Balkinization: Judicial Restraint in a System of Judicial Review

Judicial Restraint in a System of Judicial Review

I'll have more to say about living constitutionalism in a later posting this week, but in the mean time, I wanted to offer a few remarks about Eric Posner's call for judicial restraint last week. Eric makes three suggestions in his critique. Eric's first point is that judges should engage in more judicial restraint. Eric's second point is that this is not only his view: there is a growing consensus of other constitutional theorists forming in favor of judicial restraint. Eric's third point is that constitutional theorists should recognize that judges don't pay attention to constitutional theory and don't care what constitutional theorists think.

Am I the only one who sees a potential problem here?

I have always been puzzled about generalized calls for judicial restraint within a system of judicial review. I quite understand opposition to judicial review in general; not every constitutional system gives judges the authority to strike down legislation (although judicial authority to limit executive action in the name of constitutional values rests on a somewhat different footing, namely the need to ensure that the executive respects the rule of law.). In most discussions in the American context, however, arguments for judicial restraint occur against the background of general acceptance of the practice of judicial review. And in this context, arguing for judicial restraint only makes sense against the background of particular substantive views about the Constitution.

If you think that the Constitution prohibits X, then striking down X is not a violation of the principle of judicial restraint; it's enforcing the law. If you think that the Constitution does not prohibit X, then the call for judicial restraint also makes perfect sense because it's also an argument for enforcing the law properly. However, if you say that you think X violates the Constitution but you don't think judges should strike it down or enjoin it, then you are saying you are willing to let certain violations go unremedied in law. This sits uneasily with rule of law notions about what judges are supposed to do. (I will describe a slightly different claim, the argument from under-enforced norms, in a moment).

As a result, arguments for "more judicial restraint" are often thinly disguised forms of arguments about what the Constitution substantively protects or does not protect. That is, you tend to argue for judicial restraint in cases where you think the challenged practice is constitutional and so you naturally invoke the principle of majority rule; you reject calls for judicial restraint where you think the practice is unconstitutional and therefore we must preserve constitutional values from depredation by mere politics.

There are, however, several other possible variations of the argument for judicial restraint. One variation is that you have strong views about what the Constitution protects, but you believe those views should only be enforced through statutory law or executive action. As noted previously, this is really an argument against judicial review.

A second variation is that you have strong views about what the Constitution protects, but you believe those views should only be enforced through statutory law or executive action because you think courts aren't very good at enforcing these particular kinds of rights. This is the argument for underenforced constitutional norms I mentioned earlier. It is an argument from judicial futility. It makes sense in many contexts, but the problem with the argument is that sometimes it may prove too much: the argument for judicial futility would seem to apply even if the rights in question were created by statute or administrative regulation.

The third variation is that you have strong views about what the Constitution protects, but you think that you should not express them openly or fully in judicial opinions because you might be wrong, and because whether you are right or wrong, your announcement might have certain bad consequences. This is an argument for prudence.

I am not sure which position Eric takes, but my suspicion is that it is a fourth position, which is that outside of securing basic norms of political competition, the Constitution should not be interpreted to prohibit much of anything at all. That is, Eric supports judicial restraint because his basic substantive view is that majorities should be able to solve most problems of governance.

Now nobody who can get appointed to the federal courts believes that courts should generally get out of the business of judicial review; almost everybody mainstream enough to get a job in the federal judiciary thinks that there plenty of things that courts should be able to declare unconstitutional. They differ on what those things should be because they have different substantive views about the Constitution. So they tend to argue for more judicial restraint in different areas of the law. Put another way, because judicial restraint is a claim made against the background of acceptance of judicial review, it tends to be tied closely to competing substantive views about the Constitution.

That does not mean that we won't have periods where courts exercise judicial review to a greater or lesser extent, given the cases that come before them (Or in the case of the Supreme Court, the cases they chose to hear, which I suspect tends to creates a selection bias toward increased judicial review and away from judicial restraint. I'd be interested in whether there is any empirical data supporting this hypothesis.). If we start to see more judicial restraint in the federal courts, I agree with Eric (or at least one position of Eric's) this will not be because judges have bought into the latest academic theories about good judging. Rather, it will be because this is consonant with changing substantive agendas, as happened with liberals for a time during and immediately following the New Deal. (Conservatives, meanwhile, took the opposite view, at least where economic regulation and federalism were concerned.)

Later on, conservatives in the 1960s, 1970s and 1980s supported judicial restraint because they didn't like the new rights-protecting decisions of the Warren and early Burger Courts. However, because these conservatives had largely made their piece with the New Deal, a general policy of judicial abstention was hospitable to their substantive views about the Constitution. So they preached judicial restraint, loud and long, and Felix Frankfurter and Oliver Wendell Holmes were their idols.

By the time conservatives gained control of the courts, a new generation didn't see why the earlier generation was making such a big deal about judicial restraint. For them the point was to use the power of the judiciary to promote correct substantive views about the Constitution in areas like affirmative action, environmental regulation, campaign finance and federalism. They seemed less committed to judicial restraint (and liberals correspondingly more committed) because of their substantive views about the Constitution and because of the sort of controversies that came up during this period. This should not be surprising if people tend to offer arguments for judicial restraint selectively with respect to particular substantive areas of the law, while ignoring these arguments when they wish to protect constitutional interests they believe are quite important.

The story for liberals, not surprisingly, is mostly reversed. It is no accident that the liberal legal academy starts talking about taking the Constitution away from the Courts after they recognize that the courts have largely been taken away from them. It is also no accident– but ironically appropriate– that the romance with popular constitutionalism among liberals begins when the most powerful social mobilizations of the past two decades had come from the right and not the left. The irony, of course, is that although popular constitutionalism was offered as a response to an increasingly conservative Court, the reason why the courts were conservative was precisely because of the forces of popular constitutionalism, which had produced a conservative constitutional culture and a more conservative judiciary that reflected it.

One last point about judicial restraint. People often talk as if a policy of judicial restraint was something wholly in the power of judges to put into place. I think this is incorrect. Because judges are the most salient actors in producing constitutional law it might look as if they are the major cause of more restraint or less. But if you expand the time frame, you will see the story is more complicated. Judges get appointed because of their likely substantive views about the Constitution, so the responsibility for judicial restraint in particular areas also depends on the appointments process, which responds to the vector sum of political forces in the country at a particular point in time. Elect more conservative Republicans, and you get more judicial activity in striking down (or limiting) environmental regulations, affirmative action plans, telecommunications regulations, regulations invoking the commerce power, civil rights laws, and so on, with more judicial restraint exercised outside of this set of cases. Elect more liberal Democrats, and you tend to get judicial review exercised more often in a different set of cases, with a corresponding sphere of judicial restraint.

In addition, we must pay attention not only to the demand side– the appointment of judges who are likely to follow certain philosophies, but also the supply side– the production of litigation that these judges will hear. Charles Epp and more recently Steven Teles have emphasized the importance of the litigation support system that brings certain types of cases before courts. The more cases that are brought in a systematic fashion before courts seeking rights protection, the more likely courts are to recognize and expand these rights, even when we account for the courts' ideological balance. Epp points out for, example, that even as the Supreme Court became more conservative in the 1970's it expanded protection of women's rights because it got a steady diet of sex equality cases brought by public interest groups, including most notably, cases brought by Ruth Bader Ginsburg and her allies. The Court did not decide all these cases in the way that public interest lawyers wanted, but the repeated promotion of sex equality cases in a concerted litigation strategy pushed the law in their direction.

During the 1990s and afterwards, Teles points out, a second generation of conservative public interest firms began bringing successful challenges before the courts which shaped the direction of constitutional law. What both the liberal public interest lawyers and the conservative public interest lawyers have in common is that both tried to raise legal claims that invoked the power of judicial review. Getting courts to intervene to protect rights (or limit federal power) often has a more concentrated effect on the law than getting courts to stay out of a particular area; the latter often produce effects that are far more diffuse and also far more difficult to measure. Moreover, closing down judicial review in an entire area tends to produce less opportunities for future shaping of the law through litigation, and this matters greatly when public interest groups seek continuing funding from their patrons. Thus, if public interest firms on the right or on the left want to create ripple effects in the legal system with a potential for lasting consequences, there appears to be an asymmetry between pushing for judicial restraint and pushing for judicial activism. As a result, public interest law firms whether liberal or conservative have generally tended to ask judges to be more active, not more restrained.

Given these supply side effects, the movement by conservative jurists away from judicial restraint is overdetermined. Conservatives gaining control over the federal courts plus the concerted strategies of conservative public interest lawyers were likely to produce increased judicial activism in a conservative direction. Conservatism today supports judicial restraint only fitfully; the rhetoric of the 1960s and 1970s hasn't always caught up with the reality.

Posted 3:56 AM by JB [link]

Comments:

Mr. Dooley might have put this more concisely:

"Depends 'pon whose Bush is being Gore-d."

in addition to his view that the court follows (or ignores, when appropriate?) the "illection returns."

# posted by

Shag from Brookline : 6:14 AM

Jack:

Later on, conservatives in the 1960s, 1970s and 1980s supported judicial restraint because they didn't like the new rights-protecting decisions of the Warren and early Burger Courts. However, because these conservatives had largely made their piece with the New Deal, a general policy of judicial abstention was hospitable to their substantive views about the Constitution. So they preached judicial restraint, loud and long, and Felix Frankfurter and Oliver Wendell Holmes were their idols.

By the time conservatives gained control of the courts, a new generation didn't see why the earlier generation was making such a big deal about judicial restraint. For them the point was to use the power of the judiciary to promote correct substantive views about the Constitution in areas like affirmative action, environmental regulation, campaign finance and federalism. They seemed less committed to judicial restraint (and liberals correspondingly more committed) because of their substantive views about the Constitution and because of the sort of controversies that came up during this period. This should not be surprising if people tend to offer arguments for judicial restraint selectively with respect to particular substantive areas of the law, while ignoring these arguments when they wish to protect constitutional interests they believe are quite important.

The story for liberals, not surprisingly, is mostly reversed. It is no accident that the liberal legal academy starts talking about taking the Constitution away from the Courts after they recognize that the courts have largely been taken away from them.

I would suggest that the liberals here are offering a fourth variation of judicial restraint where the new conservative courts should be forced to recognize prior liberal precedent, even when the prior liberal court did not follow the principle of judicial restraint and its precedent reaches an outcome outside the Constitution.

For example, when the Roberts Court held that government racial preferences violate the Constitution's requirement of equal protection under the law and reversed prior liberal precedent which declined to enforce the EPC, many liberals claimed that the Court's conservative majority was somehow violating the principle of judicial restraint by declining to defer to prior liberal precedent.

More recently, we have been hearing the same argument in anticipation that the conservative majority on the Court will hold that the People really do enjoy the right to keep and bear arms under the Second Amendment and will reverse the prior liberal precedent limiting the Amendment to a "collective right."

In reality, I would contend that the conservatives in these cases are following your basic norm of judicial restraint - If you think that the Constitution prohibits X, then striking down X is not a violation of the principle of judicial restraint; it's enforcing the law.

In turn, the liberals are not really arguing for the norms of judicial restraint. Rather, they are arguing to maintain the products of prior liberal non-restraint. In other words, the liberals are complaining that they rewrote the Constitution fair and square and that conservatives should be compelled to respect that precedent as if it were the Constitution.

# posted by

Bart DePalma : 8:43 AM

The concept of judicial restraint is much discussed in relation to judicial review in the UK. Here it takes the form of the Courts being unwilling to decide matters which the executive or the legislature are better equipped to decide, in particular because the Court is ill-equipped to embark on a fact-finding enquiry.

One gets the impression that in the USA it features as a variant on the originalist --v living constitution approach to judicial review - a matter where all common law courts except the USA adopt the 'living constitution' approach - see Reyes v. R (Belize) [2002] 2 AC 235, [2002] UKPC 11 at para 26:-

“A generous and purposive interpretation is to be given to constitutional provisions protecting human rights. The court has no licence to read its own predilections and moral values into the constitution, but it is required to consider the substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a maturing society (see Trop v Dulles, above, at 101). In carrying out its task of constitutional interpretation the court is not concerned to evaluate and give effect to public opinion, for reasons given by Chaskalson P in State v Makwanyane, 1995 (3) SA 391, in para. 88:

“Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority.

The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society.””

# posted by

Mourad : 11:24 AM

Bart:

It's one thing to talk about affirmative action precedents and the like. But the Roberts Court also overturned a 100 year old antitrust precedent against vertical price controls, decided at a time when the Court was much more pro-business than it is even now.

The conservative movement is made up of some combination of ignoramuses (who really believe what their leaders tell them about judicial restraint) and dishonest jerks (who know it isn't true but say it anyway). But no honest, intelligent conservative will say that everything the conservatives are doing is about judicial restraint.

# posted by

Dilan : 1:22 PM

Dilan, you forget that many of us are perfectly willing to say that "judicial restraint" is deserving of no respect, that what we want are not judges who are restrained or activist, but judges who rule correctly.

Wrong precedent should not bind the judiciary, the swear an oath to the Constitution, not their predecessors' mistakes.

# posted by

Brett : 6:31 PM

Bart:

You have framed the inquiry entirely wrong. You claim conservatives actually practice judicial restraint because: "If you think that the Constitution prohibits X, then striking down X is not a violation of the principle of judicial restraint; it's enforcing the law." In other words, one acts consistent with notions of judicial restraint when declaring unconstitutional a law or policy that violates the constitution. However, you change the rules of the game when it comes to liberals. You say liberals are not arguing for the norm of judicial restraint but just for respect of precedent or stare decisis. This mis-frames the inquiry. The real question is what the liberals, like the conservatives you say practice judicial restraint, think about the constitutionality of the underlying policy or law, not a court decision analyzing the policy or law. You are comparing apples to oranges. If you support conservatives because of their view of the constitutionality of certain policies or laws, you must evaluate liberals on the same terms: what is the liberals' view of the constitutionality of certain policies or laws, not their view of court decisions interpreting those policies or laws. Judicial restraint is not the same thing as stare decisis.

Now if you evaluate both the conservatives and the liberals on the same terms, it's clear that both groups argue for judicial restraint by employing the logic Jack presents: If you think that the Constitution prohibits X, then striking down X is not a violation of the principle of judicial restraint; it's enforcing the law. The difference between conservatives and liberals is not, as you suggest, over which variation of the norm of judicial restraint is most appropriate, it is over which substantives policies or laws the constitution prohibits. It's the underlying substance that differs, not the methodology.

# posted by

Unknown : 6:46 PM

"It's the underlying substance that differs, not the methodology."

Only superficially true; Conservatives and liberals, on average anyway, differ in the methodology by which they determine what that underlying substance is. Conservatives, after all, do not openly advocate the notion that the Constitution has to mean whatever it would be prudent it mean, regardless of what it says. Many liberals do.

# posted by

Brett : 7:20 PM

Adam:

I was actually addressing liberal academia's claim that the Robert's court is not practicing judicial restraint when they reverse liberal precedent which itself did not observe judicial restraint.

I was not making an argument about whether liberals follow the Constitution today. However, the votes of the four liberals on the Supreme Court and occasionally Justices Kennedy and/or O'Connor are not exactly encouraging in this regard.

# posted by

Bart DePalma : 9:27 PM

Brett:

It is an entirely defensible (though wrong) position to not believe in stare decisis at all. (The reason it is wrong is that while we can argue as to what they are, there certainly are precedents that have been around long enough and have been relied on so much that it really would not be worth it to "correct" the law and overrule them.)

But as you note that position is not a position of judicial restraint. And the problem that a lot of liberals, including myself, have, is this pretense by conservatives (reflected ably by Bart) that they are all about judicial restraint and a modest judicial role while liberals are all about striking down the will of the people. THAT picture is completely phony.

# posted by

Dilan : 11:26 PM

Conservatives, after all, do not openly advocate the notion that the Constitution has to mean whatever it would be prudent it mean, regardless of what it says. Many liberals do.

This isn't true at all, Brett. It misdescribes "living constitutionalism" (which DOES NOT say that the Constitution means whatever is prudent) and also assumes a good faith among conservatives that doesn't exist in many cases.

"Living constitutionalism" means that the text must be interpreted in light of modern circumstances. However, a living constitutionalist would not hold that the Constitution, for instance, guaranteed everyone a right to housing or a minimum income, even if those things were thought prudent-- because nothing in the Constitution could possibly protect such things.

Rather, a living constitutionalist might hold that even though the Fourteenth Amendment was not originally intended to preclude states from imprisoning gays and lesbians for having sex, the concepts of due process and equal protection, when interpreted according to our modern understandings, preclude treating gays and lesbians so unfairly.

But you have to have the textual principle that you can apply. If the Constitution truly doesn't address the issue, living constitutionalism can't change that fact.

On the other hand, you assume good faith among the conservatives. Yes, Justice Scalia incessantly babbles about his originalism and commitment to the Constitution as written, but in fact, many cases reveal that he's an unprincipled right-wing zealot who isn't nearly as principled as he thinks he is. You can see this very well in Eleventh Amendment cases as well as medical marijuana, preemption, and affirmative action. In all those cases, original intent gets thrown out the window.

Unless you are arguing that merely paying LIP SERVICE to originalism makes conservatives superior to liberals, I don't see how your argument is tenable.

# posted by

Dilan : 11:35 PM

Isn't the 'originalism' -v- 'living constitution' controversy what makes the Heller -v- DC case so fascinating. There is the Roberts court having to rule on a gun control law, a subject on which right-wing wingnuts feel passionately.

There they are floundering through all the 1791 materials to try to discern the intent of the Framers with the difficulties of which Justice Wn J. Brennan Jr spoke:-

“In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact. But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage point we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions.
All too often, sources of potential enlightenment such as records of the ratification debates provide sparse or ambiguous evidence of the original intention. Typically, all that can be gleaned is that the Framers themselves did not agree about the application or meaning of particular constitutional provisions, and hid their differences in cloaks of generality. Indeed, it is far from clear whose intention is relevant—that of the drafters, the congressional disputants, or the ratifiers in the states?—or even whether the idea of original intention is a coherent way of thinking about a jointly drafted document drawing its authority from a general assent of the states. And apart from the problematic nature of the sources, our distance of two centuries cannot but work as a prism refracting all we perceive."

Obviously the Framers were thinking in terms of muskets and flintlocks, not the possibility of Dick Cheney shooting duck with a machine gun, or someone desirous of having a laser guided anti-tank weapon in the garage. But "arms" has a fairly all encompassing meaning.

On an 'original intent' construction, if an individual right is identified, how can it be regulated at all ?

# posted by

Mourad : 4:31 AM

dilan said...

"Living constitutionalism" means that the text must be interpreted in light of modern circumstances. However, a living constitutionalist would not hold that the Constitution, for instance, guaranteed everyone a right to housing or a minimum income, even if those things were thought prudent-- because nothing in the Constitution could possibly protect such things.

Rather, a living constitutionalist might hold that even though the Fourteenth Amendment was not originally intended to preclude states from imprisoning gays and lesbians for having sex, the concepts of due process and equal protection, when interpreted according to our modern understandings, preclude treating gays and lesbians so unfairly.

How do you figure that a living constitutionalist will limit him or herself to inventing a constitutional right to sodomy but not a constitutional right to have the government provide everyone with equal housing or income based on the same theories of equal protection and substantive due process?

The Ninth Amendment provides even more fertile ground for the living constitutionalist to invent previously unknown rights.

The neat thing about inventing rights out of whole cloth by rewriting the Constitution is that there are no limits.

# posted by

Bart DePalma : 9:46 AM

The neat thing about originalism is that one size does not fit all, with new variations surfacing when the old may be challenged. McGinnis and Rappaport have a paper on SSRN titled "The Desirable Constitution and the Case for Originalism" noted at Legal History Blog with a comment by Prof. Dudziak and the abstract. (While I was able to download this paper, it would not print.) Here's the closing paragraph of the post:

"Our argument does not merely explain why originalism is the preferable theory of interpretation; it also reveals the type of originalism that should be employed. Rather than attempt to determine the best originalist interpretive theory in some abstract sense, we should employ the interpretive rules that the constitutional enactors intended to apply. In that way, we use the meaning that actually passed through the supermajoritarian process. We call this form of originalis 'original methods originalism.'"

Yet another version to add to the originalism score card. But there remains a reliance upon "intent" requiring sometimes mind reading of certain, but perhaps not all, of the enactors. Does this take us back to "original intent" (originalism 101) which had taken so many hits resulting in newer versions that "original methods originalism" now adds to? Is this like method acting for conlaw scholars?

# posted by

Shag from Brookline : 11:06 AM

shag:

One should start with the text and then only consult the understandings of the drafters and ratifiers if the text is somehow unclear.

I share Scalia's doubts about evidence of original intent, but it is a far superior method of determining the meaning of the Constitution than are the personal policy preferences of a living contitutionalist.

# posted by

Bart DePalma : 12:37 PM

And if the text is not clear, we "consult the understandings of the drafters and ratifiers"? I'm pleased to see Bart apparently dropping "intent" in his sharing arrangement with his gumba. But this may permit selective understandings of [some of] the drafters and ratifiers" and not all. Perhaps a supermajority as suggested by McGinnis and Rappaport? That might result in quantity versus quality of understanding. So we come back to the problems noted by Paul Brest in his 1980 article, including who and context. Maybe the next variation of originalism will be "divine originalism." If so, I'll go into my cellar and look for my constitutional divining rod.

# posted by

Shag from Brookline : 1:15 PM

How do you figure that a living constitutionalist will limit him or herself to inventing a constitutional right to sodomy but not a constitutional right to have the government provide everyone with equal housing or income based on the same theories of equal protection and substantive due process?

Because, Bart, there's a difference between what smart liberals actually do when they are interpreting the Constitution, and what uninformed conservatives THINK they are doing.

The Ninth Amendment provides even more fertile ground for the living constitutionalist to invent previously unknown rights.

Let's get this straight. The framers of the Constitution explicitly intended that rights didn't have to be enumerated to receive protection. And then, if a liberal or libertarian finds that there is such an unenumerated right, that judge is being unprincipled and inconsistent with the framers' intention?

Really, Bart, one of the things that all this originalism misses is that the framers THEMSELVES understood that the meaning Constitution would adapt to changing contexts. Nobody thought that future generations would not find punishments cruel and unusual that the framers tolerated. Nobody thought that future generations would not find things to be unreasonable searches and seizures that the framers didn't contemplate banning. And the Ninth Amendment was an invitation for future generations to determine what aspects of society were fundamental and worthy of protection.

The fact is, conservatives hate gays and hate abortion. So they have to pretend that the ACTUAL framers' intention (that each generation take a fresh look at the Constitution and its interpretation) be sublimated to the understanding of the document in 1787 and 1791, and further they have to pretend they are committed to that model when in fact in other cases, such as affirmative action, they abandon it to get the results they want.

That's the reality of constitutional interpretation, Bart. I'm sorry that Justice Scalia has been lying to you. I'm more sorry that you are a big enough dupe to believe him.

# posted by

Dilan : 3:06 PM

Thanks, Brett, for your candour but:

Dilan, you forget that many of us are perfectly willing to say that "judicial restraint" is deserving of no respect, that what we want are not judges who are restrained or activist, but judges who rule correctly.

You misspelled "... the way I think they should rule."

Cheers,

# posted by

Arne Langsetmo : 9:34 PM

dilan:

1) The Ninth Amendment was meant to protect well established rights which were not enumerated in the prior eight amendments. However, more than one living constitutionalist as suggested that the Ninth Amendment be used instead to create novel rights which are not established at all in our law.

2) Not a single one of the Framers and almost no jurists for the first century or so of the Republic would have conceived of rewriting the Constitution without the benefit of amendments to suit the particular policy preferences of a particular judge or panel of judges. Exceptions like Plessy were so glaring because they were rare. Judicial rewriting of the Constitution really got going during the New Deal.

3) Most conservatives do hate killing unborn children, but generally do not give much thought to homosexuals unless they are attempting to redefine marriage and the like.

4) Conservative jurists are hardly perfect. However, if you compare the holdings of Scalia to Ginsberg, you will find that Scalia is closer to the text and original intent than Ginsberg 9 out of 10 times. It is not even close.

# posted by

Bart DePalma : 11:57 PM

Bart says:

"....but generally do not give much thought to homosexuals unless they are attempting to redefine marriage and the like."

Uh, ok. You mean they don't give much thought to homosexuals unless they are trying to obtain equal rights, raise a family, or generally live their lives in peace...

It's also clever how you define the argument as a "right to sodomy" as opposed to what it really is--the rights of two consenting adults to engage in activity that harms no one. I suppose you, the strict constructionist that you are, would state that a legislature could ban heterosexual sex without running afoul of the Constitution.

And speaking of original intent and strict constructionism, could you also point me to the Article of the Constitution that allows data mining of emails by Presidential fiat?

# posted by

Unknown : 12:17 AM

Since even "Conservative jurists are hardly perfect" SCOTUS is somewhat like the game of horseshoes: "Close enough wins." (See Bush v. Gore.) A few more "ringers" on SCOTUS and Roe will be overturned to support that provision in the conservatives' Bill of Obligations: "Women, because you are women, are obliged to keep, carry and bear fetuses to term so that when they grow up they can keep and bear arms. Men, because you are men, must do your thing, including keeping and bearing arms (romantically and otherwise), to make sure that women satisfy their obligations, which shall be paramount even in the event of rape, incest and any other means of fertilization and/or risks of health and death to said women therefrom."

# posted by

Shag from Brookline : 5:58 AM

1) The Ninth Amendment was meant to protect well established rights which were not enumerated in the prior eight amendments. However, more than one living constitutionalist as suggested that the Ninth Amendment be used instead to create novel rights which are not established at all in our law.

Well, you are begging the question here, which is, how does a right get established in our law.

It seems to me that one of the ways it can get established is through fundamental changes in societal mores. That is certainly what has happened with contraception and also with Lawrence v. Texas.

2) Not a single one of the Framers and almost no jurists for the first century or so of the Republic would have conceived of rewriting the Constitution without the benefit of amendments to suit the particular policy preferences of a particular judge or panel of judges. Exceptions like Plessy were so glaring because they were rare. Judicial rewriting of the Constitution really got going during the New Deal.

What you call "rewriting" is not rewriting. It's reinterpreting. There's a difference.

Also, I hate to tell you this, but it really does expose what a fraud you are about originalism, Bart. Plessy was COMPLETELY CONSISTENT with the original intent of the 14th Amendment. Nobody thought they were banning segregation, only separate AND unequal.

3) Most conservatives do hate killing unborn children, but generally do not give much thought to homosexuals unless they are attempting to redefine marriage and the like.

If this were true, they wouldn't care so much about preserving sodomy laws.

Further, it isn't true. Drive through rural North Carolina and listen to the preachers on the radio, Bart. They HATE gays and lesbians, whether they are marrying or not.

4) Conservative jurists are hardly perfect. However, if you compare the holdings of Scalia to Ginsberg, you will find that Scalia is closer to the text and original intent than Ginsberg 9 out of 10 times. It is not even close.

I am sure you have done the scholarly paper proving this, Bart. All I can say is I follow the Court pretty well and, (1) Scalia and Ginsburg AGREE a lot of the time; and (2) when they disagree, sometimes Scalia is originalist, sometimes Ginsburg is, and sometimes neither is.

But as I said, if you are so sure this is wrong, prove it and publish a paper. A paper that actually showed this would get quite a lot of play in the law reviews.

# posted by

Dilan : 3:51 PM

dilan said...

BD: 1) The Ninth Amendment was meant to protect well established rights which were not enumerated in the prior eight amendments. However, more than one living constitutionalist as suggested that the Ninth Amendment be used instead to create novel rights which are not established at all in our law.

Well, you are begging the question here, which is, how does a right get established in our law.

It seems to me that one of the ways it can get established is through fundamental changes in societal mores. That is certainly what has happened with contraception and also with Lawrence v. Texas.

A right gets firmly established in our law by being included in the law (i.e. statute and court precedent.) Emerging changes in social mores which call for reversing long time laws are by definition not well established.

The Constitution leaves codifying changes in social mores to legislators elected by the People. If these changes are indeed fundamental, proponents will not have a problem enacting legislation advancing these changes. In most cases, these emerging mores are not shared by a majority of the People, which is why the litigants are asking the Court to invent new rights.

2) Not a single one of the Framers and almost no jurists for the first century or so of the Republic would have conceived of rewriting the Constitution without the benefit of amendments to suit the particular policy preferences of a particular judge or panel of judges. Exceptions like Plessy were so glaring because they were rare. Judicial rewriting of the Constitution really got going during the New Deal.

What you call "rewriting" is not rewriting. It's reinterpreting. There's a difference.

No, it is a distinction without any real difference.

When a Court allows the government to favor one race over anther, it has written the term equal out of the EPC.

When a Court finds a right to kill unborn children which is nowhere written or reasonably implied by the Constitution, it has rewritten the Constitution to add this right.

Also, I hate to tell you this, but it really does expose what a fraud you are about originalism, Bart. Plessy was COMPLETELY CONSISTENT with the original intent of the 14th Amendment. Nobody thought they were banning segregation, only separate AND unequal.

The radical Republicans who moved the 14th Amendment through Congress had no intent to establish Jim Crow.

Equal means equal.

# posted by

Bart DePalma : 4:12 PM

Bart,

Even though are politics are apparently very different, I am sympathetic to your concerns that this new left-wing fascination with restraint is nothing more than a partisan and results-oriented movement. That is not an appropriate use of the philosophy, any more so than it was when judges like Frankfurter, Burger, or Rehnquist, claim to rely on it, in order to avoid remedying a constitutional or legal wrong, ripe for a judicial remedy.

The doctrine however, is not that new; it is much older than marginal political shift from Rehnquist and O'Connor to Roberts and Alito, which have marginalized the political moderates and liberals on the court. In fact, the concern began to emerge not long after Rehnquist first joined the court (see Edelman v. Jordan, Douglas, J. Dissenting) and continued during his service as the Chief Justice. One of the better expressions of the concern is found in Justice Souter's dissent in Seminole Tribe of Florida v. Florida, a good poriton of which is published in nearly every Constitutional Law or Fed Courts/Fed-State Relations casebook.

Put the issue in its context and you see why liberals have a concern with judicial restraint that was every bit as legitimate as Holmes's or Frankfurter's. Judicial restraint is neither always appropriate nor always inappropriate. However, it is extremely strange when a judge, like Rehnquist, purports to rely on it when it leads to a result that favors a certain interest group, even though it is not legitimate in that case, but then scraps it completely when he has a chance to favor that same interest group, even when it would be appropriately invoked.

This kind of two-faced jurisprudence characterized Rehnquist. It is very disturbing, and and the concern with it is very legitimate.

When today's liberal and moderate judges raise the issue, there is the chance that it could be an underhanded attempt to preserve wrongly-decided cases. If that happens, I'll call it when I see it.

Right now, I'm more concerned that Roberts and Alito have shown no compunction against continuing the two-faced Rehnquist school of "restraint" and I am very concerned about the effect it has had, and will continue to have, on eroding the rule of law in America, from the top down.

# posted by

Matt Kanin : 9:04 PM

The radical Republicans who moved the 14th Amendment through Congress had no intent to establish Jim Crow.

Equal means equal.

Bart, they also had no intent to ban segregation. Plessy called for "separate but equal". It was completely consistent with original intent, which was to strip the "badges of slavery", i.e., UNEQUAL treatment. This is universally accepted, Bart.

What happened, of course, is that in the 75 years thereafter, separate turned out to be very unequal.

Further, the 14th Amendment was also seen as consistent with race-based programs to aid blacks (i.e., the Freedman's Bureau).

The fact is, the current conservative interpretation of the 14th Amendment has nothing to do with originalism. It is simply a naked desire to ban programs that help blacks.

# posted by

Dilan : 12:12 AM