Monday, December 11, 2017

Fault Lines in the Constitution at the National Constitution Center

Sandy Levinson

Along with Gerard Magliocca, who will be talking about his excellent new book on the Bill of Rights, my wife Cynthia and I will also be at the National Constitution Center on Friday, December 15 (which happens to be Bill of Rights Day) to talk about our book Fault Lines in the Constitution.  We were in Washington this past weekend speaking at the National Archives, and anyone interested in watching that presentation can click on to this Youtube site.  We address eighteen different such fault lines and can necessarily talk only about a small subset of them at any given presentation, so the Friday presentation, which will take place from 1-2 PM, will necessarily focus on some different fault lines from those discussed in Washington.

Since it is Bill of Rights Day, we'll begin with the story of Eugene Debs, who went to jail for ten years (until pardoned by the under-rated Warren G. Harding, who also invited Debs to visit him at the White House) for opposing American participation in World War I.  It's not only that the First Amendment proved to be simply a parchment barrier, but also, and more significantly for our purposes, that the Constitution says very little about "emergency powers" more generally, and the one things we know, contrary to the assertion of the Court in the Steel Seizure Case, is that emergencies often do indeed create the ostensible grounds for exercising powers that are nowhere explicitly spelled out.  Many modern constitutions, such as the South African Constitution of 1994, do a far better job of contemplating a variety of potential emergencies and the possible responses that might be legitimate (and for how long).

No doubt, since we'll be speaking at a National Constitution Center program designed for high school students, we'll also note the gubernatorial candidacies of teenagers in both Vermont and Kansas, the two states that do not have minimum age requirements to run for governor.  These kids are remarkably articulate, and I strongly hope that they are allowed to participate in the debates next year in those states.  One of the unfortunate consequences of the eligibility fault line established by the US Constitution is not only that we don't even have the opportunity to hear the articulated views of relative youngsters who might have important things to say to us (such as, for example, a 24-year-old veteran of one of the endless wars currently being conducted by the U.S., arguably without sufficient authorization by a supine  Congress).

I will also take this occasion to note that Fault Lines has been designated one of the best books of 2017 by Publishers Weekly, Kirkus Review, the School Library Journal, the Washington Post, and the New York, Chicago, and Denver Public Libraries.  The Foreign Policy Journal declared that it "should be taught in every school."  And the Richmond Times-Dispatch last week said that it would be "a fitting addition for homes where discussions, engagement and open discourse define the family culture."  Though written for teenagers, it also has much in it for the teens' grandparents, parents, aunts, uncles, and big brothers or sisters.  I can't imagine a better gift for whatever holiday you might be celebrating this season :)

I am following my regular practice of opening this for comment, but it's really hard to imagine why anyone would bother, other than anyone who actually looks at our National Archives presentation or, perhaps, has looked at our book.  In that case, comments would be fully welcome.

Friday, December 08, 2017

Judge Kozinski Impeachment Hearings

Gerard N. Magliocca

The story in today's Washington Post about Judge Alex Kozinski's alleged conduct towards some of his law clerks and other employees in the Ninth Circuit should trigger a formal inquiry by the House Judiciary Committee. I'll reserve judgment on whether Judge Kozinski has committed a high crime and misdemeanor under the Constitution, but the question should be reviewed by the institution with the authority to decide that question. Perhaps, in the end, the answer will be that the most appropriate sanction is some sort of censure or reprimand by the Ninth Circuit.

Thursday, December 07, 2017

The Bill of Rights as a Continuity Tender

Gerard N. Magliocca

Next Friday is Bill of Rights Day, and in advance of that occasion I want to discuss an important function of our Bill of Rights. As David Strauss explained in an excellent article that marked the bicentennial of ratification in 1991, a bill of rights can serve many purposes. One that Strauss did not address that is part of my book is that the Bill of Rights is a "continuity tender," which my co-blogger Richard Primus defined in a recent article as "not a principle with practical consequences, but a ritual statement with which practitioners identify themselves with a history from which they descend."

The designation of the first ten amendments as the Bill of Rights does not perfectly match this definition, as there are some practical consequences to the inclusion or exclusion of items from that special list. For the most part, though, the Bill of Rights is and has been used to legitimate exercises of constitutional authority by symbolically connecting those acts to the past. Why does that work? Part of the answer is that bills of rights have been a crucial part of Anglo-American law since the Glorious Revolution in 1688. Another part of the answer is that what we call the Bill of Rights came from the Founding Fathers (more or less). This gives the first ten amendments a unique aura.

Nevertheless, references to the Bill of Rights routinely contradict the main schools of constitutional interpretation, at least in spirit. The original understanding of the first ten amendments is that they were not a bill of rights--Madison and the First Congress, for example, did not consider them one. Originalists, however, routinely call these amendments the Bill of Rights. On the other hands, living constitutionalists who normally do not privilege the Founding do so when they describe only what was ratified in 1791 as the Bill of Rights. Thus, the Bill of Rights is a tangled continuity tender.

Wednesday, December 06, 2017

Baking Chaos

Andrew Koppelman

Yesterday's oral argument in Masterpiece Cakeshop v. Colorado, in which a baker claims a free speech right to refuse to make a cake for a same-sex wedding, suggested that a majority of the Court may be inclined to rule for the baker. 

But the most coherent way for the justices to do that would signify almost nothing about the larger question of how to resolve the tension between same-sex rights and religious liberty. Instead, it would complicate President Trump’s life in, of all things, the apparently unrelated travel ban case.
I explain in a new piece at American Prospect, here.

Masterpiece Cakeshop and how “religious liberty” became so toxic

Andrew Koppelman

Until recently, almost all Americans were for religious liberty. Then LGBTQ rights and the contraception mandate came along. This week, the Supreme Court heard oral arguments over the question of whether a small cake-making business can refuse service to a gay couple — a clash both left and right have elevated into a key moment in the culture wars.
Many on the left now regard “religious liberty” as a coded term for discrimination and exclusion. Many on the right feel they are being persecuted for their unpopular beliefs.
The current unpleasantness is unnecessary. The tradition of religious liberty has the resources to handle this. Religious liberty has never meant a right to hurt people, but it has stood for a tolerance of the unfamiliar that opens a path to a reasonable settlement.
With only a slight course correction — aided, one hopes, by a Supreme Court that aims to dampen culture clashes, not exacerbate them — religious freedom can be everyone’s friend again.
I explain in a new piece on, here.

Tuesday, December 05, 2017

Update on the Calabresi-Hirji paper on the Federal Judiciary

Guest Blogger

Gary Lawson

Steve Calabresi is on his way to Israel for a week – without a laptop.  He asked me to let interested readers know that he and Shams Hirji have taken their paper on judgeships down from SSRN in order to make some revisions in light of the extensive comments generated by the paper.  A revised version should be back up within a few weeks.  The conversation continues.  Thanks.  Gary Lawson.

Friday, December 01, 2017

Upcoming Talks on the Bill of Rights Book

Gerard N. Magliocca

I have two talks coming up on my new book that are open to the public. The first one will be at the National Constitution Center in Philadelphia on Friday, December 15th at 10AM. This event will be part of the Center's Bill of Rights Day Symposium, and will also feature a talk by Professor Noah Feldman about his new book on James Madison. The second talk will be at the National Archives in Washington DC on Friday, January 26th at Noon. Please come if you can, as I am reliably informed that there are readers of this blog in both cities.

Senator Flake isn’t a Liberal, and Neither is Chief Justice Roberts

Richard Primus

There is a familiar motif among Court-watchers about conservative Justices migrating left over the course of their time on the bench.  This week, the website ran a story of this genre under the title Is Chief Justice Roberts a Secret Liberal?  It’s a bad story, and I’ve said so by Tweetstorm.  But I’ve also seen other outlets pick up the FiveThirtyEight story and repeat the idea, so I figure it’s worth laying out the reasons why it’s bad story clearly and in a forum that’s conducive to a little bit of sustained argument.

The FiveThirtyEight story is an examination of what the story takes to be a demonstrated fact: that Roberts has moved to the left.  But the answer to the story’s titular question is no.  Roberts isn’t a liberal, secret or otherwise.  (Except in the classical/market sense, and to the extent that  Roberts is that kind of liberal, it’s never been a secret.)  But the topic may require a longer discussion.  Why do some people think that Roberts is in fact a liberal (in the prevailing political sense), having either secretly been so all along or having moved left since become Chief Justice?  Similarly, whence the more general idea that conservative Justices regularly move left? 

Where Roberts is concerned, a big part of the answer is of course the salience of the Chief Justice’s votes in the two big ACA challenges, NFIB v. Sebelius and King v. Burwell.  Where the more general question is concerned, a big part of the answer is more or less the same thing, generalized: the experience of many conservatives over the past quarter-century of being repeatedly frustrated at the Court’s unwillingness to do certain things that those particular conservatives think the Court should do (like overrule Roe, or end affirmative action, and so on), even though the Court has had a Republican-appointed majority for decades.  In short, there’s a gap between where (many) conservatives are on salient legal issues and where Roberts—or the center of the Court—is.  Roberts or the center of the Court seem, in those salient ways, to be to the left of the relevant conservatives.  And one way to explain that gap would be to say that Roberts, and other Justices who were appointed as ostensible conservatives, moved to the left after being appointed.

That’s the answer that the FiveThirtyEight story takes as factual.  And it purports to do so not just on the basis of anecdote or impression but on the basis of the thing that is the stock-in-trade of FiveThirtyEight: data.  The story presents lots of data about decisions Roberts has made and the voting coalitions he has joined—tables, graphs, and other such stuff—which it says show that Roberts has in fact moved to the left.  More generally, it says that similar data show that several Republican appointees to the Supreme Court moved left over the course of their careers. 

But I don’t think Roberts has moved to the left.  And the data presented do not prove that he has. 

The story’s analysis suffers from a huge and basic flaw. It’s more or less the same flaw that Joseph Fishkin and Cary Franklin went to town on when the New York Times ran a cognate story two years ago about the ostensible liberalism of the Court as a whole.  It’s regrettable that the point needs to be made again.  But apparently it does.  So here goes. 

In brief: Maybe Roberts isn’t moving to the left.  Maybe the questions the Court is being asked are moving farther and farther to the right.

Consider an illustration.  At Time 1, the Court hears a case in which the question presented is “Does the Second Amendment confer an individual right to own firearms?”  Justice X votes yes.  At Time 2, the Court hears a case in which the question presented is “Does the Second Amendment confer an individual right to carry automatic weapons near schools?”  Justice X votes no.  Has Justice X moved left between Time 1 and Time 2?  There’s no reason to think so.  Justice X might hold the ordinary and consistent position that the Second Amendment confers an individual right and that the scope of that individual right does not include the carrying of automatic weapons, or the carrying of weapons near schools, or the combination of the two.  But in the data on which the FiveThirtyEight story relies, the first vote would be coded “conservative” and the second vote “liberal.”  Thus “showing” that Justice X had moved to the left from Time 2 to Time 2.  Even if he hasn’t.

There’s a similar problem with the portion of the data that codes Justices as liberal or conservative based on the frequency with which they vote with other Justices.  Go back to the two hypothetical firearms cases.  In the Time 1 case, Justice X would vote with the most conservative Justices and against the most liberal ones.  In the Time 2 case, the situation would be reversed.  But Justice X hasn’t moved at all.  What’s changed is the question he is answering, not his views on the subject matter. 

So now we need to bring in a big fact that the FiveThirtyEight story (and others like it) seem not to have on screen at all.  It’s this: The questions presented in the cases that the Supreme Court decides move through ideological space over time, tracking the ideological direction of the Court itself.  As the median Justice moves right or left (that’s oversimplified, but it’ll do for schematic purposes) on a particular issue, questions that used to be contestable become settled, and other questions that used to be settled become contestable, and litigators know it, and cases are brought at the new frontier—cases that the Supreme Court would never have bothered to hear before, if anyone had even tried to litigate them.  In terms of the firearms example above: ten years ago, it wasn’t yet settled that the Second Amendment conferred an individual right at all.  We were still litigating that question.  Only after that Time 1 question is settled do the courts move on to confront questions like the Time 2 question.

In recent decades, in most (but not all) issue spaces, the questions in the Court’s cases have moved farther and farther to the right.  The Second Amendment context I’ve been using is one example.  See also affirmative action, criminal procedure, federalism, campaign finance, and takings—and that’s just in constitutional law.  (A significant exception, within constitutional law, is LGBT+ issues: more on that later.) This general rightward movement is not mysterious.  Except for the parts of the 2015 and 2016 terms when the Garland stonewall kept the Supreme Court at eight members, the Court has had a GOP-appointed majority continuously since 1970. The law has evolved as shaped by those majorities.  And as the law moves farther and farther to the right, the questions that the Court considers also move farther and farther to the right.  So Justices who are “to the right of where the law is” at Time 1 might come to straddle more of the questions at Time 2.

Put more concretely: Sure, Chief Justice Roberts didn’t read the ACA to require its own self-destruction in King v. Burwell.  But the legal theory he rejected was a highly aggressive theory.  One can be conservative and still not think THAT.  Or, to use an imprecise but serviceable analogy: Senator Jeffrey Flake isn’t a secret liberal just because he’s against Roy Moore.  The more Roy Moores the GOP nominates, the more such people Flake will oppose (I hope).  Flake still won’t be a liberal.

In sum: The data in the FiveThirtyEight story might show that Roberts is not as far right as he once was relative to the questions he’s being asked.  But those questions are moving right.  Without reading the underlying studies closely, I can’t be sure whether what I’ve said here explains all of what’s being reported about those studies or just most of it.  But when you read studies and stories like these, keep this dynamic in mind.

In my conversations on this topic, one question I’ve been asked is about Justice Alito.  If what I’m saying is right, the question goes, shouldn’t other conservative Justices also seem to be moving left?  Alito, appointed by the same President as Roberts, doesn’t seem to be moving that way.  It’s a good question, but the answer is pretty simple.  On a lot of issues, Alito is farther right than Roberts, even though both Roberts and Alito are within the ideological space that was attractive to the George W. Bush Administration when it decided whom to appoint.  A bunch of of litigated issues have now reached the zone where Roberts might come down on either side, and fewer have reached the analogous zone with Alito, because the law has to go a little farther before it gets to him.  But—the big and simple point—anyone can be the median Justice, or the median voter in any constituency, regardless of the substance of that person’s views.  All that matters is who else is in the group.  If the next two Supreme Court appointments replace Democratic appointees with people to Alito’s right, then Alito will start to look like a liberal, too—at least to the people who read data in the way the FiveThirtyEight story does.  And though these data sets don’t show Alito moving right, they do show apparent rightward movement for several other Republican appointees in the last half-century.  John Paul Stevens began as a moderate conservative and left the Court at its left-wing edge not because he radically changed his worldview but because the world, and the institution, changed around him.  (Which isn’t to say that in thirty-three years he never rethought an idea.)

This same analysis explains why we should be skeptical that Roberts’s appointment is a case of failed GOP vetting.  Vetting failures occur when something about the candidate would disqualify him if it were known to the people responsible for selection at the time of the selection decision.  In 2005, when Roberts was appointed, there was nothing wrong with him from the point of view of most committed conservatives in the American legal elite.  His commitments on the salient issues were just right.  (This is a statement made roughly: I don’t mean to be saying that his precise views fit a particular conservative template exactly, in part because there is no such precise template.)  In 2005, that group of elite conservative lawyers had no clue that seven years later they would be converging on a particular set of legal arguments which, if accepted, would destroy a statute not yet drafted by attacking particular features of that statute which were not yet objects of conservative obloquoy.  For the most part, they developed those views (in good faith, I stipulate) after Roberts was on the bench—and in significant part, Roberts developed right along with them.  He agreed with the commerce argument in NFIB, after all.  To be sure, he didn’t go all the way with the ACA challengers, and that was a big deal.  But how he would come out on the ACA as a tax wasn’t a vettable question in 2005. The vetters of 2005 couldn’t possibly have posed it: the relevant features of the law are too complex and contingent to have been imagined in the abstract.  And even if the question could have been posed in the abstract, the vetters would probably not have regarded it as an important question for a nominee to answer, unless they knew that the legal question they were asking would be presented in the context of the ACA (or some similarly opprobrious statute).  In this context, what is called a failure of vetting is really a failure to predict whether a nominee will change in the future, in a certain direction and at a certain rate that matches the direction and rate of change of a certain set of elite opinions in the party that nominated him.  Ascribing the phenomenon to vetting misses that fact and also lays blame where it doesn’t belong: it suggests that the fault lies with some combination of the vetters’ incompetence and the nominee’s sneakiness, rather than the nominee’s failure to change in the future in a way that the vetters could not possibly completely specify. (If your spouse doesn’t share a new passion that you develop after years of marriage, you’re on shaky ground asserting that he or she isn’t the person you thought he or she was when you got married.)

Finally, consider an area that I marked above as an exception to the law’s general rightward trend: LGBT+ issues.  The Court as a whole has moved dramatically to the left in that space during the last thirty years.  But the exception is itself instructive. Yes, the Court moved left in this domain in absolute terms.  But relative to mainstream opinion, it stayed pretty much the same, which is to say that the Court’s movement largely mirrored that of the country.  Leftward movement on this issue was possible in an era when the Supreme Court had Republican-appointed majorities precisely because an important slice of Republican opinion was moving left on the issue: Dick Cheney endorsed same-sex marriage six years before Anthony Kennedy did.  And as for vetting?  Kennedy wasn’t vetted for his views on same-sex marriage in 1988, and if he had been, he’d have passed with flying colors, because he had no idea that one day he’d have the view that he turned out to have in 2015. 

None of this is to say that Republican appointees never move to the left.  Over time, people sometimes rethink things.  Harry Blackmun moved left on capital punishment, and Anthony Kennedy has plausibly (if not uncontrovertibly) moved left on affirmative action.  But the big mass of data that some take to show several Republican appointees trending left over the course of a few decades would be pretty well explained by noting that during those decades, the contested space of the legal questions the Court confronts has, on most issues, moved farther and farther to the right.  Which it has. 

This observation might not ease the frustration of conservatives who would like Roberts to be as conservative as they are, or to develop farther toward the right as fast as they do.  Nor will such conservatives necessarily be comforted by the knowledge that liberals are no strangers to this kind of frustration.  A great many liberals find the Democratic appointees on the Court maddeningly tepid in their liberalism.  And if that problem stings liberals less than the parallel problem stings conservatives, it might be only because the liberals know they wouldn’t win cases even if the Justices they’re frustrated with moved farther left: a majority requires persuading at least one Republican appointee, and that’s been true since before Justice Gorsuch entered kindergarten.  Which is why the law has moved steadily to the right.  Which is why it can look like Justice Roberts is moving left.  Which I think he isn’t doing. 

Thursday, November 30, 2017

Habeas Corpus in Wartime

Gerard N. Magliocca

Earlier today a Federal District Judge in Washington DC held a most unusual hearing on a habeas corpus petition. The petition was brought by the ACLU on behalf of an unidentified man who is being held in the custody of the United States. According to media reports, the man is an American citizen who was captured and is allegedly a supporter of the Islamic State. For the past three months or so, this man has been held without being charged with a crime or being designated as an enemy combatant subject to detention in Guantanamo Bay. He is a citizen in legal limbo, though the DOJ attorney assured the District Court that the Government was "diligently" working to decide what to do with this man.

This case demonstrates why people should read Amanda Tyler's exciting new book on Habeas Corpus in Wartime: From The Tower of London to Guantanamo Bay, just published by Oxford University Press. Professor Tyler focuses on the role that habeas corpus and its suspension have played in English and American wars since the 17th century. Her definitive history establishes that the notion that American citizens can be detained for a lengthy period without a criminal charge or a suspension of the writ was invented in the 20th century and is totally at odds with the Framers' view.

I want to raise two broader points that the book made me reconsider. The first is how the debate over originalism is framed. Typically people associate originalism with conservative legal outcomes and living constitutionalism with liberal outcomes. Sometimes that stereotype is true, most notably with respect to abortion. In other instances, though, that view is not true. Applying the original meaning of the Suspension Clause would mean that the unidentified man currently being held as an ISIS suspect must be charged with a crime (which may be impossible given the way in which he was captured) or released. I think it's fair to say that this would be described by most people as a liberal outcome. Two of the dissenters in Hamdi v. Rumsfeld took this position, and they were Justice Stevens and Justice Scalia. It's easy to see how both men (despite their differences) might reach this conclusion. If we paid more attention to how originalism and living constitutionalism function across a wider array of topics, that might illuminate the discussion.

A second piece of "food for thought" from Professor Tyler's book involves the rigidity of the common law and its uncomfortable fit with modern jurisprudence. One reason why the Court might have rejected the original meaning of habeas suspension in Hamdi is that the choice between a criminal charge and freedom seems unsophisticated. Surely there is a middle ground, the argument might go, that was not appreciated in the past or is more suited to the current problem (in other words, dealing with alleged terrorists). In some respects, of course, we have moved beyond the common law's binary solutions towards something more nuanced. (A simple case would be the shift from contributory to comparative negligence in torts by most states.) And one can understand how all-or-nothing solutions may find a hard time garnering the votes of five Justices. Still, nuance is sometimes overrated, and there are instances in which the common law arrived at the best solution. I think that the history that Habeas Corpus in Wartime proves that the common law was right and Hamdi was wrong, but I leave that for readers to judge for themselves.


Wednesday, November 29, 2017

The “Responsive City” Reloaded: Can US Cities and Localities Push Against the Trump Administration also in the privacy field?

Guest Blogger

Bilyana Petkova

In a recent exhibition of Mark Tobey at the Peggy Guggenheim Museum in Venice, the curators beautifully invoke Tobey’s fascination with the City – “its dizzying, towering architecture, thoroughfares and pervasive whirl of electric light”. There are many reasons to be fascinated with modern urban centers – above all, their dynamic ambiguity – the controversial middle space they occupy between catalysts of both inequality and equality, of hope and hopelessness. But as new technologies are eroding the famed anonymity of city life, are our cities becoming also final bastions of privacy protections?
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Stephen A. Douglas's all-important question about judicial legitimacy

Sandy Levinson

What follows should be read in the context of Richard Primus’s and Keith Whittington’s absolutely superb postings on the issues raised by the proposal to pack the federal judiciary with Trump nominees chosen, de facto, by a combination of the Federalist Society (Leonard Leo) and the Heritage Foundation.  I agree that this exemplifies “constitutional hardball.”  There’s no doubt about the formal power of Congress to adopt the proposal, but there should be as little doubt that its adoption would fray our “mystic bonds of Union” even further. 

What I find particularly depressing about the defense offered of the Calabresi-Hirji proposal, helpfully linked in Richard’s post, is its last paragraph.  I have known and liked Steve Calabresi for many years.  He is an honorable man, as illustrated by his vehement opposition to the charlatan Donald Trump in the last election.  On another matter, he is also part of a wide-ranging group of academics who agree that life tenure for Supreme Court justices is a mistake and should be modified; we disagree on whether this requires a constitutional amendment (his position) or could be done through carefully crafted legislation (my view).  Many, though not all, of the arguments would apply to life tenure for "inferior judges," who, as a result of the shrinking Supreme Court docket, are in fact ever more important in the actual governance of the US.  In any event, he is a careful scholar, even if one disagrees with many of his arguments (as I do, for example, with regard to the "unitary executive").  Thus it is especially dispiriting to read the argument set out in his conclusion:

Voters who told pollsters in 2016 that they cared more about judicial selection broke heavily in favor of Donald Trump over Hillary Clinton.  Donald Trump ad a popular mandate to pick Justice Scalia’s successor and to pick a whole lot of other lower court judges like him.  Make no mistake about it Professor Primus.  The American people are against you on judicial selection.

Make no mistake:  This is the argument of a propagandist, not a careful scholar.  This is also true, incidentally, of his argument that the fact that Republicans have won roughly 60% of the presidential elections--though not, of course, elections to the Senate--over the last half-century means they are entitled to have 60% of appointments to the federal judiciary.  Begin with the obvious point that Donald Trump did not come close to carrying even a plurality of “the American people.”  All one can say, arguendo, is that people who rated judicial selection as their primary criterion broke in favor of Trump.  One suspects this is a proxy for Evangelical Christians, given Donald Trump's patent flouting of all of the self-professed "values" held by such Christians--see, e.g., Michael Gerson's invaluable columns in the Washington Post on this point--though, interestingly enough, not for the 2016 version of Steve Calabresi and other principled conservatives like Ilya Somin and Jonathan Adler (and many others) who were willing to subordinate their desire for compatible appointments to the recognition that Donald Trump was manifestly unfit to serve as President of the United States.   But this is not to say that those who voted for Clinton were indifferent.  Most (though not all) simply had more genuine respect for their candidate than many Trump voters had for their champion.  Clinton supporters had higher priorities, such as medical care, demonstrated knowledge about the world, and overall competence.  In any event, the Calabresi-Hirji argument is basically founded in Jacobin majoritarianism centered on presidential power, a position not often linked with the professed views of the Federalist Society that Calabresi helped to found and which proudly uses a portrait of James Madison in its logo.  

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Partisanship, Norms and Federal Judicial Appointments

Guest Blogger

Keith E. Whittington

The politics of federal judicial appointments is as heated and as high-profile now as it has ever been in American history. For an important segment of both political parties, the federal courts have become a critical policymaking institution, and as a result both parties have been pushed to treat judicial appointments as an important political battleground.

Political scientists have long argued that courts are inevitably political institutions. They decide important questions of public policy, and they are constituted by political means. Federal judges might sit one remove from electoral politics, but that is not enough to place them outside of politics. Voters, interest groups, and elected officials have not always been deeply motivated to focus their attention and energy on the courts, but courts have periodically taken the center stage of American politics.

The courts are the third branch of government laid out in the U.S. Constitution. While individual judges are made independent from the elected branches of government, the judiciary as a whole is largely made dependent on the goodwill of the legislature and the executive. The courts have been a political prize to be won and a lagging indicator of political success. Through that political influence, the effective constitutional rules of the political system itself are ultimately responsive to political currents. As Jack Balkin has noted, a party that can win the “constitutional trifecta” and control all three branches of government has enormous opportunities to reshape the political landscape.

Political parties can most directly shape the federal judiciary by placing judges on the bench. They can do that through the familiar process of selecting like-minded judges to fill vacancies, but they can also do that through the less-familiar process of increasing the number of vacancies to be filled by expanding the bench. The American political parties have periodically sought to create a friendly federal judiciary by creating more judgeships. As Justin Crowe had detailed, partisan and policy calculations have rarely been absent from congressional decisionmaking on whether to expand or reorganize the federal courts. President Franklin Roosevelt’s ill-fated proposal for “judicial reorganization,” or less euphemistically “Court-packing,” not unlike the Federalist Party’s lame-duck judicial reform of 1801, became an infamous case of political overreach. The reaction to those efforts to manipulate the federal judiciary for partisan ends helped construct our “small-c constitution,” the norms and practices that bolster and extend the rules formally entrenched in our textual Constitution. We have taken the lesson of the Court-packing plan to be that elected officials should not push too hard to reshape the courts.

But what counts as “too hard”? In the summer of 1968, Chief Justice Earl Warren and President Lyndon Johnson tried to insure that a Democratic appointee would succeed Warren, even as the Democratic presidential hopes in 1968 looked increasingly dim. Warren’s strategically timed retirement was called out for the political ploy that it was, and even a Democratic controlled Senate balked at confirming Abe Fortas as chief justice on the eve of the election, and so the seat fell to the Republican Richard Nixon to fill after the inauguration. On the other hand, the Democratic Party took advantage of their return to unified control of Congress and the presidency after Watergate to reorganize and expand the federal judiciary. President Jimmy Carter was somewhat unlucky in not seeing a Supreme Court vacancy during his one term of office, but thanks to Congress he was able to fill an unusually large number of seats on the federal circuit courts. Since the 1980s, Republicans have been routinely charged with trying to “pack the courts,” not because they have been manipulating the number of available judgeships but because they have been unusually focused on the judicial philosophy of their nominees when filling routine vacancies.

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