear that he had.

On June 8, 1992, O'Connor, Kennedy and Souter circulated the first draft of their Joint Opinion. It was not circulated as the lead opinion, but rather was labeled "concurring in the judgment in part and dissenting in part." On page 3, the Justices wrote: "After consideration of the fundamental constitutional questions it presents, principles of institutional integrity and stare decisis lead us to conclude this: the essential holding of Roe v. Wade once again should be endorsed, continued, and reaffirmed." When Blackmun read this sentence, he underlined the words "endorsed," "continued" and "reaffirmed," and wrote in the margin "this OK." As Kennedy had suggested, the joint opinion adopted O'Connor's undue burden test: "the State cannot assert its interest in promoting fetal life in a way that imposes any real obstacle to the practical ability of the woman to have an abortion procedure before viability" but "the State can enact reasonable measures to assure that the woman's decision is cautious, mature, and informed."

On June 17, 1992, Rehnquist circulated a second draft of his majority opinion. It was still titled the Opinion of the Court, but it noted the existence of a "Joint Opinion" written by Kennedy, O'Connor, and Souter, and rejected its arguments for upholding Roe based on stare decisis:"We have stated above our belief that the Constitution does not subject state abortion regulations to any type of heightened scrutiny. Accordingly, we think that the correct analysis is that set forth by the plurality opinion in Webster. A woman's interest in having an abortion is a form of liberty protected by the Due Process Clause, but states may regulate abortion procedures in ways rationally related to a legitimate state interest." Rehnquist still believed he could keep a majority together. But events were moving against him.

The next day, on June 18th, Stevens wrote to the troika. He and Blackmun could join in the first three sections of their opinion, reaffirming Roe and striking down the spousal notification provisions, in effect making their views the opinion of the Court. In return, the troika only had to delete some sentences that criticized Roe and its trimester system from the first three sections and move them to later in the opinion. Stevens and Blackmun would join the first three parts of the opinion and write separate dissents addressing the remaining issues, including the 24 hour waiting period. Kennedy and O'Connor agreed the same day, and after some minor negotiations over language, they issued a second draft on June 22nd, now titled the "Opinion of the Court." Stevens joined on June 22nd, while Blackmun joined on June 24th. A third draft circulated on June 25th, 1992. The troika was in control.

On June 26th, Rehnquist circulated his 3rd draft. The opinion was now entitled "concurring in the judgment in part and dissenting in part." Rehnquist had lost his majority, but he tried to spin the meaning of the joint opinion: After arguing that Roe was wrong to recognize a fundamental right, he stated "The joint opinion of JUSTICES O'CONNOR, KENNEDY, and SOUTER is not in outright disagreement with us to this point." The next day, however, Scalia, White, and Thomas had signed on, and Rehnquist was no longer in the mood to be conciliatory. In his fourth and final draft that sentence now read: "The joint opinion of JUSTICES O'CONNOR, KENNEDY, and SOUTER cannot bring itself to say that Roe was correct as an original matter."

Rehnquist had wanted to overturn Roe before the 1992 election. If Bush won, he might retire; if Clinton won, the deed would already have been done. Now that Roe was still around, there was nothing left to do but show why the Joint Opinion's arguments made no sense.

Rehnquist had come ever so close to gaining his prize. But it had eluded him.

For now.

Posted 6:21 PM by JB [link] (9) comments

What I did during my summer vacation

JB

Several of you have been kind enough to inquire after me because of the lack of postings for the past month. The truth is that I've been swamped with work. I'm simultaneously working on three different books slated for publication next year as well as about six articles, revising my Con Law casebook, plus the usual reviewing of manuscripts by other scholars, writing recommendations, running the Information Society Project (my Internet center at Yale), etc. At some point, the deadlines just pile up and I have to let go of something. In this case, it's blogging. (Nevertheless, I should point out that Mark Tushnet, who has been graciously guest blogging here on Balkinzation is doing about twice as much without breaking a sweat!).

In any case, in the next week or so I want to share some of the work I've been doing. In particular, last week I was down in Washington doing research on one of my books, in this case a book on Roe v. Wade, and I spent some time at the Library of Congress looking through the papers of Justice Harry Blackmun. Blackmun was a pack rat-- he saved *everything*-- and there are a fair number of letters between the Justices in some of the important cases of the 1970's and 1980's, and, in particular the abortion cases starting with Roe. As the author of Roe, Blackmun felt an almost proprietary interest in the fate of that decision, and his records of the deliberations in Roe, Webster, and Casey are pretty good. I also wanted to see if there was any connection between the decision in Roe and the Court's sex equality jurisprudence. It turns out, not much. But in the meantime I found some fascinating stuff on how the Court viewed the ERA as it was considering whether to create new doctrines enforcing sex equality.

Posted 10:48 PM by JB [link] (8) comments

Popular constitutionalism

Mark Tushnet

Larry Kramer's recent "The People Themselves" is yet another contribution to the burgeoning (? -- really?) literature on popular constitutionalism. That literature defends the proposition that the people themselves have an important part to play in constitutional discourse (and not simply by means of electing representatives who transform the Constitution in various ways, such as those described by Bruce Ackerman). There's rather less written about how the people themselves conduct themselves in constitutional discourse.

Last night I read a characteristically elegant essay by L.H. (Lash to his friends) LaRue, "Speaking Outdoors," in the Georgia State University Law Review (vol. 19, p. 1135). LaRue describes the ways in which he, as a lawyer, engaged in constitutional discourse with non-lawyers when he worked in the Department of Justice in the 1960s. He frames his discussion by noting that he used in those discussions the narrative techniques he also used as a trial lawyer.

Here's my take on LaRue's presentation (which might not be his): Popular constitutional discourse is continuous with, not distinct from, lawyers' constitutional discourse along many dimensions. (This resonates, I think, with the old critical legal studies claim that there is nothing that sharply distinguishes legal reasoning from political argument.) Non-lawyers who engage with the Constitution refer to the framers, to the nation's traditions, to what they know of how the courts have handled similar questions, and so on. The mix might be somewhat different, largely because of differences in familiarity, but there's nothing that lawyers (typically) rely on that non-lawyers (typically) don't. But, LaRue argues, the way non-lawyers "do" constitutional discourse is different -- in particular, has a larger narrative component, in which the speaker (as teachers of writing might put it) shows what the Constitution means rather than tells it to us.

I think that's a really interesting and promising analysis, opening up a way of looking at the problem that I don't think I've seen elsewhere.

Posted 2:19 PM by Mark Tushnet [link] (13) comments

Antonin Scalia as Felix Frankfurter

Mark Tushnet

I've been struck by some similarities between Antonin Scalia and Felix Frankfurter, despite their obvious jurisprudential differences (Frankfurter the defender of fact-sensitive balancing [sometimes], Scalia the advocate of rule-based decision-making). Both were politically active law professors before they became judges. And, like Frankfurter when he was on the Court, Scalia has an active group of enthusiastic supporters in the legal academy. (Frankfurter was born too soon for the Web, but I'm sure that, had it been possible, there would have been the equivalent of http://ninomania.blogspot.com/ for Frankfurter.)

Push the suggestion of similarity a bit, and what might we see? Frankfurter reputation has declined substantially -- even from the time when I was a law student -- to the point where he's regarded, I think, as at most a moderately interesting failure. I think that -- at this point -- there's some reason to think that Scalia might be the same. (I've inserted the qualification because "failure to this point" might turn out to be "success in the end" depending on who is appointed to the Court before Scalia throws in the towel.)

Consider some of Scalia's "signature" issues. (1) The fundamental illegitimacy of Roe v. Wade as a matter of constitutional law. For a while it looked as if Scalia might prevail on this, but when push came to shove, first Justice O'Connor in Webster and then Justice Kennedy in Casey jumped ship (to mix metaphors). (2) More broadly, a deep skepticism about the doctrine of substantive due process. Again, it looked as if Scalia had prevailed when a majority of the Court appeared to sign on to his approach in Washington v. Glucksberg, the right-to-assisted-suicide case. But, just a year later in rather obscure case, a majority described substantive due process doctrine in terms Scalia derided (County of Sacramento v. Lewis). Then, of course, the doctrine came back in full force in Lawrence v. Texas. (3) Affirmative action. The same pattern here -- early indications of possible success, then ultimate defeat in the Michigan affirmative action cases.

Lots of people have noticed the items I've listed. There's a fourth, which I think has been overlooked. (4) A campaign against the use of legislative history in statutory interpretation. Here the pattern's a bit more interesting. Scalia's early successes were quite substantial. And then they started to erode. (My sense is that the key event was Justice Breyer's arrival, giving the supporters of the use of legislative history a powerful intellectual counter-force who could bring real-world experience -- as Chief Counsel to the Senate Judiciary Committee -- to bear on the question.) We started to see opinions in which a majority discussed legislative history in a separately labeled subsection, from which Scalia could dissent (or concur only in the judgment). At the end of last Term, for the first time (I think) since Scalia's campaign began the Court issued a decision in which the discussion of legislative history was fully integrated into the majority opinion, leading Scalia to write a fairly acerbic opinion concurring in the judgment (Intel Corp. v. Advanced Micro Devices).

We can speculate a lot about why all this happened. My own view is that the explanation is mostly that the troops actually never were there to support Scalia's campaigns in their full version, but that Scalia and other similar conservatives didn't realize it until too late. I also think that a small part of the explanation lies in Scalia's personality, his desire to write in ways that hit the headlines but that can alienate his colleagues -- a character trait that is reinforced by the support he gets in the legal academy and by conservative op ed writers.

More interesting, I think, is that Democrats who use the fear of additional appointments like Scalia to rally their troops may have made Scalia into one of his own creatures -- "a ghoul in a late-night horror move that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried. [It] is there to scare us [when] we wish it to do so, but we can command it to return to the tomb at will." (From his concurring opinion in Lamb's Chapel v. Center Moriches Union Free School Dist.)

Now for the advertisement: This argument is a subsidiary one in my forthcoming book, A Court Divided: The Rehnquist Court and the Future of Constitutional Law, to be published in January by W.W. Norton. I expect that I'll pull additional bits of the argument out for later postings.

Posted 1:48 PM by Mark Tushnet [link] (18) comments

Guest Blogger: Mark Tushnet

JB

I'm delighted to announce that Mark Tushnet of Georgetown Law School, who is one of the most prolific and most important constitutional thinkers in the United States today will be guest blogging on Balkinization. Please give him a warm welcome.

Posted 11:21 PM by JB [link] (13) comments

Do the Democrats Have a Constitutional Vision?

Mark Tushnet

David Strauss has an interesting article in the current issue of Legal Affairs, arguing that the Republicans have an agenda for constitutional law while the Democrats do not. ("Not that there's anything wrong with that.") He's right in one sense, but wrong in another, I think.

Strauss ends his article by discussing the Court's recent "federalism" decisions, calling that part of the Republican agenda the "sleeper" issue. For Strauss, those decisions threaten to "eviscerate Congress's power over important areas of national life." The interesting question, I think, is why Democrats should -- because of their constitutional commitments -- care about ensuring that Congress have ample power. That is, it's hardly attractive to favor national power just for the heck of it.

And Democrats don't. They care about national power because of how that power has been exercised. Democrats take pride in having created the Social Security system and Medicare. Add to those the range of national antidiscrimination laws -- including most recently the Americans With Disabilities Act, the potentiality of which the conservative Court (joined fairly often by some of the Court's "liberals") has substantially scaled back -- and you can indeed get a sense of the Democrats' constitutional vision.

No one has really given that vision a good label, but something like "equal dignity and respect" will do provisionally. The statutes that are at the heart of the Democratic constitutional vision are all designed to promote the equal dignity of and respect given all Americans (a class that, at least for some purposes, probably includes some permanent resident aliens). Note that I've been speaking of statutes that embody the Democrats' constitutional vision. My idea here is related to, but somewhat different from, Bruce Ackerman's thought that sometimes political developments really amend the Constitution even though the text remains unchanged, and Cass Sunstein's description of constitutive commitments, relatively stable normative commitments -- embodied in statutes or executive policies -- that come to be understood by Americans as capturing fundamental aspects of national identity. Ackerman and Sunstein are concerned more than I am, I think, about how courts deal with non-textual amendments or constitutive commitments (although I wouldn't want to place too much weight on that assertion).

The difference between my approach and Ackerman's and Sunstein's indicates one problem with the Democrats' constitutional vision, which also emerges in Strauss's article. Strauss acknowledges that Democrats do have an agenda, the preservation of choice with respect to abortion. Plainly that commitment is consistent with one understanding of "equal dignity and respect" (although not with every such understanding). So too the likelihood, which Strauss also acknowledges, that Democratic appointees to the courts will be somewhat more receptive to claims by gays and lesbians than has been the case in the past. As Strauss puts it, Democratic judges would probably "slightly accelerate the trend" visible in Romer v. Evans and Lawrence v. Texas. So -- not that it should come as a surprise -- courts as well as legislatures can promote equal dignity and respect.

And here's where the problem arises for the Democrats' constitutional vision. As I have described it, that vision has no significant institutional component. By "institutional component," I mean some aspect of the constitutional vision that says, "These aspects of the promotion of equal dignity and respect are best done by the legislature, while these other aspects are best -- or at least appropriately -- done by the courts." For Democrats, I believe, statutes can promote equal dignity and respect. So can court decisions.

The absence of an institutional component leaves Democrats committed this vision open to the charge of opportunism: They will take "equal dignity and respect" wherever they can get it. If Congress provides a favorable venue, fine; if not, try the courts; if the courts are unfavorable too, defend the prerogatives of state legislatures and city councils to act as laboratories of experimentation (as has happened with domestic partnership legislation, for example, or "living wage" ordinances). (David Barron's aticles on local government bring this out quite dramatically.) Strauss writes, "the issues that the Democratic Party most cares about these days?jobs, health care, helping the middle and working classes overcome economic dislocations, protecting Social Security and Medicare?are not ones about which the courts can do very much." But, guided by a commitment to equal dignity and respect, courts could actually do something about those matters. (Sunstein argues that doing so was on the agenda of the Warren Court when it ended with Richard Nixon's appointments to the Supreme Court.)

Now, from a couple of points of view, there's nothing discreditable about opportunism. Political activists take their victories however they can get them, as is clear from even a brief conversation with activists who work on issues associated with equal dignity and respect. And, of course, no political scientist would be surprised to discover that a political party was opportunistic with respect to getting its principles embodied in public policy.

So, the question I have about the Democrats' constitutional vision is this (or, are these): Is there already some institutional component to that vision, one that I haven't been able to discern? If not, what might the institutional component be? Or, is there anything wrong with a constitutional vision that lacks an institutional component (and is thereby left open to the charge of opportunism)?

(I ask the question in this final form to raise the possibility -- which I believe to be true -- that Republicans don't even have a constitutional vision, but are (merely) opportunistic. What Republicans have done, though, is capture the rhetorical high ground by asserting that opportunism is bad and that they are principled while Democrats are opportunistic.)

Posted 9:23 PM by Mark Tushnet [link] (13) comments