Balkinization  

Wednesday, July 20, 2005

Legislating From the Bench

Mark Graber

President Bush demonstrate his usual capacity for double-speak last night when he praised Judge John Roberts as a jurist who would "not legislate from the bench." As note on this blog and more extensively in Keck, THE MOST ACTIVIST SUPREME COURT IN HISTORY (mandatory reading during the confirmation hearings), the Rehnquist Court does nothing but "legislate from the bench" with Justices Thomas and Scalia being the most active judicial legislators. Consider the numerous areas in which they impose or would impose limits on state and federal officials.

1. They insist most campaign finance laws are unconstitutional.
2. They insist that most regulations of advertising are unconstitutional.
3. They insist that state legislatures can do little to protect abortion clinices from organized mayhem.
4. Thomas has suggested that elected officials have very limited capacity to regulate handguns.
5. They would use the fifth amendment to dramatically limit the capacity of local legislatures to pursue urban redevelopment.
6. They regard the fifth amendment as also limiting environmental regulations and limiting conditions that local legislatures can attach to private development.
7. They insist that affirmative action is unconstitutional, even though the persons responsible for the equal protection clause passed numerous laws providing special benefits to persons of color.
8. They insist on sharp limits on federal power to remedy 14th amendment rights, insisting for example that Congress may not punish rape or even pass laws ensuring that state courts are accessible to the handicapped.
9. They believe that states have an unenumerated right not to be sued, unless the law is a legitimate application of the 14th amendment (but see 8).
10. They believe that states employees have an unenumerated right not to help implement federal laws, even though the first congress repeatedly so conscripted state officials.
11. It is highly probably they believe that many federal spending programs are unconstitutional.
12. They insist that government officials must allow religious groups access to schools and programs aimed at securing secular goals.

The crucial points are, first, that no respectable historian believes that this catalogue of constitutional limitations reflect the original meaning of the constitution, and second, that many are, if anything, inconsistent with the constitutional text. Now, if one points out that liberal activism is no more rooted in text or history, fair enough. But the debate over John Roberts ought to be whether we want a conservative activist, who will legislate from the bench in ways approved by President Bush and his most conservative supporters.

Comments:

Follow the logic of this argument:

1. Bush says that Roberts would not legislate from the bench.

2. Graber thinks that Scalia and Thomas, and the Rehnquist Court generally legislate from the bench all of the time.

3. Therefore it's doublespeak to say that Roberts won't.

Forgive me if this makes zero sense.



Do you care to explain why any of your enumerated complaints is inconsistent with the text or original meaning of the Constitution, or does your say-so just make it so? I'm not a lawprof, but to take a crack at just a few of them:

#1-3 are presumably First Amendment holdings. With the exception of Hugo Black, my impression is that the original meaning of the First Amendment is unclear, and directly applying the "text" means leaving all sorts of things unprotected that are expressive but not "speech," while also abolishing causes of action for defamation and immunizing bank robbers who merely give commands. The Court seems to have struggled to formulate coherent First Amendment principles. The first three of your complaints are merely disagreement with one side of a robust debate, not an indictment of the Rehnquist court as activists.

#6 Depends on your view of "Takings." Back when the Fifth Amendment was written, there were no environmental regulations or zoning laws. Does this mean that all environmental regulations or zoning laws are constitutional? It's an interesting question. Again, your post amounts to nothing more than the idea that those who disagree are activists.

#7 is the old anticlassification vs. antisubordination debate. Even though the Supreme Court has never adopted "color-blindness" as a gloss on the Fourteenth Amendment, it's not so outlandish to suggest that they should. After all, those are the words of Justice Harlan's dissent from Plessy v. Ferguson.

#12 is, again, a consequence of the regulatory state and an example of Justices taking one side in a debate. When the government subsidizes everything and then excludes religion, is it interfering with Free Exercise or just following the commands of the Establishment Clause?

For the others, I don't have the time or the requisite background to opine, but it seems to me that your definition of activism is either (1) judges who would ever find a law unconstitutional, or (2) judges who disagree with you.
 

This new definition of activist judge is (1) circulating in elite circles only; (2) isn't fooling anyone; and (3) may possibly be one of these Lakoff-inspired framing scams.

Under the new definition, if a law violates the plain text of the Bill of Rights, strking it down is "activist," while inventing an entirely new substantive constitutional legal right out of thin air or out of penumbral emanations is "not activist." OK, sure, whatever you say. But please don't think you are fooling the public.
 

"Follow the logic of this argument:

1. Bush says that Roberts would not legislate from the bench.

2. Graber thinks that Scalia and Thomas, and the Rehnquist Court generally legislate from the bench all of the time.

3. Therefore it's doublespeak to say that Roberts won't.

Forgive me if this makes zero sense."



Well hasn't Bush also praised Scalia and Thomas and named them as two justices he admires? So it seems contradictory to me to praise Roberts for not legislating from the bench (and speaking against judges that do it), but also to say he admires Scalia and Thomas-who legislate from the bench.
 

Actually, I'd bet that we could people with Ph.D.'s in history and academic appointments to support each one of the points you enumerate. It is easy, in your cocoon world, to think that what is openly expressed in the faculty lounge is the entire spectrum of educated opinion. Even within the academy, there are dissenters, though of course most of them keep quiet, knowing what is good for them. As I did while collecting my degrees.
 

Aw, for crying out loud. What justice has not legislated from the bench, if not since Marbury v. Madison then at least since "a switch in time saves nine" (the FDR court)? With all due respect to our hosts, one thing gives me comfort about the appointment of Judge Roberts -- he has no academic background. It is a very good thing to appoint someone who has actually practiced law and not just thought and talked about law.
 

I've seen things I've disagreed with strongly on Balkinization before, but this is the first time I've disagreed with something so viscerally as to be bothered to jump through Blogger's hoops to creat an ID.

Mark, I would echo farnsworth's comments, insofar as I hope you're kidding. If your criteria for "legislating from the bench" is really so impoverished that you consider a view on the constitution's limits on government and the judiciary which differs from your own exalted view, then I worry for you. This is also aimed at Carlito - the whole point being that Scalia and Thomas very, very rarely "legislate from the bench".

I have argued that judicial activism - I was speaking specifically about striking down statutes, but my view applies to the general heading of "legislating from the bench" - only applies when a Justice advances an argument which actually departs from the Constitution. While I'm sure Scalia and Thomas have both departed from the Constitution (and Original understanding) from time-to-time, a general statement that they "legislate from the bench" would be preposterous even were they not surrounded by Justices such as O'Connor, Breyer and Ginsburg, by comparison to whom they stand as models of judicial restraint.

As to point 1 - I agree that campaign finance reform is probably a good idea. I'm not convinced, though, that McCain-Feingold is constitutional. Just because something is a good idea doesn't make it constitutional (a point that Roberts explicitly advanced during his previous nomination hearings).

As to point 2 - my own view is that the original understanding of the first amendment primarily applied the free speech guarantee to political speech, and so I would be far less willing to strike down limitations thereon than Scalia, for example. But that does not mean Scalia is "legislating from the bench" - it means he has a different view of that clause than I do.

To point four - those damned second and fourteenth amendments. They're such a bitch for liberals. If only the constitution didn't preclude "regulat[ing] handguns", and if only incorporation didn't safeguard the rights of US citizens against the states! As Clarence Thomas put it a few years back, "Aside from amendment according to Article V, the Constitution’s meaning cannot be updated, or changed, or altered by the Supreme Court, the Congress, or the President." He might also have added liberals in the legal establishment to his list of groups who can't alter the meaning of the constitution, but for the fact that it seems blindingly obvious to everyone outside of that group. (Sidebar: I remain hugely amused that all liberals turn into quasi-Originalists where the 2nd is concerned - and tenaciously, too, given how often they're repudiated, most recently to my knowledge by Randy Barnett).

Point 5 - Roe or Kelo. Pick one. I have also discussed the stupidity of the Kelo ruling here and here.

Point 8 - more substantive due process hogwash.

Point 11 - it is absolutely CERTAIN that MANY federal spending programs are unconstitutional. Let's see how deferential liberals feel when it's the establishment clause, rather than the commerce clause being stretched by Congress.

Sorry Mark, but your post is nine-tenths pure hogwash. I dissent.
 

let's face it guys, and that includes mark, and all the posts in response -- ALL judges legislate from the bench. believe it or not that is their job. they interpret the constitution and the legality of laws passed by state and federal legislatures. even those who say that they are strict constructionists are legislating from the bench. they are simply applying their own interpretation to the constitution and the statutes before them.

to scream at one judge or another because he or she is "legislating from the bench" is a ridiculous argument. it would be nice if all the holier than thou folk, conservative and liberal alike, would simply be truthful, and instead of using the nonsensical codephrase, "legislating from the bench", admit that that is precisely the job of a judge, and when they use that phrase, they simply mean "i disagree with this particular ruling. note that nobody ever says that a judge was legislating from the bench when they agreed with the opinion.
 

This comment has been removed by a blog administrator.
 

I've never been involved with US law within a professional or academic capacity, which will become quite obvious in a moment. Nonetheless, I wonder about the entire focus between this original post and followon dissents.

That is, should we care about "judicial activism" as a consideration, vs. "ideological activism" (a made-up term), perhaps?

By this, I mean that my cursory exploration of how the Supreme Justices manifest their apparent or stated jurisprudence seems often to be in line with their ideological bents with regards to how socially, politically and economically conservative<->liberal they may be. Not at all a 1:1 mapping is meant here - that is, I've seen writings in cases by Thomas which supported supposedly more populist and "liberal" desires in some cases, but it was not merely due to how his unique combination of originalism and construction simply played out, it seemed. I have often seen "conservative" tones in his reasons for using one reference vs. another when, say, he reasons for deferring to Legislators rather seeing a need for the Supremes to step in and decide a point. He may label some plaintiff issues as "silly", yet others as "serious" -but the justification is often appears to be derived from personal priorities and social or governmental perspectives, rather then merely originating from some unchanging set of originalist or textualist interpretations.

Scalia is obviously different in his specifics and stylistic grounding, yet seems (again, from my *extremely* limited readings) to generally utilize his chosen jurisprudence primarily because it falls in line with how his generally conservative ideologies would *allow* him to argue and decide points more often than not. He may claim that his legal science is the best available, but perhaps that only should mean, "best for generally supporting Scalia's worldview - which includes how law should work in the US - and is not necessarily neutral in how he utilizes it to final ends". Yeah, I've seen emotional debate on much of his reasoning, and am not knocking original meaning as it has importance (academically, practically, theoretically) to others - just further staking out the basis for my larger point by using his specific case at the moment.

I can claim similar things for the more moderate Supremes, of course - it's possibly something on sliding scale towards a Living Constitution view and so forth. I don't see why anyone should necessarily criticize a jurist who utilizes different styles from the bench, frankly - everyone will use what suits them most comfortably, is partly my point. I've lived and worked in ivory towers of theory for years, so am used to seeing people live within perspectives which they consider most correct, yet actually it tends to reflect their own personal bent in related matters quite comfortably beyond the academics of it all. Again, not meant as a 1:1 necessary mapping, but it's unusual in theoretical and interpretive areas for me to see personal alignments with methods or styles that a researcher tended to find did not allow them to locate a satisfying end goal, let alone procedure which felt most proper. This seemed true even in the hard sciences, such as mathematics.

Regardless of how one's jurisprudence affords them the ability to rationalize what some would call "legislating from the bench" or "judicial activism", I really don't see that as important compared to their personal, ideological bent. Perhaps I refuse to see judging of US law as involving more science than art, which seems to be implied in many comments at this site. Sorry, but again, I'm outside of the area, taking a quick peek in. This is not meant to slam anyone, just wondering if my general observation has any rationality behind it.

So, Scalia might argue the definition of a single word, such as . . . "revoke" . . . far beyond what many would call reasonable, but do so without ever falling seriously out of his stated+demonstrated legal philosophy and methodology. Yet, in such an act, he might belie using his associated framework for decision-making to sometimes push for what he feels is ideologically correct at a personal level, as well. I don't mean to imply that this is selfishly-motivated or malicious behavior, merely that it's not fully neutral in some scientific manner of deciding the merits of a case. Simply stating that one relies on original meaning is, in itself, not supporting a conservative public perspective. But, it can easily be used in such a manner, it seems.

I can't fully prove this and won't try - just going for a big swash with a general brush for a larger point. And, I won't go so low as to use Bush v. Gore as an exception which proves my fuzzy "rule" with someone like Scalia as the example: because it doesn't.

Just thinking out loud, as I simply don't care about who is an activist or not on the bench. In the end, we live with the final decisions - none of us will agree with or enjoy any one court's fully set of decisions, however they got there. And frankly, with a federal legislature that seems increasingly bent on representing private interests over public, any judicial voices which represent both consistency and conscience to attempt balancing the more egregious extremes and limitations being placed upon people in this country for "politically moral" and wildly speculative economic or security reasons is actually fine with me to try for awhile. I'm not ideologically thrilled with what is currently being profiled about the current nominee, and that relates to my current viewpoint.

Just musing slightly outside the box, hopefully. Not to be taken terribly seriously - maybe I know just enough to be dangerously ignorant.
 

I agree judges at the appellate level, particularly the Supreme Court, customary legislate from the bench.

The hypocrisy of the Right, as I see it, lies in its endless hyperbolic rhetoric against appointing judges that do so.

That may play well to the peanut NASCAR dad gallery, but it's utter nonsense.
 

Gotta agree with Simon, though I reached that breaking point of creating a fake blog some weeks ago.

"Legislating from the bench" does NOT mean striking down laws that are genuinely unconstitutional, or upholding laws that really are constitutional, just because the person using the term happens to dislike the result. Really, your list is so crazy at points, I wonder if you're losing it.
 

Mark, your point about affirmative action left me a bit confused. You note that there were reconstruction era laws giving special privileges to minorities, presumably to redress the injuries of slavery.

Redressing historical wrongs to blacks was not the rationale of the Michigan affirmative action cases and, asI seem to recall, no one believed that such a rationale would be constitutional. The rationale in those cases was diversity. The diversity argument is that schools must be allowed to admit under-qualified minorities because the presence of such minorities improves the education that the qualified applicants get. The purpose of affirmative action, at least as it is justified in terms of diversity, is not to help minorities, it's to help the qualified applicants (except for an ancillary benefit of giving minority communities "role models").
 

Mark, your point about affirmative action left me a bit confused. You note that there were reconstruction era laws giving special privileges to minorities, presumably to redress the injuries of slavery.

Redressing historical wrongs to blacks was not the rationale of the Michigan affirmative action cases and, asI seem to recall, no one believed that such a rationale would be constitutional. The rationale in those cases was diversity. The diversity argument is that schools must be allowed to admit under-qualified minorities because the presence of such minorities improves the education that the qualified applicants get. The purpose of affirmative action, at least as it is justified in terms of diversity, is not to help minorities, it's to help the qualified applicants (except for an ancillary benefit of giving minority communities "role models").
 

Mark,

Two can play this game.

The world according to Mark Graber:

1) Your home may be taken away from you and given to Pfizer.

2) The framers of the Bill of Rights and the 14th Amendment believed that you have the right to gay sex in the privacy of your home, but not a right to your home.

3) Congress can ban me from sneezing, for my sneeze on the Upper West Side can cause a hurricane in Florida, thereby affecting this year's orange crop. My sneeze is now interstate commercial activity.

4) I cannot paint as a hobby, for it has replacement effects on the interstate market in art. If I paint a portrait of my dog and hang it on a wall, I don't have enough wall-space to hang a picture I could buy in North Carolina. Therefore, I am affecting the market in arts and crafts in North Carolina. My hobby is now interstate commercial activity. Doesn't matter that I do it at home either, since my home is no longer really my property either. It belongs to Pfizer if the New York City zoning board says so.

5) The Second Amendment really only means that the state government has a right to own guns.

6) The First Amendment and Equal Protection Clause means that the government gets to credential who is a member of the "press" and who is not. Paul Krugman gets to froth at the mouth promoting the Democratic Party under the guise of the First Amendment, while I get a fat FEC fine for saying "Vote GOP" on my blog. Oh, and Thomas Paine now has to register as a Political Action Committee.

7) The framers of the Constitution believed that Congress can enter Paul Revere's workshop and demand that his apprentice be given ergonomic furniture and hammer, lest he gets carpal tunnel.

8) The framers of the Constitution believed that Congress can ban religious speech by public school teachers.

Woo hoo! Where do I sign up!?
 

I agree with Yevgeni Vilenski, God help me. No "liberal" or "conservative" Supreme Court seems to give a _ _ _ _ about a general right to liberty.
 

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