Friday, January 13, 2006

New Blog You Ought to Bookmark

Marty Lederman

There's a new law blog in town -- LawCulture, established by Viriginia Law Prof and L.A. Times columnist Rosa Brooks and UCLA Law Prof Jennifer Mnookin, and featuring (or soon to feature) such terrific writers as David Barron, Peter Brooks, Jessica Silbey, and occasional Balkinization contributor Kim Lane Scheppele. The "focus" of the blog, such as it is, will be on law, culture, politics and life inside and outside of the legal academy -- that is to say, on everything. Well worth a look.

Wednesday, January 11, 2006

The Constitutional Catechism


The Alito hearings make clear that at this point in American constitutional history, a Supreme Court nominee must recite a catechism of belief if he or she is to be confirmed.

The nominee must state that he or she (1) believes that there is a right to privacy, (2) that Griswold correctly protected this right of privacy at least as to the right of married persons to purchase and use contraceptives; (3) that Eisenstadt -- which extends Griswold to single persons-- is correctly decided as to its result; (4) that Brown v. Board of Education was correctly decided, (5) that Plessy v. Ferguson was incorrectly decided, and (6) that the one person one vote principle in Reynolds v. Sims is correct.

The nominee must also agree that Roe v. Wade and Casey v. Planned Parenthood of Southeastern Pennsylvania are Supreme Court decisions that are entitled to the weight of stare decisis. However, the nominee need not agree that these decisions are correct or beyond reexamination in the way that Griswold, Eisenstadt, Reynolds v. Sims and Brown are.

What explains this particular catechism? It is not that the reasoning of the original decisions in Reynolds v. Sims, Griswold, Eisenstadt, and Brown is particularly more accomplished than the reasoning of the Court in Roe and Casey. All of these decisions had problems with the way that they were reasoned. Brown is famous for its-- shall we say-- condensed account of the reasons why Plessy should be overruled (and it does not even overrule Plessy, but simply says that Plessy does not apply to elementary and secondary education).

No, the reason why this particular catechism has developed is that it reflects the views of the current dominant national political coalition about what constitutional questions are off the table for revision. The cases I have just mentioned were not always beyond question in the past, even years after they were originally decided. They were, at one point, controversial. But by the 1964 Civil Rights Act, Brown had entered the pantheon of cases that had to be correct, and one of the interesting side effects of the Bork hearings in 1987 was that Griswold had also entered that list. And we can be quite sure now, as a result of the Alito hearings that the list also extends to Eisenstadt-- which extends Griswold to the right of single persons-- and Reynolds.

The flip side of being settled in this way, is being still up for grabs for future revision or even outright overruling. The coded expression for this is that the issues raised in the previous decision (whether Roe, or Casey, or something else) might someday come before the Court so that the nominee must not prejudge whether the decision should be retained. Obviously the "issues" in Brown and Reynolds come up all the time in current cases-- think about the affirmative action cases and redistricting cases that have come to the court in recent years-- but that is not what Alito or any other nominee really means. The idea is quite different-- that one can disagree about the legitimacy and or scope of the case and still be confirmable, that is, within the mainstream.

If nothing else, Supreme Court nominations have this interesting effect-- they give us clues about what has entered the constitutional catechism, and therefore what different parties have given up fighting about and what they still believe is worth contesting in order to please their particular constituencies. The reason why nomination hearings have this effect is that no Administration wants its nominees to be thought outside the mainstream. To forestall that accusation, members of the Administration must decide what constitutional issues the nominee must accept as beyond question, and, conversely, what constitutional questions are still worth fighting over.

Roe and Casey are perfect examples of this trend. In the views of many Republicans, they are still on the table for revision or outright overruling. Senator Feinstein adverted to this fact indirectly when she said that she had a suspicion as to why Alito was "willing to say that you believe one man, one vote is well settled and you agree with it," but could not say that same thing about Roe: "If you say one thing, you upset my friends and colleagues on that side. If you say the other, you upset those of us on this side. But the people are entitled to know."

Note, however, that the constitutional status of Roe and Casey have mutated over time, and we can see this in the rhetoric that John Roberts and Samuel Alito have used. Both state that Roe and Casey are precedents of the Court entitled to the respect of stare decisis. That may not seem like much to pro-choice advocates, but what it does suggest is that Supreme Court nominees may no longer denounce Roe directly as Bork did in his hearings. I would venture to state now that any nominee who directly and forthrightly stated that Roe and Casey were illegitimate decisions and should be overturned would not be confirmed.

That is important not because it means that Roe has become fully accepted. It has not. What it does mean is that Roe's status has not eroded as many pro-life advocates had hoped it would, even with a Republican President, a Republican controlled Congress, and a Republican majority in the federal courts and the U.S. Supreme Court. The constitutional catechism that Supreme Court nominees must recite is a way of taking the temperature, so to speak, of particular constitutional controversies and the degree to which they have reached settlement. What is remarkable about the Roberts and Alito hearings is not that both nominees have resisted supporting Roe but how far they feel they must be willing to go in disguising their actual views about it.

Mansfield on Bush: Machiavelli Made Me Do It

Guest Blogger

David Luban

The January 16 issue of The Weekly Standard contains a remarkable article by Harvey Mansfield, the William R. Kenan Jr. Professor of government at Harvard, in defense of broad executive power. Mansfield is one of the best-known followers of Leo Strauss in academic political philosophy - a notable theoretician, conservative publicist, and (not so incidentally) translator of Machiavelli's The Prince.

In brief, Mansfield argues that the U.S. Constitution creates a strong executive because the framers understood that the rule of law won't suffice in an emergency. When the chips are down, the strong executive must seize the reins and do whatever it takes - and (like the Weimar Constitution whose emergency clause inspired Carl Schmitt to identify sovereignty with the "power of the exception") our Constitution builds the power of the exception into the President's role. Unlike the currently notorious arguments of John Yoo, based on (selective) use of founding-era history, Mansfield defends the monarchical executive through philosophical abstractions ("executive power represents necessity", "The Constitution mixes choice and necessity"). The article is loaded with gravitas, and Mansfield obviously wants to sound deep.

But the depth is all on the surface. Read with care, Mansfield's arguments are profoundly silly.

1. "But enemies, being extra-legal, need to be faced with extra-legal force." A total non sequitur. Worse: mere games with words. A pickpocket is extra-legal, but it in no way follows that he needs to be faced with extra-legal force.

2. "...the first republic with a strong executive." I don't know if that is true. But if so, so what? Before the U.S., there had been only a handful of republics (Rome, Geneva, Florence, a couple of other cities) - but thousands of monarchies with strong leaders. Leadership above the law has been humanity's longest-running experiment in government, not some brilliant innovation of the framers. This sentence is merely slippery in its suggestion that the framers' big, brilliant idea was one-man rule. Until Yoo, I don't think anyone had ever seriously supposed that the framers were aiming to reinstitute monarchy.

3. "...extra-legal powers such as commanding the military, making treaties (and carrying on foreign policy), and pardoning the convicted, not to mention a veto of legislation. To confirm the extra-legal character of the presidency, the Constitution has him take an oath not to execute the laws but to execute the office of president, which is larger." Dishonesty piled on dishonesty; three of them in the first sentence alone:

A. "extra-legal powers such as commanding the military." Not an extra-legal power, because military commanders are governed by law and were at the time of the framing. The American articles of war of 1775 and 1776 require soldiers to obey lawful orders.
B. "extra-legal powers such as making treaties". Huh? Treaties require senate advice and consent, and at that point they become law. Nothing extra-legal there.
C. "...pardoning the convicted." I suppose it's an extra-legal power, although in practice a pretty trivial one. But criminal juries also have the power of nullification, so this isn't a uniquely executive power.
D. "...veto of legislation." Not an extra-legal power, since the veto can be overridden. All the veto really means is that the President can force Congress to pass legislation by a super-majority rather than a simple majority. It's a wrinkle in the law, not a violation of it.

As for the second sentence, it conveniently mentions the oath clause and ignores the take care clause. The President shall (i.e., is required to) take care that the laws are faithfully executed.

So everything in these two sentences except "pardoning the convicted" is nonsense.

4. "Yet the rule of law is not enough to run a government. Any set of standing rules is liable to encounter an emergency requiring an exception from the rule or an improvised response when no rule exists. " True enough. But nothing whatever follows about the Schmittian "power of the exception" falling to the executive. If the executive turned out to be the problem (President goes insane and is about to push the nuclear button), that would be an emergency that would require someone to break the rules and stop the President from launching an attack that his commander-in-chief power might (hypothetically) entitle him to launch. Schmitt's book begins: "Sovereign is he who holds the power of the exception." If Kissinger instructed the generals not to follow Nixon's orders if they seemed wacky, Kissinger was sovereign. If Nancy Kissinger whispered to the generals that they shouldn't follow Henry's instructions when he was in his cups, and the generals went along with her, she was sovereign. Schmitt's sentence is a definition of what a sovereign is, namely whoever can in fact cause rules to be suspended. In no way does it follow from this definition that the chief executive always gets to break the law. Schmitt himself moved to the latter proposition - but it's a logical blunder, the same one that Mansfield commits.

Therefore, "In the Constitution executive power represents necessity in the form of response to emergencies. It anticipates that events will occur or situations will arise that we cannot anticipate through our laws; it anticipates what we cannot anticipate" comes from nowhere except Mansfield's own imagination. Every branch of government is constrained by law. Every branch of government could, under some circumstances, break the rules in an emergency (under the time-honored maxim "It's easier to get forgiveness than permission").

5. "The Federalist tells us that a republican constitution needs energy and stability, terms taken from physics to designate discretion and law." Last time I checked, physics does not include the concept of discretion. A speeding bullet has loads of energy but no discretion about where to go. The Straussians have always been famous for having contempt for physical science matched only by their ignorance of it.

6. "Secrecy is necessary to government yet almost incompatible with the rule of law....Yet secrecy is compatible with responsibility because, when one person is responsible, it does not matter how he arrives at his decision." How can you hold anyone responsible for something if they conceal the fact that it happened?

Thus: "We do not need to know, for example, how important Vice President Cheney is; we can praise or blame President Bush for choosing to be advised by him." Read this sentence. Then read it again. Then scratch your head and ponder on what basis we can praise or blame Bush for choosing to be advised by Cheney if we don't know whether Cheney advises him.

7. "...American society, in imitation of American government, makes so much use of one-man rule. In all of its institutions--corporations, unions, sports teams, gangs, and universities--our republic likes to place power in the hands of one person, and then hold him responsible." I don't know much about the structure of the Mafia or Mara Salvatruccha, and I suspect that Harvey Mansfield doesn't either. Do they have one-man rule? Is the capo held responsible? Anyway, I didn't think that either of these gangs were "institutions of our republic," but maybe, if you believe in the power of the exception and the need for extra-legality, that little difficulty drops away. Does Harvard enjoys "one-man rule"? Thank heaven that none of the universities I've ever been associated with has had it. Who's the one-man ruler of the Yankees? Steinbrenner or Torre? If the former, who's holding him responsible? If the latter, how much power does he have? None of this stuff seems even close to correct; but the fact that Mansfield looks at American society and sees one-man rule everywhere speaks volumes about him.

8. "From this standpoint the 1978 Foreign Intelligence Surveillance Act is a mistake. That law makes surveillance subject to approval by a secret court of judges, who are thereby placed in a false position. If they give approval readily, they go against their profession as judges and fail to give judicious consideration to each case. Yet if they think as judges in terms of criminals rather than enemies, that may do harm to the country." This displays a remarkable level of misunderstanding of what judges do (remarkable if you hold a named chair in Government at Harvard). Whether judges give approval readily or not depends on what the legal standard is. If it's "probable cause" or "some evidence", or even less, the law tells them to give approval readily. If it's a higher standard, the law tells them to give approval less readily. They should give judicious consideration to each case even if the standard is so permissive that they always give approval. Mansfield seems to suppose that judges are required to "think in terms of criminals" - a TV caricature of what judges do.

9. "We note that President Bush's critics do not want him to stop surveillance; they just want him to do it legally--as if legality could guarantee success and morality could make our enemies give up. " More non sequiturs. Nobody who wants Bush to obey the law think that by doing so they guarantee success. Nor, by the way, does breaking the law guarantee success. Nothing guarantees success. Nor, obviously, do Bush's critics maintain that morality could make our enemies give up. Morality isn't a magic bullet to use against your enemy. Maybe Mansfield ought to notice that immorality isn't a magic bullet either. (Steve Holmes's brilliant essay in The Torture Papers acutely points out that the Bush Administration is engaged in magical thinking: if our enemy violates civilized standards, we prove that we're serious by doing so ourselves. If they're terrorists, we become snoops, liars, and torturers, which proves that we play to win.)

What's most remarkable about this article is that nearly every sentence in it is false.

Monday, January 09, 2006

Analysis of the Legality of the Secret NSA Warrantless Electronic Surveillance Program

Marty Lederman

This letter was sent today to congressional leaders from 14 law professors and former federal government officials. In it, we critique the Department of Justice's legal argument in support of the lawfulness of the secret NSA surveillance program. [UPDATE: The letter can also be viewed on the New York Review of Books website.] Here's the Introduction:

We are scholars of constitutional law and former government officials. We write in our individual capacities as citizens concerned by the Bush Administration’s National Security Agency domestic spying program, as reported in the New York Times, and in particular to respond to the Justice Department’s December 22, 2005 letter to the majority and minority leaders of the House and Senate Intelligence Committees setting forth the administration’s defense of the program. Although the program’s secrecy prevents us from being privy to all of its details, the Justice Department’s defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.

The basic legal question here is not new. In 1978, after an extensive investigation of the privacy violations associated with foreign intelligence surveillance programs, Congress and the President enacted the Foreign Intelligence Surveillance Act (FISA). Pub. L. 95-511, 92 Stat. 1783. FISA comprehensively regulates electronic surveillance within the United States, striking a careful balance between protecting civil liberties and preserving the “vitally important government purpose” of obtaining valuable intelligence in order to safeguard national security. S. Rep. No. 95-604, pt. 1, at 9 (1977).

With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court. The statute specifically allows for warrantless wartime domestic electronic surveillance—but only for the first fifteen days of a war. 50 U.S.C. § 1811. It makes criminal any electronic surveillance not authorized by statute, id. § 1809; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the “exclusive means by which electronic surveillance … may be conducted,” 18 U.S.C. § 2511(2)(f) (emphasis added). [Footnote: More detail about the operation of FISA can be found in Congressional Research Service, “Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information” (Jan. 5, 2006). This letter was drafted prior to release of the CRS Report, which corroborates the conclusions drawn here.]

The Department of Justice concedes that the NSA program was not authorized by any of the above provisions. It maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.

The DOJ also invokes the President’s inherent constitutional authority as Commander in Chief to collect “signals intelligence” targeted at the enemy, and maintains that construing FISA to prohibit the President’s actions would raise constitutional questions. But even conceding that the President in his role as Commander in Chief may generally collect signals intelligence on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, and not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim.

Moreover, to construe the AUMF as the DOJ suggests would itself raise serious constitutional questions under the Fourth Amendment. The Supreme Court has never upheld warrantless wiretapping within the United States. Accordingly, the principle that statutes should be construed to avoid serious constitutional questions provides an additional reason for concluding that the AUMF does not authorize the President’s actions here.

The letter is signed by:

Curtis A. Bradley
Richard and Marcy Horvitz Professor of Law, Duke University
Former Counselor on International Law in the State Department Legal Adviser's Office, 2004

David Cole
Professor of Law, Georgetown University Law Center

Walter Dellinger
Douglas Blount Maggs Professor of Law, Duke University
Former Assistant Attorney General, Office of Legal Counsel,1993-1996
Former Acting Solicitor General of the United States, 1996-97

Ronald Dworkin
Frank Henry Sommer Professor, New York University Law School

Richard Epstein
James Parker Hall Distinguished Service Professor, University of Chicago Law School
Peter and Kirsten Bedford Senior Fellow, Hoover Institution

Harold Hongju Koh
Dean and Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School
Former Assistant Secretary of State for Democracy, Human Rights and Labor 1998-2001
Former Attorney-Adviser, Office of Legal Counsel, DOJ, 1983-85

Philip B. Heymann
James Barr Ames Professor, Harvard Law School
Former Deputy Attorney General, 1993-94

Martin S. Lederman
Visiting Professor, Georgetown University Law Center
Former Attorney Advisor, Department of Justice Office of Legal Counsel, 1994-2002

Beth Nolan
Former Counsel to the President, 1999-2001; Deputy Assistant Attorney General, Office of Legal Counsel, 1996-1999; Associate Counsel to the President, 1993-1995; Attorney Advisor, Office of Legal Counsel, 1981-1985

William S. Sessions
Former Director, FBI
Former Chief United States District Judge, Western District of Texas

Geoffrey R. Stone
Harry Kalven, Jr. Distinguished Service Professor of Law, University of Chicago
Former Dean of the University of Chicago Law School and Provost of the University of Chicago

Kathleen M. Sullivan
Stanley Morrison Professor, Stanford Law School
Former Dean, Stanford Law School

Laurence H. Tribe
Carl M. Loeb University Professor and Professor of Constitutional Law
Harvard Law School

William W. Van Alstyne
Lee Professor, William and Mary Law School
Former Attorney, Department of Justice, 1958

(Affiliations are noted for identification purposes only.)

Faithful to the Rule of Law?

Mark Tushnet

I have no illusions that anyone will pursue the following line of questions for Judge Alito, but doing so might usefully educate the public about what a person means by "dedicated to the rule of law."

Q: Judge Alito, you've said that as a judge your one obligation is to the rule of law. I want to find out what you mean by that. Let's talk about a case you considered -- United States v. Rybar. You dissented in that case. Do you think that your colleagues did not follow their obligation to the rule of law? [If the answer is, "No," -- unlikely, I would think -- the next question is, "Does that mean that anyone who disagrees with you about what the right outcome in a case is, is unfaithful to the obligation to the rule of law? That doesn't sound at all modest to me."]

A: Yes, we simply disagreed about what the rule of law required in that case.

Q: So, judges who are equally faithful to their obligation to the rule of law might disagree about what that requires them to do in a specific case. Then, when there is that kind of disagreement, on what basis do you actually decide the case? Citing the rule of law isn't enough, because you've just told us that you and your colleagues both were faithful to the rule of law. So, what else is there?

An honest answer, not that it would be forthcoming, would refer to the judge's overall vision of what the Constitution is about -- at which point it would seem appropriate to follow up by asking Judge Alito to describe that vision in a way that would explain why he was right in Rybar and his colleagues were wrong.

The Basic Case Against Alito

Robert Gordon

I have nothing very novel or surprising to say about the Alito nomination. But on the eve of his hearings it may be useful to summarize the essential case against him.

When Samuel Alito applied for a political job in the Justice Department in 1985, he wrote that he had been inspired to go into law by disagreement with the "activist" decisions of the Supreme Court under Earl Warren and other liberal policies. He mentioned particularly decisions in the areas of "criminal procedure, the Establishment Clause, and reapportionment." He said he believes strongly in "limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values." He added: "I am particularly proud of my contributions in recent cases [in the Solicitor General's office under Reagan] in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect the right to an abortion." He advertised his membership in a group of Princeton alumni who objected to opening up Princeton to women and minorities.

Now Alito is saying that the job memo doesn't tell us anything about how he would act as a judge because he wrote it as an "advocate" --- an advocate for himself, apparently -- applying for a political job in a conservative administration. He says his briefs and arguments and legal opinions for the Justice Department are also irrelevant because he was just acting as an advocate for the executive branch. He says that even his deeply held personal views on abortion and civil rights are irrelevant because he will be acting as a judge, not a person. (He also says he can't remember belonging to the Princeton alumni group, which I find rather hard to believe, since he was proud enough of it to put it on his job application.)

It's disturbing in itself that Alito, like John Roberts before him, will not take responsibility for or own up to his own beliefs. He's always claiming, "That was somebody else back then" - but without saying how or whether he has changed, except that he is now a judge. The argument that he was just saying whatever it was convenient for him to say in order to get a job doesn't sound too good coming from somebody who is now trying to get another job. There is something really slippery, or at least less than forthright, about his approach to his own record of actions and opinions.

Anyway, nobody can seriously suppose that Alito's beliefs will have no effect on his decisions, because they already have. His manifesto of 1985 is a pretty reliable road map not only to his work for the Reagan Justice Department, but to his decisions as an appellate court judge.

Backers of Bush's judicial nominees like to argue that, having won the election, Bush is entitled to put conservatives on the bench; but that, not to worry, his nominees will decide cases fairly and impartially. But is Alito likely to be the kind of judge who so completely subdues his convictions to his role that nobody looking at his record - as John Roberts claimed was true of his old boss, Henry Friendly - could tell if he were liberal or conservative? Or the kind of "conservative" judge in the mold of Frankfurter or the younger Harlan, who treads cautiously, defers to legislatures, sticks close to precedents, and construes statutes narrowly to avoid Constitutional questions? Or a judge like Powell or O'Connor, who approaches every case as unique and different, and decides on nuances of particular fact? Or even a judge whose views may generally accord with his party's, and who tilts towards the results his political sponsors prefer in close cases, but who does not actively seek to stretch or bend the law to pursue an ideological agenda? If Alito were any of these, I doubt there would be much opposition to him. I also doubt whether Bush would have wanted to appoint him.

By all indications Alito is none of these. He is not "conservative" in any plausible sense of the word except in style. Unlike Scalia, with whom he is often compared, he is not given to announcing flamboyant declarations of principle or sweeping legislative-like rules, or lobbing rhetorical stink-bombs at his fellow judges. By all accounts he is a low-key, pleasant man who respects disagreement and does not insult his colleagues on the bench. He is a cautious craftsman who takes small discrete steps towards his objectives rather than daring leaps. Where the law is hard and clear, he does not defy it or try to amend it judicially - though of course as a Supreme Court justice he will have scope to modify even well-settled law.

But wherever there is running room - opened up by gaps in application, conflicts in precedents, ambiguities in statutes - Alito is an activist who works steadily to push the law well beyond conventional boundaries of precedent. There is nothing "restrained" about his opinions proposing to strike down one federal law banning machine guns for exceeding Congress's power under the Commerce Clause (U.S. v. Rybar, 1996); to strike down another mandating employers to grant medical leave to parents of newborn children for exceeding Congress's power under the Fourteenth Amendment (Chittister, 2000); and to construe regulatory and civil rights laws so restrictively as to frustrate their purposes. He is for "limited government" and "federalism" when those principles point to less regulation of business and religious expression; but for authoritarian government when it acts in the causes of protecting national security or law enforcement and regulating morals. He is in short a judge with an agenda, and the agenda is not "conservative" but right-wing-Republican.

Now of course the liberal lions of the Warren Court - Warren, Brennan, Black, Douglas, Goldberg, Fortas, Marshall -- were judges with an agenda too. Their agenda was to push the polity toward treating subordinated, excluded and marginalized people with dignity and as civic equals. In this cause they construed the Constitution as a charter of equal rights and due process protections for the vulnerable; which limited the state's freedom to abuse and discriminate against those subject to its authority, but licensed a large governmental role in regulating the economy, expanding social security and health care, and promoting civil rights. Their agenda, and that of the liberal Congresses of the 1960s and 70s that wrote the legislation to make it effective, is of course what provoked the revolt of the conservatives and inspired the young Samuel Alito to join it. Alito and his comrades went into law to dismantle the achievements of the New Deal, Warren Court and Great Society, the social policies and civil rights protections and both the restrictions on and expansion of government authority of the liberal state. Some of us may regard this as a rather pinched and negative set of ideals, but to them it was a noble crusade.

So now they are in power, why shouldn't it be their turn? Why - as exasperated conservatives like Bruce Fein keep asking -- do their nominees have to conceal their activism, pretend that they are "mainstream" judges, really hardly distinguishable from liberals? Why does Bush pick stealth candidates like Roberts and Alito, rather than open and forthright radicals like Michael Luttig of the 4th Circuit or Edith Jones of the 5th Circuit or Janice Rogers Brown of the D.C. Circuit? The obvious reason is that large parts of the conservative agenda are quite unpopular, and candidates who openly avowed it would risk being voted down. Polls say that around 70 per cent of the public does not want Roe v. Wade, the decision conferring a constitutional right to abortion, overruled. So a pro-life nominee has to send signals to backers on the cultural right that he is a reliable vote on the abortion issue while at the same time reassuring liberal pro-choice Senators that he has not made up his mind. And the backers who have picked him because they think he's a vote for their side on the abortion issue have to pretend along with him that they think he has an open mind, even though they would never have pushed for and supported his nomination if they actually believed he had an open mind. (Harriet Miers really did seem to have an open mind on issues like gay rights, and look where that got her!) Alito has made this straddle very difficult by previous statements that he thought the Constitution did not protect the right to an abortion; by recommending litigation strategies in the Justice Department for getting Roe dismantled stage-by-stage and ultimately overruled; and finally, by writing a dissent as a judge on the 3d Circuit in an abortion case that would have allowed a state to restrict abortion rights by requiring a woman to notify her husband first - an issue that, on appeal, the Supreme Court decided the other way, 6 to 3.

In short, the Bush people's strategy with judicial nominees is the same as their strategy with the other legacies of the liberal state. As the fiasco of his proposals to revise Social Security made clear, Bush cannot get the legislative votes to repeal the New Deal and Great Society social safety nets, or legislative protections of labor, work safety and the environment and regulation of corporate frauds and torts. As protests mount over torture, indefinite detentions, spying without warrants, and the Patriot Act, he cannot count on Congress to ratify his claims of unlimited executive power in wartime. But he can appoint people in the executive and judicial branches who will work toward these aims covertly, gradually, and under the radar, while feigning otherwise.

In two broad areas especially, Alito promises to be a dangerous servant of the agenda.

Executive Power

1. The first and most important is executive power. As Dahlia Lithwick and Sandy Levinson have astutely pointed out, there's reason to think that Alito's views on executive power are the main reasons Bush wants him on the Court. Alito has not decided any cases squarely on point. But everything in his background and record suggests he is likely to be extremely deferential to executive power and reluctant to assert a strong judicial role in checking it.

In the Justice Department, he was a consistent supporter of executive power. In one (by now well-known) opinion he argued that the Attorney General should be immune from civil suits for authorizing warrantless domestic wiretaps (though with characteristic caution he advised against litigating the issue to the Supreme Court). He proposed that the President regularly attach "signing statements" to the bills he signs suggesting how he thinks legislation should be construed. Bush most recently used a signing statement to indicate that he construes the McCain law prohibiting torture not to limit his discretion to ignore it.

Almost every time law enforcement clashed with individual rights to due process, Alito supported law enforcement. He gave an opinion that there was no constitutional issue raised when a police officer shot and killed a 15 year old boy who ran away from the police after having stolen only $10: Alito said, the officer didn't know that, and it might have been a more serious felony. (The Supreme Court disagreed, in a 6-3 opinion by Justice White, who said, "It is not better that all felony suspects die than that they escape….A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead.") He consistently pressed for interpreting law enforcement authority broadly, finding loopholes and wiggle room in statutes and court cases that construed it narrowly. He wrote another opinion approving the FBI's plan to compile fingerprint information of refugees living in Canada, on the ground that illegal aliens and foreigners living outside their countries are not entitled to any of the constitutional rights of Americans - notwithstanding the fact that the Constitution's due process clause protects "persons", not "citizens."

As a U.S. Attorney in 1989, Alito expressed strong approval for the theory of the "unitary executive" - the view that the President is the sole boss of the executive branch, and that attempts to make him share power with other branches such as Congress or the courts violate the "separation of powers." This doctrine would - as its strong proponents in the Federalist Society admit - make all the so-called "independent" agencies such as the FCC and the SEC and the Federal reserve unconstitutional, because the statutes creating them limit the President's authority to remove their heads. The theory similarly supports the incredible claims that Bush's lawyers are now making, that when the President is carrying out a specifically executive function, such as that of commander in chief, no other branch may limit his authority. Congress has of course never accepted this claim, and the Supreme Court hasn't either, despite a few cases partially supporting it. The accepted, conventional - and from a historical point of view manifestly correct - doctrine is that in even in national security and foreign-policy affairs, the Constitution contemplates a system of shared, overlapping power and mutually checking powers.

Well that was the Justice Department, where arguably it was Alito's job to uphold and expand executive authority. But as a judge he is not noticeably any different. With a few exceptions, he virtually always supports law enforcement - police, prison authorities, prosecutors, immigration authorities. Even when they violate their own rules, as when the cops strip-search persons not described in their warrant requests, he says the violations are technical, minor, no big deal. (See Doe v. Groody, 2004). Other federal judges have been very critical of the Board of Immigration Appeals for its harsh, sloppy, negligent dismissal of even deserving claims of asylum; but Alito, even when he thinks immigrants have strong claims on the merits, routinely sustains the Board's decisions. Alito dissented when the majority on his court reversed the conviction of a black man because the prosecutors in that county used peremptory challenges to keep blacks off the jury - which is illegal, if done to exclude a particular race or ethnic group. The majority noted that in a county that was 18% black, blacks were constantly being struck from juries. Alito said, that could be just a coincidence - you wouldn't infer some sinister design if a jury pool was mostly left-handed. Quite right - but that's because there's no history of discrimination against left-handers, whereas the practice of using peremptory challenges and other devices to keep blacks off juries is older than Jim Crow and a continuing problem. (Riley v. Taylor, 2001.)

This pattern is especially alarming because if he gets on the Supreme Court, Alito will be taking part in momentous decisions regarding the scope of executive authority in national security matters - cases like those involving "enemy combatants" and detainees and surveillance in what's called the war against terror. The executive branch under Bush, as under Nixon, has claimed an extraordinary authority for the President in wartime - that on his own authority, he can have picked up off the street and detained indefinitely, with no access to a lawyer or the courts or the writ of habeas corpus, anyone he suspects may be aiding terrorists, however indirectly, whether citizen or alien; that he may subject anyone he (or a shift supervisor at the National Security Agency) thinks may have some connection to a foreign threat to surveillance without a court order; and that in his capacity of commander-in-chief he may not be restrained by domestic law, Congressional action, prior court precedents, or international law in his conduct of the "war on terror", which is likely to last forever. He claims emergency powers for a perpetual emergency. In short the doctrine is that the president is a law unto himself, or rather operates in a law-free zone, and is the sole judge of his own jurisdiction and the actions taken within it. This doctrine is the old doctrine of royal absolutism, which was developed by Nazi jurists like Carl Schmitt into a doctrine of executive emergency powers - the doctrine that the executive protecting the nation's security is outside the law. The Supreme Court as it was last year, with Rehnquist and O'Connor still on it, had a majority that clearly disapproved of this doctrine. Even Justice Scalia believes that the President may not detain citizens indefinitely without charging them unless Congress has acted to suspend habeas corpus. Would a Court with Roberts and Alito taking their places do the same?

The Senators have got to ask Alito what he thinks the limits of this doctrine of executive emergency powers are, if any; and what those limits are. He cannot be allowed to evade the question by saying that the issues must be decided case by case. The claim that Bush and his lawyers like John Yoo make for executive power is a categorical one that the President may disregard even specific statutes limiting or regulating his authority. They have invited a general debate on the issue, and the Alito hearings are an ideally appropriate vehicle to conduct that debate.

2. Protections of the Vulnerable

I've mentioned that the legal agenda of the conservative movement, articulated by young conservative lawyers like Alito in the Reagan Administration, was to roll back the Rights Revolution and New Social Regulation of the 1960s and 70s. The justices they appointed made some headway on this agenda, but have been thwarted by their more liberal colleagues and the Congress. Alito, it seems clear, is still pursuing this agenda.

The clearest example is civil rights enforcement. Alito is regularly hostile to claims of discrimination on the basis of race, sex, age or disability. Indeed, as mentioned earlier, for all his respect for legislatures, he's even hostile to Congress when it tries to do something about discrimination. Congress passed the Family Medical Leave Act in 1993, requiring employers to rehire employees who take leave to have children. Congress found that without such policies, many employers would not take back many employees, and that this was a civil rights issue because the burden of child care falls disproportionately on women, who are therefore most likely to lose their jobs and have their employment opportunities truncated. Alito voted to invalidate parts of the Family Medical Leave Act (abrogating sovereign immunity for states that violated the law) on the ground that Congress had not put forward enough evidence that employer leave policies intentionally disfavored women. This is a very narrow view of what it means to discriminate. How much evidence would you need that the burden of firing workers who take leave to take care of children falls disproportionately on women? The Supreme Court decided this case the other way, with Rehnquist writing the opinion, reasoning that Congress had plenty of reason to think that Congress could reasonably have found that "mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers' stereotypical views about women's commitment to work and their value as employees." (Nevada Dept. of Human Resources v. Hibbs, 2003).

Like most of the judges Bush has appointed to the federal courts, Alito is generally unfriendly to employees who sue employers for discrimination. I should say there are exceptions - he sometimes rules in favor of plaintiffs in such cases - but the general pattern is one of hostility. Again, Alito doesn't make sweeping pronouncements - that's not his style. He simply increases the burden of proof on employees to prove discrimination and makes it relatively easy for employers to prove they did not discriminate. Generally he favors having courts dismiss such complaints without allowing them to get to juries.

One example will illustrate his technique. Barbara Sheridan worked for the Hotel DuPont. She had been regularly promoted. When she complained of sexual harassment, she was demoted to a non-supervisory position. The precedents in this area of law hold that if an employee claims discrimination, the employer has to come forward with an innocent explanation for firing or not promoting or demoting an employee. In this case the hotel said her performance was deficient. Sheridan showed these explanations were false. The cases then say that if the employer's reasons for its actions seem to be pretexts, then the plaintiff gets to a jury to decide if there is discrimination. Judge Alito was the lone dissenter, in a 10-1 ruling for the plaintiff. Alito wanted a rule that once the employer produces a legitimate reason, whether based on a pretext or not, the employee would be back at Square 1, and have to produce further specific proof of discrimination. (Sheridan v. DuPont, 1996.) This sounds like a technical quarrel, but it's not. Employees can rarely prove intentional discrimination directly, because companies don't keep records with smoking guns in them. Courts have to infer discrimination - and giving fake evidence about why someone is fired, under traditional law, is enough to get the case past dismissal.

Nathan Newman has documented Alito's consistent hostility to workers' rights. In 35 labor and employment cases on which Alito has written an opinion, he has favored the employee or union side in only five. He regularly construes statutes to narrow the scope of protections for labor; and in reviewing facts defers to employers' discretion. In Delli Santi v. CAN Insurance Cos. (1996), for example, Alito in dissent agreed that the employer had fired someone with discriminatory intent, then covered the firing by saying the employee had violated company expense report policy. Alito would still have held the firing legitimate because it furthered an actual employment policy.

These cases illustrate a more general pattern in Alito's thinking - which is that people in authority usually have good reasons for what they do, and that the legal system should cut them a lot of slack and give them a lot of discretion. Employers, prison authorities, immigration judges, the police, don't have to give specific reasons or put forward evidence justifying what they do. Anyone who challenges such authorities, however, has to follow strict procedural requirements and satisfy high burdens of proof. - even if he is a pro se litigant or defendant facing the death penalty who has been saddled with incompetent counsel.

The exceptions are as revealing as the patterns. Alito, as we've seen, will not defer even to the Congress when it gives what he thinks are inadequate reasons for federal regulation that carries out liberal social policies. In reviewing decisions of the National Labor Relations Board, Alito is rarely deferential, though he defers to virtually every other government agency, even horridly malign and incompetent agencies like the Board of Immigration Appeals. And if the people challenging authority are claiming religious discrimination or interference with religious liberty, Alito proves very sympathetic to their claims and inclined to help them overcome procedural obstacles.

One can quite confidently predict that where governments and businesses confront individuals, on the whole individuals will lose Alito's vote except where they are claiming rights to free speech or religious liberty; and that Alito will be friendly to state authority when it tries to regulate morals or social order, but unfriendly when it tries to regulate business.


Alito tends to looks reasonable and moderate because of his style. But his style conceals a strategy. In his Justice Department days, Alito was up front about this. He often advised his superiors not to seek direct overruling of the cases they disliked, such as Roe v. Wade, but to pursue an incremental strategy -- to whittle away, case by case, at the surviving legal legacies of the liberal period. In the current political stalemate, where neither side can muster the votes to significantly amend legislation, whoever controls executive agencies and the courts can accomplish repeal of liberal policies, even those that command widespread public support, by stealth. At present the stakes in this battle are about as high as they can be, because the courts are assigned an essential role in preserving the Constitutional balance of power and the rule of law, against an executive that claims for itself dictatorial discretion. In particular, if the courts will not protect the liberties of unpopular subjects, such as those accused of aiding terrorists, no one will.

John Roberts played for Democratic votes in the Senate simply by asserting his independence from factions and patrons and declaring, "I am not an ideologue". This seemed to work in his case, and now only time will tell if it is true. Clarence Thomas told the Senate the same thing, that he had an open mind and no agenda. In his case it turned out not to be true. In Alito's case, unfortunately, almost nothing indicates that he has the independence to deviate from the causes that impelled him into law and a lifetime of federal service as a soldier in the conservative movement. If he is unwilling firmly and forthrightly to declare his independence from the ideologies and executive authorities he has served his entire career, the Democrats should try to keep him off the Court by filibuster.

Sunday, January 08, 2006


Sandy Levinson

In the 51st Federalist Paper, James Madison famously wrote, “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” The mechanism of American “separation of powers” is often said to derive from Madison’s insight. That is, it is not only that Congress, the Executive, and the Judiciary have quite different formal powers; it is also ostensibly true that members of each branch are psychologically disposed to work zealously to preserve the institutional prerogatives of the branch with which they are connected and will therefore be vigilant in trying to prevent incursions from the other branches.

In a brilliant article about two years ago, Darryl Levinson (no relation), now at the Harvard Law School, demonstrated the fallacies in Madison’s assertion. The reason why Madison is profoundly wrong, Levinson suggested, can be summarized in two words: political parties. Madison, of course, was no friend, at least in 1787, of the idea of a political party, which he viewed as a “faction,” defined in Federalist #10 as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

Many writers well before Levinson noted that Madison’s vision (or fantasy) of a country without political parties, organized “factions,” did not survive for even a decade beyond the ratification of the Constitution in 1788. He himself became a major leader of the Democratic-Republican Party organized by Thomas Jefferson and, concomitantly, an opponent of the Federalist Party headed by Alexander Hamilton and John Adams. What was less emphasized is Levinson’s point: The organization of political parties, one of whose main goals is the election of presidents who can implement the party’s agenda, negates any serious notion that the “interest” of the member of Congress is necessarily linked with the “constitutional rights of the place” (Congress) rather than the flourishing of the political party. They view their interests as lying with the achievement of the party’s agenda, which is set, when the party controls the Presidency, by the White House. (There is also the key reality that most members of Congress wish to be re-elected, which may, depending on events of the day, lead them to stronger or weaker identification with the interest of a president of their own party, but this is analytically distinguishable from suddenly developing a great commitment to preserving the prerogatives of Congress. It most likely leads to greater pandering to their constituents.)

We are about to see an important test of Levinson’s hypothesis in the confirmation hearings—and, more to the point, the voting—on Samuel Alito’s nomination to be a member of the United States Supreme Court. In two earlier postings, I have suggested that Alito’s nomination is part of a systematic effort to reinforce the aggrandizement of the institutional powers of the presidency by, in this instance, placing on the Supreme Court someone who is predicted to be a solid vote in favor of presidential prerogative. N.Y.U. Law Professor Noah Feldman has an illuminating article in today’s New York Times Magazine, “Who Can Check the President?” He, too, sees the Bush Administration as devoted to presidential power, and he rightly believes that this grab for power must be checked. He also rightly believes that it is close to futile to look to the courts to stem such aggrandizement, even assuming that the judiciary were inclined to do so. His answer to his own question, therefore, is the Congress. But this assumes, of course, that Madison was in fact correct in suggesting that members of Congress would rebel against a president who threatened the “constitutional rights” of their own “place.”

The modern Republican Party has been notable for bending to the President’s will, save when, as with the ill-fated nomination of Harriet Meirs, social conservatives mobilized to defeat someone viewed, however implausibly, as too “soft on abortion.” Whatever explained that rebellion, it certainly was not linked to a perception that Meirs’ nomination threatened the institutional prerogatives of Congress. But the Alito nomination is different. Since Meirs’s nomination, it has become crystal clear that presidential power is the most important constitutional issue at the present time, and into the foreseeable future. And it is even clearer that Alito, by background and inclination, is a firm believer in presidential power. A long profile in today’s Washington Post notes that a key value from his youth until the present is what many of us would describe as an exaggerated respect for those in authority.

If Madison were correct, then one would predict that Alito’s nomination stood almost no chance. There is no reason for any member of what might be termed a “Madisonian” Congress to vote for Alito. Instead, senators would be looking for someone who had demonstrated great respect for the Congress and seemed likely to take Congress’s side in any potential struggles with the White House. This is, of course, not happening. Instead, Republican members of the Congress, whether “self-hating” (in the way that Jewish critics of Israel are often accused of being “self-hating Jews”) or simply indifferent to reality, seem more than happy to support Alito.

Most observers seem to believe, entering the hearings, that he will be confirmed. The only question that most articles discuss is whether the Democrats will attempt to filibuster the nomination, which would, of course, require the vigorous opposition of at least 41 Democrats. My own view is that they most certainly should try to block this nomination, but that is neither here nor there. The real question is whether the ultimate vote, whether it is to break a filibuster or to vote on the nomination itself, will deviate in any significant sense from straight party membership. Chief Justice Roberts did, of course, receive the votes of exactly half of the Democratic Senators; no Republican voted against him. So the question this time around is whether any Republican, stirred by recent White House assertions of unfettered power with regard to torture or to domestic spying, will break ranks. Or will they all be proud lemmings, willing to support “their President” in spite of his demonstrated contempt for Congress even as a co-equal branch of government? If, as I fear, the answer is the latter, then Madison will be proved, as clearly as is possible, utterly wrong in his speculations about political psychology, and we will all have to contemplate ever harder what remains of our purported commitment to separation of powers and checks and balances.