Balkinization: Thoughts on Rosenberg, THE HOLLOW HOPE

Comments:

Lol. Professor Graber wrote, "The central argument is that litigation has been a poor and sometimes perverse vehicle for securing social change..."

A.) Conservatives have known that for a long time, B.) Its one of the big reasons why we say the political process should be the driving form for social change and NOT the courts.

It took a "seminal" work to tell you that?

But, by all means, yes please try engaging the political process more fully to enact your social agendas. It's what we have been saying the whole time!!!

# posted by

humblelawstudent : 6:47 PM

A.) Conservatives have known that for a long time, B.) Its one of the big reasons why we say the political process should be the driving form for social change and NOT the courts.

It took a "seminal" work to tell you that?

But, by all means, yes please try engaging the political process more fully to enact your social agendas. It's what we have been saying the whole time!!!

As history, this is arrant nonsense. The principal users of the judicial system over the past 225 years have been conservatives. It was they who successfully blocked democratic regulation of corporations under Marshall, it was they who nationalized slavery under Taney, it was they who developed the doctrine of substantive due process to block the democratic process after the Civil War.

In truth, conservatives have been criticizing courts on this basis only for about 35 years. Just long enough, I predict, for them to expose their hypocrisy as they use the now-conservative judicial system to block the coming Democratic majority.

# posted by

Mark Field : 7:43 PM

Mark,

You aren't really trying to compare today's conservatives to those from 150 years ago, are you?

Heck, why not go back to Burke. Actually, why stop there? Maybe we can find conservatives from ancient Greece...

Mark, your comparison simply doesn't fit. The label may be the same, but it should be obvious to ANYONE that the meaning has changed--at least on some level.

There are so many other problems with your argument, but I have finals to study for.

I really don't think you actually believe your post Mark.

# posted by

humblelawstudent : 8:14 PM

I should note that my comments at the Rosenberg panel were devoted to discussing the numerous contemporary conservative movements aimed at having courts declare laws unconstitutional. In this light, one should remember that Justices Scala and Thomas are by far and away the leading judicial activists on federal law in American history. Now one might argue that they are right on the merits and liberals are wrong, but they are not particularly deference to Congress

# posted by

Mark Graber : 8:33 PM

Professor Graber,

I don't know if you are indirectly responding to me, but I'll respond just in case.

There are two different questions here. One, is whether litigation or legislation is the more proper and/or more efficient means for enacting a social agenda. The other, related but distinct, question is the idea of deferring to legislative enactments.

The fact that conservative justices are more prone to declare laws unconstitutional does not necessarily mean they are also using the litigation process (through their votes) to enact their own social agenda. An inquiry into what they are voting for or against is needed to make that jump. For example, a distinction should be drawn between decisions which say "Congress can't do X" which the conservatives seem quite fond of, and decisions like, "Congress or the states MUST do Y."

On a side note, I wouldn't be surprised if many of Thomas' "activism" votes can be attributed to his narrow reading of the Commerce Clause.

# posted by

humblelawstudent : 9:16 PM

Of course, my whole argument is negated if one argues that all language is indeterminate, and that any particular decision is merely and only a reflection of a judge's own policy preferences. I'd just hope we are beyond such nonsense.

# posted by

humblelawstudent : 9:17 PM

You aren't really trying to compare today's conservatives to those from 150 years ago, are you?

You're the one who claimed that "conservatives have known that for a long time". Unless we rather charitably interpret your post to mean "conservatives have known this since Alexander Bickel" (and that's a VERY charitable interpretation for you); or, perhaps "conservatives as I arbitrarily define the term", your post makes no actual point.

Also, what Prof. Graber said.

The fact that conservative justices are more prone to declare laws unconstitutional does not necessarily mean they are also using the litigation process (through their votes) to enact their own social agenda. An inquiry into what they are voting for or against is needed to make that jump. For example, a distinction should be drawn between decisions which say "Congress can't do X" which the conservatives seem quite fond of, and decisions like, "Congress or the states MUST do Y."

Special pleading is not a very persuasive argument. Virtually every court decision conservatives have criticized for the past 50 years -- from Brown to Roe and onward -- is one which said "states (or the feds) cannot do X".

# posted by

Mark Field : 9:21 PM

THE HOLLOW HOPE and related studies tend to limit analysis to the influence of judicial decisions and litigation campaigns on the policy actually being litigated. So whether Roe was a success depends on the extent to which Roe directly or indirectly enabled more women to procure safe, legal abortions.

Abortion safety and legal abortions require two different measurements.

The safety of women who underwent abortions was not a substantial problem when the Roe court ruled. According to the Centers for Disease Control, the number of women who died in 1972 from illegal abortion was thirty-nine (39). By this measure, Roe had little effect.

However, when the number of children legally killed in abortions is the measure, Roe was a tremendous "success." The number of abortions increased by up to ten fold after Roe.

This, however, may be too narrow an emphasis and MAY (emphasis on "may") miss another problem with litigation as a liberal political strategy...Litigation, by offering the possibility of total victory, may present the illusion that one can avoid the necessary compromises of politics.

Setting aside for the moment that a political movement attempting to avoid the democratic process by legislating through the courts is an assault on our constitutional system, is it truly an illusion that one can avoid the necessary compromises of politics by legislating through the courts?

In nearly a century of democratic skirmishing, abortion was still largely illegal prior to Roes. However, after Roe, abortions exploded ten fold.

Likewise, homosexual "marriage" has no substantial political support and was only installed by judicial fiat.

There is a reason why the the most vicious political fights today are usually over the nomination of judges. Today, the left simply does not have the votes in this center right country to democratically enact much of its agenda. Most of the lefts agenda is now advanced by the non-democratic courts and bureaucracy.

In contrast, when the country was center left back in the 50s and 60s and the left was able to pass its agenda democratically, judicial nominations were not nearly as contentious.

# posted by

Bart DePalma : 9:27 PM

Mark Field,

You are being unfair.

First, I am referring to the modern conservative movement. Maybe I should have made that more clear. But, I'd assume you would think more critically than just to say, "Hmm, so and so said they were conservative 150 years and they acted differently, so this must disprove his point." Maybe I should have said the modern Conservative movement, or the post-Goldwater conservative movement.

Second, Mark, the context of this post concerned the enactment of the liberal social agenda. The biggest pushes and successes for their social agenda through litigation have come in the last 40 or so years. It is to that that I understood the context of the post. So, my response was in the context of that time frame. I assumed it was clear, but evidently not.

# posted by

humblelawstudent : 9:33 PM

Bart,

Before the inevitable assault, some enactments of gay civil unions or same sex marriage have come through the legislative process. I just thought I'd mention that before you are inevitably attacked on that point.

# posted by

humblelawstudent : 9:36 PM

Mark Field said...

As history, this is arrant nonsense. The principal users of the judicial system over the past 225 years have been conservatives. It was they who successfully blocked democratic regulation of corporations under Marshall, it was they who nationalized slavery under Taney, it was they who developed the doctrine of substantive due process to block the democratic process after the Civil War.

Please.

Limiting government regulation of markets was a classical liberal concept.

Slavery was a moral issue, not an ideological one. The anti-slaverey movement (like the subsequent civil rights and anti abortion movements) was carried by the churches - which today's secular left would call conservatives.

# posted by

Bart DePalma : 9:42 PM

The biggest pushes and successes for their social agenda through litigation have come in the last 40 or so years. It is to that that I understood the context of the post.

Fine, we agree that the relevant time period is the past 40 years. Now we can try to decide what it means to "push a social agenda through litigation". To me, what liberals have done is broaden the scope of American society by extending to former outcasts the same constitutional privileges others have enjoyed for years. YMMV.

# posted by

Mark Field : 10:00 PM

Someone said...

Bart, Before the inevitable assault, some enactments of gay civil unions or same sex marriage have come through the legislative process. I just thought I'd mention that before you are inevitably attacked on that point.

I purposefully limited my point to homosexual "marriage."

The citizenry believes correctly that marriage is a cornerstone of our society and not simply a civil contractual arrangement created by the government. Thus, the objection of the citizenry against redefining marriage to include homosexual unions is far deeper and profound than the objection against extending varying civil contractual benefits to homosexual couples through "civil unions."

As a result, homosexual "marriage" has never been democratically enacted in this country. Rather, it has been installed by judicial fiat. In contrast, "civil unions" have been installed both by judicial fiat and by democratic legislation.

# posted by

Bart DePalma : 10:01 PM

Let me add that conservatives have been wildly inconsistent in making their "majoritarian" criticisms. For example, Kelo was a pro-majoritarian decision, yet conservatives denounced it. The same is true for cases like Wesberry v. Sanders and Employment Division v. Smith.

In addition, conservatives have criticized opinions as anti-majoritarian when the whole issue was whether the Constitution protects a minority against the impact of majority rule (e.g., Johnson v. Texas). Majoritarian criticism makes no sense in such cases.

Finally, conservatives are, as Prof. Graber noted, more than willing to overrule majority decisions in order to enact their own social agenda (Gonzales v. Raich).

# posted by

Mark Field : 11:05 PM

The whole "let the majority decide" claim suffers from incoherence in my view. There are three fundamental problems.

First, there's the problem that "majorities" in the US operate on two different levels, state and federal. Gonzales v. Raich is a perfect example of this. CA voters chose to allow medical marijuana. A federal majority has decided to regulate marijuana in ways which are inconsistent with what CA wanted to do. Whichever way the Court ruled, a critic might say that it was anti-majoritarian.

Second, we live in a system which (generally) runs by the principle of majority rule. Unless courts are merely to rubberstamp the actions of legislatures, they must on occasion rule against the majority. IOW, any judicial system, and any method of interpretation, will inevitably reach counter-majoritarian results. Again, how one feels about a specific case largely depends on which side of the issue one is on.

Finally, there's the fundamental point Marshall made in Marbury v. Madison that the very existence of a written constitution is itself an infringement on the principle of majority rule. If courts are to uphold the constitution, they perforce must restrict the majority.

# posted by

Mark Field : 11:25 AM

Mark,

In pointing out how often the courts have acted as guardians of entrenched economic interests it seems to me you are making an excellent argument against the use of litigation as an instruments of social change. It happened under the Warren Court, but that has been the exception and not the rule.

I do believe the courts have a proper role upholding the rights of unpopular minorities -- to the extent that means upholding what is expressly set forth in the Bill of Rights. But a right of abortion goes as far beyond what can be found in any common-sense reading of the Constitution as anything dreamed up by Marshall, Taney, or Guilded Age judges. And who knows what Scalia will dream up, given the chance.

There has to be some better way of deciding which anti-majoritarian decisions are legitimate that just the ones I like.

We haven't been getting much haiku here lately, but let me offer the following:

Judicial restraint --
An ideological
Non-aggression pact.

# posted by

Essayist-Laywer : 7:41 PM

In pointing out how often the courts have acted as guardians of entrenched economic interests it seems to me you are making an excellent argument against the use of litigation as an instruments of social change. It happened under the Warren Court, but that has been the exception and not the rule.

That's one possible conclusion, but it's not the only one. The cases I listed included a number in which the court served a valid majoritarian purpose in striking down certain laws. That, at least, constitutes a proper basis for judicial intervention.

As I indicated in my last post, judicial restraint isn't really an option. The only question is what type of intervention we'll have.

I do believe the courts have a proper role upholding the rights of unpopular minorities -- to the extent that means upholding what is expressly set forth in the Bill of Rights.

I believe I can safely say that everyone agrees with this. The devil is in the details: what is "expressly set forth in the Bill of Rights"? The problem is that phrases like due process and equal protection don't have defined meanings. There will inevitably be disagreement on what behavior is encompassed by them.

But a right of abortion goes as far beyond what can be found in any common-sense reading of the Constitution as anything dreamed up by Marshall, Taney, or Guilded Age judges.

I have less problem with that than I do with, say, the holding that corporations are "persons" under the 14th A. As I said in the other thread, if you assume the word "liberty" has a substantive meaning, inclusion of abortion within that meaning doesn't strike me as much of a stretch. It's no more so than the right to marry; to teach your children German; or to send your child to private school. I also have no problem treating abortion as an equal protection issue.

# posted by

Mark Field : 10:10 PM

"But a right of abortion goes as far beyond what can be found in any common-sense reading of the Constitution as anything dreamed up by Marshall, Taney, or Guilded Age judges."

I second MF in my apparent "lack of common sense" reading of the Constitution.

One must avoid sarcasm to wonder if "any" common sense reading of an amendment (14A) in place to give meaning to freedom/freedom from slavery involves control of a basic matter that slavery gave to slaveholders, namely control of one's sexuality, body and family life.

The "common sense" person, esp. before abortion laws from CT down in the 1820s, also thought such acts were basic liberties under the common law up to a certain point in the pregnancy, a major reason "some" justices in the late 19th Century understood "due process of law" etc.

We might debate the strength of Roe etc. But, this "no" common sense view imho is akin to those who make fun of Griswold because you know "penumbra" is a funny word.

# posted by

Joe : 11:53 PM

fAs I indicated in my last post, judicial restraint isn't really an option. The only question is what type of intervention we'll have.

You point out that when there is a conflict between a federal law and a state law, the courts cannot be "restrained," but must choose one majority over another. You also point out that the courts are not supposed to rubber stamp everything legislatures do, and that to rubber stamp an unconstitutional law is illegitimate.

But I still maintain that there are many things the Constitution does not address, and these can only be left to legislative discretion.

Presumably this would not be a controversial statement on a subject other than basic rights. For instance, in establishing the judicial branch, the Constitution says that federal judges shall be chosen by the President with the advice and consent of the Senate, shall serve for good behavior, shall receive pay that shall not be reduced during their lifetime, etc etc. It leaves to Congress the court structure beyond that. Our current system of trial appellate and Supreme Courts is traditional, but if Congress, say, set two layers of appeals between trials and the Supreme Court, or provided for some cases to skip the appellate courts altogether and go to the Supreme Court, that would be odd but not unconstitutional. If Congress made a law allowing Congress to cut the pay of any judge whose decision it did not like, that would be unconstitutional.

It is perfectly possible to apply the same principle to the Bill of Rights. The Fifth Amendment says no one may be deprived of liberty without due process of law. Even the narrowest reading (no one may be imprisoned without a fair trial) is sufficient to bar the internment of Japanese Americans during WWII. And I don't see how random drug tests or sobriety checkpoints can survive a ban on unreasonable searches and seizures -- they are searches, and they require no suspicion whatever.

But there are subjects the Constitution simply does not address. Hence I would say the Supreme Court made the right decision on physician-assisted suicide -- the Constitution is silent on the subject, so state laws forbidding it must be valid. (State laws permitting it are equally valid). The Constitution is equally silent on the regulation of corporations. And labor protective legislation. And abortion.

Perhaps it is true that when the Supreme Court upholds a distasteful statute on a subject not addressed in the Constitution, that is intervention as much striking down the statute. But it leaves a remedy in place. Lobby the legislature to repeal the statute.

# posted by

Essayist-Laywer : 12:51 AM

EL, the basic problem I have with your argument is that you depend too much on text and not enough on history. Let me give an example.

You say "The Fifth Amendment says no one may be deprived of liberty without due process of law. Even the narrowest reading (no one may be imprisoned without a fair trial) is sufficient to bar the internment of Japanese Americans during WWII."

First, your own "clear" understanding of the meaning of the 5th A was NOT shared by the President or the Court during WWII. Those who disagreed with you, including Roosevelt, Warren, and others, are not people whom we'd judge as irrational or unreasonable. That suggests to me that putatively "clear" meanings may seem so to you, but ain't necessarily so.

Second, your reference to the core meaning of the 5th A as "no imprisonment without a fair trial" would not have been true for some times and some persons. This is not a right which exists from on high, it's a right which people -- our ancestors -- had to fight for. They fought against others of our ancestors who insisted on the rectitude of their own attempts to deny those rights.

The conclusion from this is that the assertion of seemingly "new" rights contained within old phrases is nothing new; it's the way the system has always operated. Indeed, it's the way a common law system of jurisprudence works at all times.

The other problem with your approach is that it underplays the problem of majority tyranny. Rights and powers are always in tension; every grant of power to the state is, in essence, a restriction on the rights of individuals, and vice versa. We can't grant the necessary power without creating the risk of abuse.

I entirely agree that we want the democratic process to have a good deal of latitude. That's a form of freedom (self-government, as the Founders understood it). But if you let the democratic process define its own latitude, there may be no protection at all for fundamental rights, particularly for minorities (slavery, segregation, etc.).

Finally, your reference to assisted suicide as a subject on which the Constitution is silent misses the point of the argument. Nobody claims that the words "assisted suicide" appear in the Constitution. What they do claim is that the word "liberty" includes within it the right to have physician aid in dying. If you overspecify the "right" involved, it's easy to say the Constitution doesn't provide for it. This approach subverts the usage of general terms like "liberty", rendering them meaningless. But if the Constitution is to define the limits of majority rule at all -- and that's its fundamental purpose -- the words used, including "liberty", must have some meaning. It's all a dispute over exactly what that meaning is, just as I noted in my first point above.

# posted by

Mark Field : 11:53 AM

Mark,

That is a lot to think about. But there is an obvious problem with a concept of "substantive liberty" to be defined by the Supreme, the one you addressed in your very first post. Many past courts used "substantive liberty" to protect entrenched economic interests. Indeed, recognizing the court's counter-majoritarian function, they saw their proper role as protecting the "few" (meaning the elite) against the "many," conceived of as an undifferentiated mass of the non-elite who might threaten the elite through unchecked democracy.

So the question still remains, how do we know their concept of substantive liberty is wrong. Your answer, as far as I can tell, is that time and history will sort it all out. That gives no guidance for the here and now.

Another answer might be that the view of earlier Supreme Courts was wrong, that elites and entrenched economic interests are quite capable of protecting themselves and that the ones who really need protection from the tyranny of the majority are the weakest and most powerless members of society. Perhaps the Supreme Court has learned this and can be trusted in the future. But somehow I doubt it. Between Antonin Scalia protecting states from being sued and various liberterians urging the use of "takings" to prevent almost any economic regulation, the old concept of the Court as upholder of entrenched interests is back.

You say that guaranteed rights are not handed down from on high, but established by historical struggle. But that hardly supports the proposition that the Supreme Court should hand down rights from on high and everyone else should comply. In the last thread where we discussed this, you asked me how I knew "separate but equal" was not legitimate. I did not have a very good answer then. But this is a fair answer. Segregation lasted long enough to be clearly a form of oppression. Hitler showed us just how evil racism can be and raised an anti-racist consciousness that had not been present before. The NAACP took advantage of this shift to raise Brown. The Supreme Court decided against segregation, with much objection, but it took the Civil Rights movement, a long grassroots struggle, legislation, and a general change in public consciousness. The Supreme Court played a part, but only a part.

With abortion now we may have a similar shift. One side proclaims the right of a woman to control her body, and not to be treated as a mere life support system. The other claims the rights of the unborn as persons. Each sees itself as the true heirs of the Civil Rights movement. Once again, it's going to take more than a Supreme Court decision to resolve this conflict.

And, after all, if rights emerge as the result of prolonged struggle and shifting social consensus, then I would say that seeking to replace that with the Supreme Court determines and everyone else complies as an attempt to short-circuit the entire process.

# posted by

Essayist-Laywer : 2:50 PM

Let me start with where we agree:

1. "The Supreme Court played a part, but only a part."

2. "Once again, it's going to take more than a Supreme Court decision to resolve this conflict."

3. "I would say that seeking to replace that with the Supreme Court determines and everyone else complies as an attempt to short-circuit the entire process."

It is NOT my view that the Court should have sole responsibility for protecting rights. It IS my view that the Court can and should supplement the democratic process in doing so.

So the question still remains, how do we know their concept of substantive liberty is wrong. Your answer, as far as I can tell, is that time and history will sort it all out. That gives no guidance for the here and now.

That's part of my answer. I do believe that in the long run democratic systems will do what the majority considers (in Madison's words) it's "permanent and aggregate interests". In this sense, we all depend on each other for the protection of rights.

What the Court can do, especially in the short run, is (a) slow down the process, especially the rush to judgment which tends to occur in times of crisis; and (b) remind us all, through the use of reason and history, why we protect certain rights. This creates at least the potential for the ultimate majority decision to be both "considered" and "permanent".

Now we get to the harder problem of identifying the most important areas in which the Court should intervene. In my view, those consist principally of those which allow the operation of the democratic system itself. That is, Courts need to protect free speech, assure equal protection of the laws, protect the rights of voters, etc.

Without trying to detail all the other possible rights, I'm inclined to lean towards your side of restraint in enforcement. My principal qualification would be that the restraint comes not from text, but from history. By that I mean that courts should be free to consider a changing society as long as they can reasonably remain within the confines of the text (i.e., no nonsense like "original intent").

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دة تقدم لكل عملائها افضل خدمات التنظيف فى جدة حيث تنتشر فروعها فى كثير من مناطق المملكة حيث تقدم الدانة كلين كل انواع التنظيف (تنظيف البيوت –والشركات – والشاليهات –والمستشفيات –شركة تنظيف منازل بجدة – القصور – تنظيف الخزانات – والبيارات كنب – مجالس ) وغيرها
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شركة تنظيف بالبخار بالطائف الدانة كلين 0508554570 - 0508554217

تنظيف بالبخار بالطائف من اجود انواع التنظيف حيث انتشر فى الاونة الاخيرة التنظيف بالبخار وقد اثبت البخار فاعلية اكيدة فى التنظيف ولكن لعتقد الناس ان التظيف بالبخار له اضرار كثيرة اكبر من الفوائد ولكن سوف تخبركم الدانة شركة تنظيف بالبخار بالطائف عن فوائد البخار فى الفقرة القادمة وتقدم الدانة كلين التنظيف لجميع المفروشات بالبخار شركة تنظيف ستائر بالبخار بالطائف ,تنظيف سجاد بالبخار بالطائف , تنظيف مجالس بالبخار بالطائف

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# posted by

alfarida.net@gmail.com : 1:55 PM

شركة تنظيف خزانات بمكة الدانة كلين 0508554570 - 0508554217

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شركة تنظيف خزانات بالطائف الدانة كلين0508554570 - 0508554217

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# posted by

alfarida.net@gmail.com : 2:06 PM

شركة نقل عفش بجدة بيجات كلين 0563019997

يحتاج الانسان دائما للاستعانة بشركة نقل عقش موثوق فيها للقيام عنه بنقل اثاث ومتعلقات من مكان لاخر وقد يتطلب احيانا تخزين الاثاث والمتعلقات لفترة ما

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https://www.bejatclean.com/%D8%B4%D8%B1%D9%83%D8%A9-%D9%86%D9%82%D9%84-%D8%B9%D9%81%D8%B4-%D8%A8%D8%AC%D8%AF%D8%A9

# posted by

alfarida.net@gmail.com : 2:29 PM