Monday, July 07, 2003


Legal Xenophobia

In a column at NRO online, Quin Hillyer bitterly denounces Justice Kennedy's citation of a 1981 decision by the European Court of Human Rights, Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981), in his majority opinion in Lawrence v. Texas:

There you have it: The values of Europe, and the decision of its (misnamed, borderline anti- Semitic) Court of Human Rights, are deemed somehow relevant for American constitutional jurisprudence.

On one level, Anthony Kennedy's line of reasoning should be familiar to American youngsters and parents nationwide. It's not much more than a gussied up version of "Johnny's mommy lets him do it, so why can't I?" (Or, more precisely, if Johnny can do it, shouldn't Billy's mom let him do it too — and by extension, if Billy's mom lets him do X, shouldn't I be able to do Y?)

But on a deeper level, the citation borders on the subversive. If the authority of extra-national courts is held to be even partially dispositive in the United States (especially without a formal treaty yielding a specific measure of American sovereignty on a particular issue), then the same foreign authority cited in supposed defense of liberty could be cited to take an American individual's liberty away. . . Unable to find clear authority in the U.S. Constitution for its raw exercise of judicial will, the Kennedy majority looked to a foreign source for justification. But any American with native intelligence can see that down that road lies alienation from our country's rule of law.

I don't find Hillyer's fears or his objections very plausible. There's nothing in American constitutional jurisprudence that prevents American courts from looking to the decisions of other courts, any more than they are prevented from citing treatises, or law review articles, or, for that matter, learned books written in foreign languages. American courts, including the Supreme Court, have done this from the country's inception. No loss of sovereignty is involved in citing such cases, because the cases are what lawyers call persuasive authority rather than controlling authority.

Within our federal system, state courts routinely cite decisions of other state courts on common law issues (or interpretations of uniform acts or statutes that are roughly similar between states). They well understand that these decisions are not controlling. State A's common law is not binding on State B's. More to the point, interpretations of State A's statute are not binding on interpretations of State B's similar statute. Within the federal judiciary, decisions of one circuit are not binding on those of other circuits. Nevertheless, courts look to what other courts have decided for guidance, even if they ultimately reject those decisions. Why? Because there is some advantage to considering how other judges in similar positions facing similar problems have handled a particular issue. It helps to know what they have decided, and often equally important, why they decided it that way.

Yet, one might object, what if courts in Europe take positions that are at odds with cherished American liberties? For example, many countries around the world have restrictions on free speech that are inconsistent with American free speech law. What is to stop American courts from citing those decisions? Well, nothing prevents an American court from citing such decisions, but citing such a decision does not make it convincing to other judges, nor, more to the point, does it make the decision controlling legal authority. Judges often cite law review articles or treatises for positions inconsistent with existing doctrines, (and other judges cite contrary law review articles and treatises) but that doesn't mean that judges have to follow what the law reviews or treatises say unless the judges are convinced by their reasoning. In like fashion, judges are free to reject or completely ignore the decisions of foreign courts if they think that they are irrelevant or unconvincing. That is precisely what circuit courts do with decisions by other circuit courts they disagree with, and state courts do with decisions by other state courts they think are wrong. That's what it means for authority to be merely persuasive rather than controlling authority. (Perhaps Hillyer is worried that American judges will read these foreign court opinions and become convinced by them. If that's his real worry, I think there is a long list of law reviews and treatises he should keep out of their hands as well, not to mention books, movies and television shows.).

Hillyer might resent judges using foreign court decisions to support liberal causes he thinks are inconsistent with the best interpretation of the Constitution. But there is no reason why Justice Scalia or other conservative jurists couldn't cite other constitutional courts as support for positions they happen to admire. And, in the long, run, I suspect that this is exactly what will happen, once people get over the shock of seeing foreign court opinions cited: Decisions by various foreign courts will be cherry picked and cited by both sides of a dispute selectively to make their points, just as law review articles and treatises are cited.

I strongly suspect that the reason why Justice Kennedy picked the European Court of Human Rights is because it agreed with a position he otherwise supported, and because he regarded it as a respected court. It is very doubtful that he would cite with approval a court that he didn't agree with, or one that he thought was from a country with a long history of human rights abuses, because that would undermine the citation's persuasive authority. Here again, citiation of foreign court decisions seems to me very much like the way that judges currently cite law reviews or treatises. They cite them if they agree with them, or to underscore particular points in an argument they are making. They do not, and cannot cite them as controlling authority.

Presumably Hillyer accepts the practice of cross citation between American courts, and the use of treatise and law review articles as persuasive authority. Nevertheless, he insists that there is something insidious, or as he puts it, "subversive," about looking to the decisions or the reasoning of a foreign court. Unless he is merely engaged in a xenophobic rant against all things not truly "American," I cannot see why this should be so. Countries outside the United States also have laws and constitutions. They also have judges, many of whom were trained in or have familiarity with common law modes of argument. Many many others have been deeply influenced by American constitutionalism, which is one of our most lasting legacies to the world. American constitutional ideas shaped the formation of post-World War II constitutions around the world, which, in turn, innovated on American models and synthesized them with parliamentary ideas. It is hardly surprising that American lawyers might be curious about the forms of constitutional argument that have grown up in the past half century. We planted seeds years ago in many other lands that have now borne fruit. Americans can hardly take credit for all of these innovations: The Canadians and South Africans, to name only two, would surely disagree. But America played an important role in inspiring much of the constitution making that followed the Second World War, and we should not disdain the experiences that might be gleaned from it.

Indeed, it is quite commonplace these days for constitutional courts around the world to cite the decisions of other constitutional courts, including the American Supreme Court, as persuasive rather than as controlling authority. Nobody believes that these citiations somehow deny these countries their sovereignty or undermine their constitutional systems. (Hillyer does not explain why frequent citation of American Supreme Court decisions by other counties' constitutional courts has not destroyed their constitutions and made them mere appendages of America). For the past half century, constitutional courts in Canada, Europe, Asia, Africa, and Australia have looked at what other constitutional courts around the world are doing in an effort to learn from each other as well as to avoid each other's mistakes. They have created a rich conversation about constitutions and constitution making. Here too they were not original; for the American Framers-- particularly James Madison-- undertook a deep study of the constitutions of the past and present when they began their deliberations in Philadelphia. That sort of interest in what other people are doing is not loss of sovereignty. It is wisdom and common sense.

The citation in Lawrence is quite modest when you compare it to what other constitutional courts are doing. All that Kennedy wanted to establish is a minor point: If Bowers is premised on the idea that homosexuality is inconsistent with Western values, (Chief Justice Burger's claim), or on the notion that any argument for homosexual rights "is, at best facetious," (Justice White's claim) we might look to see what other Western countries and constitutional courts have done. They are not American courts, to be sure, but they give some evidence of what Western values are and what is a reasonable as opposed to a facetious claim about liberty, just as decisions by state courts in the United States give some evidence.

What is remarkable is the degree of upset this modest citation has produced, of which Hillyer's op-ed is only one example. I wonder whether this upset is about something other than a desire to protect American sovereignty, for, as I have pointed out, that sovereignty is in no danger from the use of persuasive authority by foreign sources, any more than it is endangered by the citation to law reviews and learned treatises. What I think is going on is a certain visceral fear of something un-American creeping into the discourse of American constitutionalism. This is hardly the first time such xenophobia and No-nothingism have arisen in American history. Nor is it the first time that the purity of the American Constitution and American sovereignty have been defended by sanctimonious self-appointed champions against the poisonous ideas and tendencies of dreaded foreigners. It arises everytime people feel confronted with change. They strike out at that change by blaming it on something un-American.

The irony, of course, is that the American constitutional and legal system has never been so pure as its defenders believe. We have assimilated many different ideas into American law in the course of our history (many from Europe, I might add), and we remain a proud and free people. Indeed, Americans' ability to draw on ideas from all around the world, synthesize them and integrate them into our lives and our institutions is one of the abiding features of American ingenuity and one of the abiding strengths of American law. Something tells we that we will survive the occasional citation of a European court.

Thursday, July 03, 2003


The Supreme Court as a Majoritarian Institution

Brad Delong reprints the famous memo that William Rehnquist wrote when he was a clerk for Justice Robert Jackson in 1952. The Court was considering Brown v. Board of Education and related cases (which were carried over to the next Term). Rehnquist argued that states should be permitted to retain Jim Crow laws, and argued against overturning Plessy v. Ferguson, which he contended was correctly decided. At his confirmation hearings, Rehnquist stated that the memo reflected Justice Jackson's views, not his own, but the weight of the evidence seems fairly strongly against this. That suggests that Rehnquist may have given false testimony before the Senate in 1971, but hey, why should that matter?

In any case, Delong finds a number of statements in the memo puzzling. Here is one of them:

To the argument made by Thurgood Marshall [in Brown v. Board of Education] that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are. One hundred and fifty years of attempts on the part of this Court to protect minority rights of any kind--whether those of business, slaveholders, or Jehovah's Witnesses--have been sloughed off, and crept silently to rest. If the present Court is unable to profit by this example it must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men.

In fact, Rehnquist is competely right that majorities determine the constitutional rights of minorities. They do so through Article V amendments, through the passage of civil rights bills, and, equally importantly, they do so through their influence on the Supreme Court. As political scientist Robert Dahl pointed out many years ago, the Supreme Court is part of the national political coallition, it does not sit outside it; and it is heavily influenced by national political forces. Both what we call judicial restraint and judicial activism can and do serve the purposes of national elites and the dominant political coallition in the country. What Rehnquist did not understand is that although majorities do determine what rights minorities have, it does not follow that the Supreme Court should not protect minority rights, because it is part of the majority that runs the country.

Scot Powe's recent history of the Warren Court shows, I think, rather convincingly, that the Warren Court was neither the fearless judicial hero of liberal mythology or the judicial bogeyman of conservative mythology, a lone actor single handledly remaking American according to its own sense of justice. Instead, the Warren Court was working hand in hand with the dominant political forces of its time-- in the 1960's' the Cold War Liberalism of the Kennedy and Johnson Administrations. The Warren Court imposed national political values on Southern states, followed Congress's lead in civil rights policy, and (with a few exceptions) generally deferred to Congress. For example, although Brown was decided in 1954, the Supreme Court doesn't really get serious about desegregation of the South until after Congress passed Title VI of the Civil Rights Act of 1964, threatening to withdraw federal funding from southern school districts that did not desegregate. Much of the Court's work on protecting the poor either follows or is contemporaneous with Johnson's War on Poverty. And, as the dominant forces of politics changed following the 1968 election, the Supreme Court began, slowly at first, and then with greater rapidity to shift to the right. It did so both because of Presidential appointments, and because of the Court's role as part of the national governing coallition.

We can see the decisions in the most recent Supreme Court Term as reflecting these features of American politics. Here let me quote my friend and long time co-author Sandy Levinson, writing in Village Voice:

So what might explain last week's spate of "liberal" decisions? They are best understood in terms of how the court—and especially Justice O'Connor—perceives the current American center of gravity on such matters. With regard to affirmative action, the court—which is, after all, only permitting affirmative action rather than requiring it—is basically vindicating a national majority, especially among elites, that accepts relatively "soft" and opaque affirmative action—but not "quotas" or the use of ham-fisted point systems that are too transparent in the weight given to race or ethnicity. (And if local majorities, as has happened in California or Washington, ban affirmative action completely, that will clearly raise no constitutional problems.) Two crucial briefs were submitted in the Michigan law school case, one by 65 major American corporations, the other by a plethora of military leaders. Both testified to the importance of affirmative action in providing businesses and the military with minority executives and officers. One can be certain that most of the corporate CEOs and retired military officers who signed the briefs are Republicans, and that is just the point.

With regard to the second issue, gay and lesbian rights, the court realizes that 2003 is already far distant from 1986, when the court in Bowers v. Hardwick upheld Georgia's anti-sodomy law. The homophobia exemplified by such statutes is increasingly disdained by most Americans. (In his dissent, Clarence Thomas indicated that he would vote against such laws were he a legislator.) In 1986, after all, 24 states had anti-sodomy laws. By now the number is down to 13, and enforcement is rare. Even the 13, including Texas, are more complicated than one might think. Austin, the state's capital, several times elected a gay representative to the state legislature, and its elected sheriff is lesbian.

So the Lawrence sodomy decision fits the Warren Court model of actively protecting the rights of a minority once it has demonstrated it is not generally reviled, but is well on its way to general acceptance and integration. After all, the lesbian daughter of the vice president of the United States is herself a member of the Bush administration. It is no coincidence, moreover, that Justice Kennedy cited criticisms of Bowers by libertarian Republicans Charles Fried, Ronald Reagan's solicitor general, and Judge Richard Posner of the Seventh Circuit Court of Appeals.

In this sense, the young William Rehnquist was completely correct that majorities determine what rights minorities have. What he did not understand is that sometimes majorities think it quite important to protect minorty rights, because it serves their own interests, because it helps shore up the country's legitimacy, or simply because they have come to believe, as a result of a long process of social movement contestation, that a minority is not being treated fairly, and protecting their rights is just the right thing to do. That is, the scope and content of what Americans regard as being part of their basic law, their fundamental law-- which they identify with the Constitution and with the Declaration of Independence-- changes over time as the country faces new experiences and new challenges. The meaning of highly abstract terms like liberty and equality is continually being contested in everyday politics, and struggles over the meaning of liberty and equality eventually have long term impacts on the beliefs of Americans, and on the beliefs of those who form part of the dominant political coallition in the United States.

What Rehnquist did not understand in 1952 is that even then his views on race were retrograde, and that lots of people in the United States had moved past his petty and parochial view that Jim Crow was perfectly constitutional and that Plessy v. Ferguson was correctly decided. He thought that if the Supreme Court stood up for racial equality, it would "see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men." How wrong he was-- and for such a intelligent man, how narrow his vision not to have understood the forces changing around him in politics and in society. In like fashion, the older Rehnquist has been unable to wrap his mind around the fact that the country's views about homosexuality have changed. What Rehnquist did not understand in 1952 is that the Court is part of the American political system, not outside it, that judicial independence and decision of cases according to legal argument is not inconsistent with its role as part of the national governing coallition but is rather the way that it properly performs its function of contributing to the continuing development of America's higher law.


Can Bloggers Be Sued for Libel?

Of course they can.

Andrew Sullivan, relying on a Wired Magazine story about a recent Ninth Circuit decision, engages in a little wishful thinking: "Libel laws may not apply to bloggers," he says hopefully.

What the 9th Circuit held (and what the 4th Circuit also held before them) is that section 230 of the 1996 Telecom Act protects people who run websites from being sued for republishing the libels of another person. Section 230 states that " no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

This does not mean that bloggers are immune from libels they themselves write. It means that they are immune from (for example) libels published in their comments section (if they have one) because these comments are written by other people and the blogger is merely providing a space for them to be published. Congress wanted to treat operators of chatrooms and other interactive computer services differently from letters to the editor columns in a local newspaper.

So if bloggers defame somebody, they can still be sued for what they say, just not for what someone else who publishes on the blogger's site says. The Ninth Circuit extends this immunity to people who run e-mail lists and republish the e-mails they receive to the list, even if they edit the e-mails a bit or do not republish every e-mail they receive. That is different from the rules that apply to print journalism. A newspaper is responsible for defamation in letters to the editor or op-ed columns that are published in the newspaper.

Linking is a more interesting question, still unsettled in the courts. My view is that if a blogger links to defamatory content, the blogger should ordinarily not be held liable for defamation; there might be an exception if the blogger is specifically vouching for the truth of what the blogger is linking to, thus incorporating the claims by reference. (Merely providing a link with approving commentary should not be enough to subject you to liability.) If the blogger redescribes the content in his or her own words, that redescription can be the basis of a libel suit.

Of course, much of what "pundit" bloggers write about concerns public figures, so the public figure would have to show actual malice (reckless disregard for truth or knowledge of falsity) in what the blogger said.

Finally, one of the great things about the blogging community is that people are always checking each other's work. (Indeed, I fully expect I will get some responses checking this post!). And bloggers often print retractions or modifications of previous postings, with links to the previous post so that the reader can see what has been modified. So the blogosphere has a few built in safeguards that other interactive computer services often don't. That doesn't mean that the blogosphere should be fully immune from defamation, and it isn't. But it does mean that this form of journalism serves a very valuable public function; not only do bloggers check each other's work, they can often help print journalists check their facts and do their jobs a little better. That improves the quality of public discourse, which, after all, is one of the purposes of defamation laws.

Wednesday, July 02, 2003


What Does Lawrence v. Texas Hold?

There appears to be some confusion about what the Supreme Court's recent decision in Lawrence v. Texas actually holds. The confusion has been encouraged by Justice Scalia's dissenting opinion, which, I think, systematically misreads Justice Kennedy's majority opinion.

For the record, Lawrence extends the fundamental right of privacy to same-sex intimate relationships. It does not strike down Texas' sodomy law on the ground that it fails the test of rationality, as Justice Scalia seems to assume. Nor does it hold that appeals to morality cannot be a legitimate government interest under the rational basis test for ordinary social and economic legislation. Rather, it holds only that when a fundamental right or interest is involved moral disapproval is not a sufficient interest to overcome the fundamental right.

In Lawrence, Justice Kennedy argues that Eisenstadt, Carey, and Roe each extended the rights of intimate association and decisional privacy protected by Griswold beyond married adults. He then argues that homosexuals have similar rights to form intimate associations, which are more than mere sexual conduct. Finally, he endorses the reasoning of Justice Stevens’ dissent in Bowers. All of this suggests that, Lawrence holds that the right to form same-sex intimate relations is part of the fundamental right of privacy. Note, moreover, that only after arguing for the importance of the ability to form intimate relations does Kennedy quote Stevens' dissent in Bowers, suggesting that Stevens' argument about morality applies only to fundamental constitutional interests like the right of privacy.

We can also see that Justice Scalia’s characterization cannot be correct by changing the justification for Texas's law: Suppose that Texas repassed its statute arguing that same-sex relations are harmful to public health. Or suppose that Texas argued that there is some evidence that homosexuality is a mental disorder (a position once taken but now long abandoned by the psychiatric profession) and that allowing same-sex sodomy might tend to exacerbate this mental disorder, while banning it would give marginal incentives for homosexuals to experiment with heterosexual relationships. Neither of these justifications is merely a claim of moral disapproval. Both are concerned with questions of harm and public health. But there is no doubt that neither justification would be sufficient to overcome the right of intimate association recognized in Lawrence. All this suggests that Lawrence is not, in fact, an application of the rational basis test.

The notion that mere moral disapproval is not sufficient to overcome a fundamental right is not a new idea. It follows directly from Griswold v. Connecticut, Roe v. Wade and Stenberg v. Carhart (the partial birth abortion case). Mere moral disapproval of contraception, abortion, or even of partial birth abortion is not sufficient to overcome a married couple's fundamental right to engage in family planning through use and purchase of contraceptives, a woman's fundamental right to chose (in Roe) or her right to choose the safest available method of abortion (in Stenberg). Thus, on this question, Lawrence makes no new law. (Scalia, of course, has long sought to overturn Roe and dissented in both Casey and Stenberg. He does not believe that abortion is a fundamental right and therefore moral disapproval would be sufficient to outlaw both abortion and partial birth abortion.)

Why, then, didn’t Justice Kennedy simply say that there is a fundamental right to engage in same-sex sodomy? The most likely reason is that he objected to this characterization of the right, because it demeaned homosexuals by reducing their intimacy to a sex act in a way that would never be done to heterosexual couples. The right to privacy, Justice Kennedy argues, is the right to form personal and intimate relationships of which sex is only a part. Justice Kennedy’s view, in short, is that there is more to a relationship than just sex.

The question that Lawrence leaves unanswered is how far the right of intimate association extends. Kennedy seemed to suggest that the right applies to noncommercial sexual relations. He also argued that the right of intimate association “should counsel [as a general rule] against attempts by the State, or a court, to define the meaning of [a personal intimate] relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.” Note that this language does not explain the scope of the right; rather it explains what kinds of justifications the state might make when it wants to regulate conduct which falls within the scope of the right.

So after Lawrence, we have two questions.

First, is a certain practice within the scope of the right of intimate association/sexual autonomy/reproductive autonomy?

If not, then regulation of the practice is subject to the ordinary rational basis test and the state may invoke morality as a reason for regulating the practice or even prohibiting it completely.

Second, if the practice falls within the scope of the right of intimate association/sexual autonomy/reproductive autonomy, then the State may not regulate the relationship absent a showing of harm or in order to protect the abuse of an institution the law protects. Examples of the latter would be marriage, parent child relations, or family relations generally. Mere moral disapproval of the practice is not sufficient; although it is clear that what constitutes abuse of the marital relationship, parent-child relations, or family relations will be heavily affected by moral considerations.

Lawrence leaves open many issues, including the question whether states may limit marriage to opposite sex partners. It does seem to foreclose the argument that the state may criminalize opposite-sex sexual relations between unrelated persons who are not married (fornication) and, if there was any doubt about this, masturbation. (Why Justice Scalia thought it important to assert the state's right to regulate masturbation on the basis that it is immoral is beyond me. I leave this very interesting question to your imagination.).

Finally, what about consensual incest between adults where there is no danger of pregnancy? The answer to this much more complicated question depends on how we understand the nature of the liberty protected by the Due Process Clause. Let me offer my views on what fundamental rights adjudication should be about.

My view is that a practice should be recognized as a fundamental right under the Due Process Clause only when social movement contestation has changed people's attitudes about a practice sufficiently so that it has become effectively normalized and large numbers of people feel that to criminalize the conduct intereferes with people's basic liberties and with their equal citizenship. Put another way, the scope of fundamental rights under the Due Process Clauses of the Constitution should be and usually is worked out through politics and culture, from the bottom up, not the top down. What courts usually do (and should do) is ratify large scale changes about beliefs in society that have long since occured. Then they recognize as part of American's basic law what most Americans themselves have already accepted as their basic law. I often explain to my students that once Jackie Robinson entered the major leagues in 1947, and Truman desegregated the Armed Forces, something like Brown v. Board was a foregone conclusion. Similarly, once Will and Grace becomes a Top Ten show in the Nielsen ratings, we may assume that gays have achieved a basic degree of acceptance in American society, even if they are not treated equally in all respects. What courts do in these fundamental rights cases is reflect changing social mores that are worked out in political struggles about basic values and then translated into constitutional doctrine. After recognizing these rights, what courts then do is work out the logical consequences of the shift in popular views about basic liberties. This is as true with respect to enumerated rights as unenumerated rights. After all, changing views about sexuality have also affected the scope of freedom of speech.

Note, by the way, that when I speak of a change in social mores, I am not claiming that the majority of Americans now think that homosexuality is morally unproblematic or that it is just as good as heterosexuality. Rather, I am claiming a more modest shift: the position that most Americans have adopted is that these matters are none of the government's business. A basic level of tolerance for gays has been achieved, and is still growing, full social acceptance for gays is still years away.

My view about the constitutional status of incest is fairly straightforward: There has been no sustained social movement in favor of incest between adults, arguing that it is moral and appropriate and that it's none of the government's business persecuting people who simply have a different lifestyle and who are genuinely in love with their brothers or sisters, or their sons and daughters (or their uncles and aunts). Large numbers of states have not decriminalized incest and it is unlikely that they will do so any time soon. There has been no constitutional law making from the ground up on this question. For this reason, courts should not extend the reasoning of Lawrence to cover incest. When there is a top ten sitcom on NBC called "Grace and her Father," about a father-daughter affair, then we can have a conversation about whether the right of intimate association should be extended to include consensual incest. Until that point, it should be subject to state regulation.

Thursday, June 26, 2003


Supreme Court Strikes Down Texas Sodomy Law, 6-3

This is a great day for liberty in the United States.

The opinion in Lawrence is by no means flawless, but it is much more than I think most supporters of equal citizenship for gays might have hoped for from the current Court.

Justice Kennedy wrote the majority opinion, joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Justice Sandra Day O'Connor concurred in the judgment.

The opinion is based on an extension of the right of privacy. Bowers v. Hardwick is overruled.

Justice Kennedy's opnion is noteworthy in several respects. First, he spends some time attempting to undermine the historical claim relied on in Bowers v. Hardwick that there is a long tradition of prohibition of same sex sexual relations; he argues that sodomy laws are of comparatively recent invention. Second, he points to decisions in other countries, including the U.K. as well as the European Court of Human Rights, as evidence that Western views about homosexuality have changed. Third, he argues that the reaffirmation of the right of privacy in Casey and the Court's decision in Romer v. Evans have undermined the precedental strength of Bowers, and that when a precedent's strength is undermined in this way, it is appropriate for the Court to look to scholarly commentary and the decisions of other constitutional courts. Finally, Kennedy argues that Bowers was wrong when it was decided, and it is wrong today.

Justice O'Connor concurred in the result, arguing that laws which are premised on mere moral disapproval of homosexuality fail the test of minimum rationality. This would also seem to reject a basic premise of Bowers v. Hardwick, which argued that the rational basis for Georgia's ban on sodomy was the legislature's moral disapproval of sodomy. O'Connor argues that Bowers involved general disapproval of sodomy; here, she insists, a ban only on same-sex sodomy must be nothing other than moral disapproval of homosexuals. In fact, I think this argument, which attempts to achieve a much narrower holding than the majority, is much more complicated than O'Connor thinks it is, for she is assuming a clear connection between what one does (engage in same sex relations) and who one is (a homosexual). That is, ironically, the very same assumption that Justices White and Burger made in Bowers.

Justice Scalia wrote the dissent, joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas.

Justice Scalia felt very strongly about the result, and read his dissent from the bench: "The court has largely signed on to the so-called homosexual agenda," he argued, although he also insisted that he has "nothing against homosexuals, or any other group, promoting their agenda through normal democratic means." As in his previous dissent in Romer v. Evans, Scalia argued that "The court has taken sides in the culture war."

Although that argument sounds superficially plausible, the Court also took sides in the culture wars in Brown v. Board and in the 1970's sex equality cases. That in and of itself is not a sufficient reason to reject the decision.

In fact, the Lawrence decision continues a well known practice of the Court, which is to follow larger political and cultural trends, and to declare a legal prohibition or practice unconstitutional only when most states have already repealed or greatly limited it.

In 1960, for example, virtually every state had an anti-sodomy law. Since then, these statutes have been repealed or overturned in 37 states. 13 states still have some form of sodomy laws on the books, 9 (Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia) ban all sodomy, 4 (Texas, Kansas, Oklahoma and Missouri) ban only same sex sodomy. All of these laws are likely unconstitutional in the wake of Lawrence.

In this sense the Supreme Court is much less antimajoritarian than is commonly assumed. To be sure, it clearly overturns decisions by particular majorities in states. But what is really does is impose a single national rule of minimal civil rights protection on the states that have contrary views. As I mentioned before, this is a fairly characteristic practice of the Court. Much of the work of the Warren Court, for example, can be seen as imposing national standards for criminal proceedure on recalicitrant states, mostly in the South, which had often cut corners where black defendants were concerned and violated their basic rights. It is probably more correct to say that Lawrence is antifederalist than that it is antimajoritarian.

The Supreme Court's decision to base Lawrence on privacy grounds rather than equal protection grounds (equality is what the petitioners originally argued) actually is a more modest change in the law than it first appears. By grounding gay rights in privacy rather than equality, the Court does not have to hold that gays are a suspect class or that classifications based on sexual orientation are entitled to heighted scrutiny. And it also holds off, for the time being, a decision about whether same sex marriage violates the Constitution.

Ironically, at the same time, basing Lawrence on privacy rather than on equal protection has some advantages for those members of the queer community who do not wish courts to view all sexual orientation minorities as a single group. An equality holding would push gays toward a civil rights paradigm based on an analogy to blacks and women. Instead, the queer community has been arguing for their right to conduct their sexual lives as they see fit, free from government sanction, thus allowing them to experiment with different forms of attachment and different forms of sexuality. A decision grounded in liberty rather than equality is more hospitable from this perspective.

Nevertheless, Justice Kennedy went out of his way to argue that the privacy right recognized in Lawrence is limited. It applies only to consensual conduct between adults, it does not encompass prostitution or public sexuality, or coerced sex, or sex with minors, (or, indeed, any of Rick Santorum's parade of horribles) nor does it give any right to same sex marriage or legal recognition of same-sex relationships. It is clear that this Court, at least, is not willing to say any more than that what homosexuals do in the privacy of their own homes is up to them. Of course, that's not the same thing as full equality of citizenship, and Kennedy's insistence on what people do in their "private lives" may eventually be turned to undermine the rights of gays to the extent that they are not fully free to express their sexual orientation in public. But it is a start.

Finally, Justice Kennedy's decision closes with a passage that sounds pretty much like an endorsement of living constitutionalism. He argues that the framers of the Due Process Clauses of the Fifth and Fourteenth Amendments "knew that times can blind us to certain truths and that later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

That's not very orignalist of Justice Kennedy, if I may say so.

UPDATE: Phil Carter discusses what this means for the military ban on gays. Because lower courts have relied so heavily on Bowers to justify the military's policies of exclusion and "don't ask don't tell," it seems likely that the constitutional underpinnings of these decisions will now collapse. But it will take some time.

Wednesday, June 25, 2003


The Calling of a Prophet (Or is it Profit)?

Apparently it's not Karl Rove who is behind President Bush's policies, as explained in this article from Ha'aretz:

According to [Palestinian Prime Minister Mahmoud] Abbas . . . Bush said: "God told me to strike at al Qaida and I struck them, and then he instructed me to strike at Saddam, which I did, and now I am determined to solve the problem in the Middle East. If you help me I will act, and if not, the elections will come and I will have to focus on them."

I for one am particularly glad to learn that George W. Bush has been acting on direct orders from Almighty God. If he had been relying on his own intelligence, I would be deeply worried that he was running the country into the ground.

Of course, it is always possible that God is hardening Bush's heart, as he did with Pharaoh.

Nah, wouldn't happen.

We all know he's a compassionate conservative. There's no chance that Bush could be hard hearted.

(But if you see any frogs or locusts, please let me know as soon as possible.)

Tuesday, June 24, 2003


See Dick Say Stupid Things

Glenn Reynolds wants to know if any left wing bloggers think that the following remark of Dick Gephardt is stupid:

"When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day "

On behalf of all lefty bloggers out there, let me say that if Gephardt meant to say that a president could unilaterally overturn a Supreme Court construction of the Constitution through an executive order, what he said was stupid. I'd be happy to give him a crash course in constitutional law, or even send him a copy of my constitutional law casebook (shameless self-promotion).

If all he meant was that he would try to migitate the effect of Supreme Court decisions he does not like through various executive orders, (which can sometimes be done constitutionally, especially if the decision in question is statutory or a construction of administrative regulations rather than based on an interpretation of the Constitution) he expressed himself very badly indeed and should work harder at being more precise and not misleading his audience.

Bryan Preston, however, wants to argue that Gephardt's remark is as bad as Trent Lott's remark that the country would be better off if Strom Thurmond had been elected President in 1948. With all respect for Bryan's undoubted love of our constitutional system, I'm afraid I can't go that far. Gephardt's remark shows that he panders to constituencies and has only a passing acquaintance with the separation of powers. Lott's remark shows that he panders to constituencies by using racist code. Gephardt should be ashamed of himself for telling folks that he can do what he has no power to do. Lott should be ashamed of himself for playing to racist sensibiilties.


How Honest is the Court's Decision in Grutter?

Stuart Buck points to some very puzzling language in Justice O'Connor's opinion:

The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer. The Law School's assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits. See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985); Board of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 96, n. 6 (1978); Bakke, 438 U.S., at 319, n. 53 (opinion of Powell, J.).

Stuart points out that this makes little sense if the court is applying the strict scrutiny that it says applies to all racial classifications, and regardless of whether whites or minorities are harmed or benefitted.

[N]ever have I seen a case in which a court announced that an entity accused of racial discrimination was to be given deference as to its claim that the discrimination at issue produced positive benefits. Supporters of affirmative action would do well to think hard and long before applauding this sort of analysis. (Unless, that is, the Court takes the unprincipled route of limiting the application of deference to this particular case.)

[Is that last parenthetical a reference to Bush v. Gore?]

I also found the language about deference rather striking, although for somewhat different reasons. The issue at stake in Grutter is whether Michigan is unconstitutionally discriminating on the basis of race. The Court seems to be giving them the benefit of the doubt because, presumably, it thinks that Michigan's decisionmaking process is benign rather than invidious.

I think this demonstrates, rather conclusively, that the majority is not applying strict scrutiny, even if they say they are. And it also seems to demonstrate that the Court has effectively adopted a distinction between benign and invidious motivation even though they deny it. Both of these positions are inconsistent with what the Court says in Adarand. (Although, I must point out, even Adarand is not really consistent with the rule it announces, because had the government contracting policies in that case favored whites instead of minorities, the Court would not have sent the case back for further hearings to see if the policy satisifed strict scrutiny but would have struck the policy down immediately.)

Thus, it seems that to this extent Justice Marshall and Justice Brennan's position in Bakke has won out, although nobody is willing to admit it. Even though Stuart and I probably don't agree about the result in Grutter, I am sure that he agrees with me that it would be better to be honest about what the Court is doing rather than to hide behind these particular legal fictions.

Monday, June 23, 2003


Do Republicans Have Litmus Tests, Too?

Perish the thought.

But according to this story from the New York Times, at least some of them do:

The Supreme Court rulings on the University of Michigan admission policies set off a wave of consternation among conservative groups today. As a result, several officials of the groups plan to demand that President Bush choose someone whose opposition to affirmative action is beyond doubt for a vacancy on the court. . . .

Many conservative public policy groups and conservative political figures have urged the adoption of a wholly race-blind policy that shuts the door completely on any advantage for race or ethnicity. There is great scorn among those conservatives who form an important part of Mr. Bush's political base for any equivocation on such issues. . . .

"It's outrageous that the majority in favor of these racial preferences was formed by Republican appointees," said Clint Bolick, vice president of the Institute for Justice, another conservative group that challenged the Michigan programs.

"Conservatives will want to make sure that anyone appointed to the court in this administration is a strong and sure opponent of racial preferences," Mr. Bolick said, adding that many do not believe that [Alberto R. ] Gonzales [the White House counsel] fits that description.

Speaking on the condition of anonymity, a lawyer who advises the White House on judicial nominations said Mr. Gonzales's position of openness to diversity is now an even greater problem with Mr. Bush's conservative supporters.

In fact, there is nothing suprising here. Since Richard Nixon, the Republican Party has been pursuing a strategy of partisan entrenchment-- attempting to place judges on the federal bench who will take conservatve stands on important issues like race relations, church and state, abortion, criminal procedure and federalism. The goal is to turn back decisions of the Warren and early Burger courts that conservatives cannot abide and to push the Constitution in still more conservative directions. (Indeed, one of the ironies of judicial nominations of recent vintage is that as the Republicans have been taken over by the party's vibrantly conservative southern and western wings, and thus become much more conservative in the past twenty years, the earlier Republican judicial appointments of Presidents Nixon and Ford have seemed altogether moderate by comparison.)

The quest to take back the courts from the wicked Warren Court and its liberal philosophy became even more urgent under President Reagan, and George W. Bush has pushed it even harder, refusing to compromise with Democrats, and thus helping contribute to the current unpleasantness over judicial nominations.

Until very recently, Republicans have simply cared more about the average judicial appointment than the Democrats have, and they have fought long and hard to put people who think the right way (in both senses of that term) on the federal bench. Although this is usually phrased in terms of appointing judges who will abide by the Framers' intentions and will uphold the law and not impose their personal perferences, the politics of Republican judicial appointments, particularly since Reagan, have been abundantly clear.

Nevertheless, President Bush, who is a shrewd politician, well understands that even as he attempts to pack the Court with judges whose beliefs he admires, he must keep public opinion in mind in making judicial appointments at the Supreme Court level (by contrast, very few members of the public pay much attention to lower court nominations). His father understood this point too, which, I think, explains both Souter's appointment and Thomas'. (Souter was more acceptable because unknown, Thomas was expected to be more acceptable because although he was very conservative he was also African-American).

I have long believed that it is not in the interest of the Republican Party for Republican-appointed judges to overrule Roe v. Wade. (See my discussion of the Supreme Court and party coallitions). Nor, for that matter, is it in the interest of the Republican Party for those judges completely to outlaw affirmative action in college admissions (government contracting is another matter). Getting rid of Roe and affirmative action through judicial fiat simply bolsters the Democratic coallition. I'm sure that Bush and Karl Rove understand this perfectly.

UPDATE: Brett Bellmore wants to know whether it is my view that Republicans were the first to engage in partisan entrenchment. Goodness no. The most important example is Democrat Franklin D. Roosevelt's stocking the courts with pro-New Deal judges, who eventually produced the New Deal revolution in constitutional law. Partisan entrenchment has been a key engine of constitutional change throughout the country's history, as Sandy Levinson and I have argued. In fact, partisan entrenchment is neither a Democrat or a Republican invention. It is a Federalist invention. It begins with the Midnight Judges Act of 1801, in which the lame duck Federalist Congress tried to stock the federal courts with their ideological allies. That attempt produced the famous case of Marbury v. Madison and the equally important if less well known case of Stuart v. Laird. The most lasting effect of this partisan entrenchment was none other than John Marshall himself, who continued to promote nationalist ideas long after the party that promoted him to the Chief Justiceship had been disbanded.


Supremes Affirm Michigan Law School Affirmative Action Policy, 5-4, Strike Down Undergrad Policy, 6-3

All in all, a big victory for institutions of higher education, which can engage in race conscious affirmative action as long as they engage in individualized determinations and do not use point systems to ensure a specific number of minority admissions.

The Law School policy, which focuses on achieving a critical mass of minority students, was upheld, 5-4.

Justice O'Connor wrote the majority opinion in the law school case. (Available here.) She reaffirmed the central premise of Bakke: "The Equal Protection Clause does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."

The lineup was the expected one: Stevens, Souter, Ginsburg and Breyer joined O'Connor. The dissenters were Rehnquist, Scalia, Kennedy and Thomas.

In the undergrad case, (available here) Chief Justice Renquist wrote the majority opinion. O'Connor and Breyer switched sides. Breyer concurred in the judgment but did not join Rehnquist's majority opinion. Stevens, Souter, and Ginsburg dissented.

The result, one hopes, is a set of two opinions that will allow schools to know what they can do and cannot do in affirmative action programs.

Several things are noteworthy about these opinions.

The Court reaffirmed Justice Powell's opinion in Bakke. Justice O'Connor, who has been concerned about treating students as individuals rather than as members of groups, focused on Justice Powell's concern with individualized determinations. As a result, she joined the majority in the undergrad case, where, Chief Justice Rehnquist said, the university failed to offer individualized determinations.

Because they require individualized determinations, Grutter and Gratz together will require state universities to spend extra money. The result benefits elite schools and private colleges with relatively fewer applicants and imposes more costs on large state universities that have many, many more applicants every year.

O'Connor's opinion in Grutter also made clear that the states do not have to adopt race netural alternatives (like ten percent plans, which are not really race neutral in any case) before they consider race conscious affirmative action in admissions. This is a rebuff to advocates of race neutral plans who insisted that if strict scrutiny applied to race classifications, then states would have to exhaust all possible race neutral methods of increasing minority enrollments before they considered race conscious affirmative action programs. Indeed, Justice Kennedy's dissent in Grutter says that he does not believe that what Justice O'Connor applies in Grutter is really strict scrutiny at all.

Finally, Justice O'Connor's opinion states near the end that she expects that 25 years from now race conscious affirmative action plans will be unnecessary and therefore unconstitutional. This is a familiar theme in her opinions-- she wants race conscious measures to be temporary, with sunset provisions, and she is deeply suspicious of plans that have no foreseeable endpoint.

Nevertheless, it is hard to know what to make of her statement in Grutter. Surely she is not saying that plans automatically become unconstitutional after 25 years. The best interpretation is probably that she wants a future Court to revisit the constitutionality of affirmative action plans if they go on too long. In other words, she is laying down a marker for a future Supreme Court someday to put an end of race conscious affirmative action in higher education, akin to the Court's retrenchment in school desegregation in 1990's cases like Pitts and Dowell. That leaves the door open for the Court to reverse Bakke someday, just not for many years. And it reflects Justice O'Connor's well-known tendency toward judicial compromise. (Update: I see that my friend --and former O'Connor law clerk-- Eugene Volokh concurs with this assessment of what O'Connor was doing in mentioning the 25 year period).

Most institutions of higher education should be breathing a sigh of relief at these two opinions. They allow most elite institutions to go about their business as before. They impose higher costs on big state universities, but many of these universities are already so firmly committed to affirmative action that they will probably gladly take on the additional costs. Essentially the Court has said that affirmative action in higher education is constitutional, as long as individualized determinations are made and specific markers or point systems virtually guaranteeing predetermined numbers of minorities are not used.


Jane's Law and the Problem of Self-Reference

Jane Galt of Assymetrical Information offers the following pithy assessment of contemporary partisanship:

Jane's Law: The devotees of the party in power are smug and arrogant. The devotees of the party out of power are insane.

Which leads to the obvious question: Which is Jane then, smug and arrogant or insane?

Sunday, June 22, 2003


Hey George, You Put On the Flight Suit a Bit Too Soon

Jim Lobe's story from Inter Press explains:

It was just 45 days ago that President George W Bush, in a campaign-perfect photo-op, landed on the USS Abraham Lincoln off the coast of California, swaggered across the deck in full flight gear, and declared that ''Operation Iraqi Freedom'' had liberated that nation from the evil clutches of former President Saddam Hussein.

But within six weeks, the U.S. Central Command in Baghdad has unleashed a new campaign with a far more ominous name. ''Operation Desert Scorpion'' is designed, in the equally ominous words of Monday's 'Wall Street Journal', ''to avoid a prolonged guerrilla campaign'' that appears to be underway, at least in what is now referred to as ''the Sunni Triangle'' of central Iraq.

It is clear that the 10 weeks of chaos that followed the collapse of Hussein's government in early April have taken a serious toll on U.S. hopes that Iraqis, either out of fear and awe of Washington's military might or out of gratitude, would simply do what they were told by their liberators.

To this point many Americans have been so overjoyed that we won a quick and decisive victory in Iraq that they have not been too concerned that the Administration has failed to find the weapons of mass destruction that were the stated justification for the war.

But what happens if it turns out the war isn't over? What if turns out that we didn't win an easy victory, but are in fact in for a much longer, more difficult war of attrition, in which many more American soldiers will be killed or wounded?

Perhaps then Bush's dressing up in the costume of a military man, strutting around the deck of the Abraham Lincoln, and announcing the war is over will look arrogant, foolish, and shortsighted.

Perhaps it already does.

Saturday, June 21, 2003


President Bush Confesses That He Has Made Americans Less Safe By Invading Iraq

At least this seems to follow from these remarks in his weekly radio address, as reported by Reuters:

President Bush, floating a new explanation for the failure to find banned weapons, said suspected arms sites had been looted as Saddam's government crumbled.

"For more than a decade, Saddam Hussein went to great lengths to hide his weapons from the world. And in the regime's final days, documents and suspected weapons sites were looted and burned," Bush said in his weekly radio address.

One of the reasons why war skeptics like myself opposed the war was that if we attacked Saddam he might give away his weapons of mass destruction to terrorist organizations, or those weapons would be spirited out of Iraq during the chaos and confusion of war. Because the stated reason for the war was to make American more secure from weapons of mass destruction held by rogue states, attacking Saddam might well prove to be counterproductive.

In his eagerness to explain why the weapons of mass destruction have not been found (and thus why the Administration was not misleading the public about their existence) the President has now essentially conceded that the very dangers war skeptics warned about may have occurred-- he is attempting to justify the failure to find weapons of mass destruction on the theory that these weapons may have been stolen during the war.

What I want to know is why isn't this an even bigger problem for the Administration than the possibliity that Saddam no longer had weapons of mass destruction when we attacked him? If the Administration concedes the possibility that the weapons were looted, then it has conceded that in its eagerness to go to war it has made Americans less safe, not more. This is not an accomplisment of which the Administration should be particularly proud. It suggests rather that the Administration belicose policies have backfired. And as Americans continue to die in Iraq, and Afghanistan teeters on the verge of collapse, the Administration's foreign policy failures are mounting day by day.

I only wish someone in Congress would have the courage to point this out.


Is the Bush Administration Courting the Taliban?

Yes, says this report from Asia Times:

Such is the deteriorating security situation in Afghanistan, compounded by the return to the country of a large number of former Afghan communist refugees, that United States and Pakistani intelligence officials have met with Taliban leaders in an effort to devise a political solution to prevent the country from being further ripped apart.

According to a Pakistani jihadi leader who played a role in setting up the communication, the meeting took place recently between representatives of Pakistan's Inter-Services Intelligence (ISI), the US Federal Bureau of Investigation and Taliban leaders at the Pakistan Air Force base of Samungli, near Quetta.

Hey weren't the Taliban evildoers or something? Come to think of it, weren't they the guys who gave al-Qaeda a safe haven-- you remember al-Qaeda, don't you, the guys who bombed the U.S. on 9-11?

When I read this report, I really couldn't believe it. What was the FBI doing in Pakistan? They do domestic surveillance, right? Then I read this report from the Washington Times:

FBI Director Robert Mueller discussed new plans to catch al-Qaida suspects in a recent visit to the Middle East and Pakistan, diplomatic sources told United Press International Thursday.

The plan includes speeding up efforts to catch Osama bin Laden and other al-Qaida leaders believed to be hiding in a tribal zone between Pakistan and Afghanistan, the sources said.

The FBI already has an extensive presence in both the Middle East and South Asia, but is now trying to expand its network with the help of regional intelligence agencies.

If it turns out that Administration officials knew of or authorized a meeting with the Taliban, they will have some serious explaining to do.

Thursday, June 19, 2003


Same Sex Marriage in Canada

A truly revolutionary set of changes is occurring right now in Canada, which will have important repercussions in the United States.

The Canadian Federal Government has announced that it will rewrite national laws recognizing same sex marriages. The Canadian government acted in response to two appellate decisions, the most recent in Ontario, Halpern v. Attorney General of Canada, which held that the national law which defined marriage as being only between a man and a woman violated section 15 of the Canadian Charter of rights and freedoms.

Alberta Premier Ralph Klein has threatened to invoke section 33's notwithstanding clause to prevent same-sex marriage in his province. For those of you unfamiliar with Canadian constitutional law, if a court declares that a national or provincial law violates certain sections of the Charter, the government that passed the law may repass it, declaring that it shall be valid notwithstanding the court decision. (It must repass the law every five years thereafter). The problem is that the law in question was a federal law, and it is not clear that a province may invoke section 33 where a Canadian court holds that a national law violates the Charter. Alberta may have laws on solemnization of marriage by clergy that it might seek to protect through section 33, but this should not affect the right of same sex couples to be married in civil ceremonies.

Several things are interesting about the decision from an American perspective:

First, in Canada the rights and benefits of marriage are a matter of federal law, not state law. In the United States many people (including members of the Supreme Court) have argued that issues of marriage and divorce are inherently local subjects and therefore must be left up to state governments. The Canadian example suggests that there is no inherent reason why this has to be the case, other than tradition.

Second, the Ontario court chose a different path than the Supreme Court of Vermont. In Baker v. State, the Vermont Court held that Vermont's marriage laws violated the common benefits clause of the Vermont Constitution, but the did not strike down the state's marriage laws or order that same-sex couples had the right to marry. Instead, the Court remanded the issue to the Vermont legislature asking them to come up with a statute for same sex couples that had effectively the same benefits as marriage. Vermont passed its civil unions law to comply with the court's decision. By contrast, as a result of Halpern, same sex couples may now apply for marriage licenses in Ontario. This speaks volumes about the relative political strength of the courts with respect to this very sensitive issue in Canada and the United States. The Vermont Supreme Court knew that popular referenda in Hawaii and Alaska had essentially cut short any experimentation with same sex marriage by the courts in those states, and it wanted the change in Vermont's marriage laws to have the legislature's imprimatur. In fact the Vermont legislature stopped short of granting marriage rights to same sex couples, and created an equivalent called civil unions. The Ontario court, by contrast, did not hesitate to order immediate relief; at last report, the Canadian government is planning to redraft the law to allow full same sex marriage, not civil unions.

Third, it's important to recognize that Canadian constitutional law has gone much further than U.S. law on the issue of gay rights. In 1995, The Canadian Supreme Court held that sexual orientation was a ground analogous to classifications based on race and sex, which are protected by section 15 of the Charter (roughly equivalent to the American 14th Amendment's Equal Protection Clause). Of course, the U.S. Supreme Court's decision in the Lawrence case, which is expected any day now, may change the legal landscape in the U.S. considerably, but given the nature of American politics, it is doubtful that it will catch up to what is going on in Canada for some time.

Fourth, the legalization of same sex marriage in Canada will eventually have effects on the debate over same sex marriage in the United States. Canadian marriages are generally recognized in the United States as a matter of comity between nations. (The 1996 Defense of Marriage Act does directly not apply to this question; it concerns recognition of marriages between states. Nevertheless other portions of DOMA suggest that as a matter of some aspects of federal law same sex marriages will not be recognized). Athough many states will probably refuse to recognize Canadian same sex marriages as against the state's public policy, a few states may recognize Canadian same sex marriages even if they do not themselves provide for same sex marriages. Perhaps equally important, the Canadian law will put considerable pressure on states either to recognize various spousal benefits for same sex couples or to edge closer and closer to same sex marriage. Even if the legal effects of the Canadian decision in the United States are uncertain, the decision, and Canada's subsequent legislation recognizing same sex marriages will have enormous symbolic impact.


"Moral Clarity" Revisited-- The Case of Afghanistan

A report from the Council on Foreign Relations and the Asia Society warns that the U.S. is on the brink of losing the peace in Afghanistan due to its neglect of conditions after the overthrow of the Taliban.

"Unless the situation improves, Afghanistan risks sliding back into the anarchy and warlordism that prevailed in the 1990s and helped give rise to the Taliban," [the report] said, referring to the puritanical Islamic group that governed the country of 28 million from 1996 until the 2001 US-led war. . . .

The report's findings were echoed by Pakistan's President, Pervez Musharraf, who called for a huge expansion of the international force in Afghanistan to fill the growing vacuum outside Kabul.

General Musharraf estimated that the force needed to be increased from 14,000 soldiers - almost all of whom are in Kabul - to between 40,000 and 45,000. . . .

There are 5000 troops in Afghanistan under the United Nations banner and 9000 US troops. The British Government has rejected a request from Mr Karzai for more troops.

Before overthrowing the Taliban for harbouring the al-Qaeda network, accused of masterminding the September 11, 2001, terrorist attacks, the US said it would try to help rebuild the nation quickly. . . .

One of the lead authors, Frank Wisner, a former U.S. ambassador to India, said U.S. credibility was on the line and if Washington "did not get it right in Afghanistan it will be a lot harder to convince others to work with us to get it right in Iraq."

Our inability to live up to our promises in Afghanistan should give anyone pause. As Wisner points out, it casts doubt on our bona fides in Iraq. In the alternative, it suggests that the Administration has a particularly short attention span when it comes to its foreign policy committments. It is eager to use force but is unwilling to accept the inevitable consequences of using force-- that is, devoting itself to the expensive, time consuming and altogether less glorious task of cleaning up the mess it creates.

That lack of follow through has serious consequences for the War on Terrorism. If the Bush Administration does not work hard to rebuild Afghanistan (and Iraq), it will not have made our country more secure. Quite the contrary, nothing could set the peoples of the Muslim world more firmly against the United States than a practice of repeatedly invading Muslim states and leaving them in ruins.

One can see lots of things in the Administration's policies toward Afghanistan. I am afraid that moral clarity is not one of them.

Wednesday, June 18, 2003


Bush Stiffarms Dems on Supreme Court

Reuters reports that President Bush has rejected offers to consult with Senate Democrats on the next Supreme Court appointment in order to avoid a trainwreck:

Democrats have urged President Bush to avert a major confirmation battle by consulting with them before making his selections.

"The more we can consult, the more we can meet, the more we can talk about avoiding a major confrontation, the better off the country and the system will be," Senate Democratic Leader Tom Daschle said after meeting with Bush at the White House.

But White House spokesman Ari Fleischer called Daschle's request a "novel new approach to how the Constitution guides the appointment process."

"We always welcome thoughts, but certainly no one wants to suggest that the Constitution be altered," Fleischer told reporters.

This is all posturing, since there's nothing in the Constitution that prevents the President from consulting with members of the Senate before putting a name forward. Presidents have often floated trial ballons and sought advice privately without surrending their right to make the ultimate determination about who they will appoint. For example, President Clinton consulted with the Republican Senate Judiciary Chairman Orrin Hatch before making his nominations of Ruth Bader Ginsburg and Stephen Breyer.

Given that Fleischer's claim that consultation with Senate Democrats would effectively amend the Constitution is just plain silly, what's going on? It's quite simple. Bush is sending signals that he is unwilling to compromise. That is standard operating procedure for this president: He does not believe in compromising unless it becomes clear that he will lose; then he is willing to cut a deal. Knowing this, the best strategy for the Democrats is to respond in kind. They must threaten a very bitter confirmation battle even if neither side wants one.

It should be obvious by now, three years into this Administration, that the President is a bully, and one must always stand up to a bully.

Monday, June 16, 2003


Supreme Court Crunch Time

As Howard Bashman notes, the Supreme Court has ten very important cases left on its docket, "[w]ith one week remaining on the schedule for the announcement of decisions in argued cases." The two most highly publicized cases concern affirmative action and gay rights, but there are also key cases on Internet filters in public libraries, the scope of the commercial speech doctrine, and an important redistricting challenge in Georgia.

Usually the final weeks of a Supreme Court Term are filled with important and memorable cases, but this looks to be the most important and memorable finish in recent years.

Sunday, June 15, 2003


Judicial Appointments and Good Faith: Some Notes About Constitutional Change

Matthew Yglesias argues:

Ideologicially diverse appointments do, however, have another value, namely that they demonstrate the good faith of the nominator. I would be much more inclined to believe, for example, that Bush has nominated Miguel Estrada simply because of his judicial excellence if the Bush nominees taken as a whole demonstrated a wide degree of ideological diversity. Given that, in fact, Bush only seems to nominate conservatives to the bench, I have every reason to believe that ideology rather than excellence was the controlling factor in the Estrada nomination. The point isn't that the bench should be bipartisan for the sake of bipartisanship, but rather that a president who doesn't want his nominees judged on the basis of ideology shouldn't be selecting his nominees on the basis of ideology.

It is rather rare historically that Presidents choose judges primarily on grounds of excellence. There are such examples: I mentioned Hoover's appointment of Cardozo in a previous post. Competence counts for something, to be sure, (especially as a filter that limits the pool of acceptable candidates), but the most common reasons driving judicial appointments historically have to do with party affiliation, demographic characteristics (in the old days, the state or region that a nominee came from, or their religion, and more recently, race, gender and ethnicity), paying off political favors to constituents, or, in case of Justice McReynolds, Wilson's rather obnoxious and irascible Attorney General, kicking the nominee upstairs. However, one of the most important reasons for judicial appointments has been what Sanford Levinson and I have called "partisan entrenchment," the desire to shift the meaning of the Constitution (and federal law generally) in a preferred ideological direction. This process begins with the Midnight Judges Act in 1801, when the Federalist party attempted to stock the courts with its allies (leading to the appointment of Chief Justice John Marshall), and has continued to this day. Partisan entrenchment is not an exceptional or deviant feature of presidential nominations, but rather a fairly standard practice. Some presidents are very interested in shifting or preserving the ideology of the bench, while others (like Eisenhower, as a recent example) care far less about ideology and are mostly interested in political considerations like appealing to the Catholic vote, for example (which is what led to Justice Brennan's appointment.).

Matthew suggests that diverse appointments "demonstrate the good faith of the nominator." To me, this begs a very serious question, which is whether Presidents are acting in bad faith when they try to reshape the courts (and thus the positive law of the Constitution) through a policy of partisan entrenchment. Sandy Levinson and I have argued that partisan entrenchment is the most important source of constitutional change outside of Article V. An interesting question for Matthew to consider is whether Franklin Roosevelt's appointments of Hugo Black, William O. Douglas, Felix Frankfurter, Robert Jackson and Frank Murphy were in bad faith because Roosevelt wanted to change constitutional law to uphold aspects of the New Deal, or whether Johnson's appointments of Thurgood Marshall and Abe Fortas were in bad faith because he wanted to push the country further to the left on key issues like race and poverty. In like fashion, should we say that Richard Nixon's appointments of what he thought at the time were "strict constructionist" judges (Burger, Blackmun, Powell, and Renhquist) or Ronald Reagan's appointments of Sandra Day O'Connor, Antonin Scalia, and Anthony Kennedy were in bad faith because both Nixon and Reagan wanted to take back the federal courts from the wicked Warren Court and its liberalism?

What I am trying to put in issue, in other words, is the central question of whether partisan entrenchment is not a normal and perfectly legitimate form of judicial appointment strategy, and so the accusation of bad faith is inapposite. If politicians of the other party don't like the President's nominees, they can and should speak up and oppose them, something which has happened with considerable frequency in the country's history. Actual up and down votes are only the tip of the iceberg: Most political opposition is successful in that it prevents some people from ever being nominated in the first place.

To be sure, a President can be accused of bad faith if he says that party affiliation and constitutional values have nothing whatsoever to do with his appointments, but I haven't really heard Bush say that. What he and his supporters have said is that they want judges who will uphold the Constitution and the laws and construe them in accordance with the values of the Framers, which, to a conservative Republican, just means cutting back on liberal precedents and pushing forward conservative interpretations of the Constitution. Republicans don't see themselves as putting their personal preferences into the Constitution any more than Democrats do; they see themselves as offering the best interpretation of the Constitution, and thus following the law. Democrats, especially liberal Democrats, will surely disagee, but that's what a political process is for. That's why Democrats in the Senate (and moderate Republicans as well) should resist nominees that are too conservative or whose views suggest that such nominees will move the law in directions that are bad for the country. This is part of the advice and consent power of the Senate, one of the central checks and balances in the constitutional system, a structural guarantee that allows ambition to counter ambition. The Senate acts as a check on the Executive, leading the Executive to nominate people who are politically palatable to most Senators; this check on Executive power usually succeeds in keeping judicial appointments more mainstream than they would otherwise be if the President had an entirely free hand. One of the ways this checking function is signalled is through a public focus on qualifications, but qualifications aren't the only thing that the Senate cares about historically.

The strongly conservative nominations that we see from Bush are not due to his lack of good faith. They arise from the fact that Bush's people care a lot about judgeships and about moving the Constitution more in line with their interpretation of it. The Bush people don't care too much what the Democrats think because they control all three branches of government. The current Democratic filibuster of two judicial nominees (while letting many many more through, I might point out) is not the product of Republican "bad faith" but the product of Democratic political impotence, the inability of Dems to get Bush to compromise in the way that most Presidents usually compromise with leaders of the other party. Because Bush's style is not to compromise except when absolutely necessary, we have the current situation. If he compromised more, and nominated more moderate candidates, you wouldn't see filibusters from the Democrats. Compromise is the way that the system usually works, but we have a President who doesn't feel the need to compromise on much because he has a very disciplined Republican majority in Congress. His compromises are largely with forces inside his own party, which in some ways reminds me of Roosevelt's judicial appointments strategy.

That said, is ideological diversity on the federal bench a good thing? Well, often it is, especially if you are in the minority. But I'm not at all sure that Lyndon Johnson should have appointed a racial conservative to fill Tom Clark's seat in 1967 instead of Thurgood Marshall because the Warren Court was getting too liberal, and Marshall's appointment would push it even further to the left. Nor am I sure that Franlkin Roosevelt should have started to appoint some Lochner era conservatives in 1940 because there were just too many New Dealers on the Supreme Court. Rather, ideological diversity on the federal bench is produced through the give and take of regular elections, in which the parties take turns in the White House, and through political pressure by opposition politicians on the President. Ideological diversity on the federal bench, in short, is a product of democratic elections and the separation of powers. If the country wants to keep returning conservative Republicans to office, we are going to get increasingly conservative judges and Justices over time, and the content of American constitutional law will change accordingly. If you don't like that, there is a pretty obvious solution.

Friday, June 13, 2003


Matthew Yglesias Channels Roman Hruska

The superb (and therefore non-mediocre) Matthew Yglesias suggests that we could do with a little more mediocrity among our judges:

Why should we want brilliant judges? Why not bland mediocrities? It seems to me that the lower federal courts, in particular, positively call for bland mediocrities who will adjudicate cases according to statute and precedent without doing much of anything that's remotely brilliant. Even at the Supreme Court level why should I want a judge who, like Posner and other brilliant legal theorists, has put forward revolutionary new understandings of the law?

Certainly I wouldn't want stupid judges, but you can be a lot less brilliant than Judge Posner before you become stupid. I think a nice, ordinarily smart guy who got good grades in college and law school but who hasn't demonstrated much intellectual creativity or daring or cutting brilliance is exactly what we're looking for. Leave brilliant reconceptualizations to politicians and writers and professors and let the judges just judge away boringly.

Matthew's position has a long and famous history. When Richard Nixon nominated G. Harrold Carswell in 1969 to be a Surpeme Court Justice, many people pointed out Carswell's less than stunning qualifications. Senator Roman Hruska, a conservative politician from Nebraska, attempted to turn this into an asset: "Even if he is mediocre," Hruska contended, "there are a lot of mediocre judges and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there."

Lots of people made fun of Hruska for saying that, and he's gone down in history for being a champion of mediocrity. But Matthew's argument is more serious. What we want on the federal bench above all is good judgment. Good judgment is not the same thing as great legal acuity or legal brilliance. Nevertheless, I would disagree with Matthew that we want boring judges. Some boring judges don't have good judgment, while others do. Judging is not just mechanical application of precedents. It is not simply following the rules laid down. It is an art, and like all arts, is done better by people with talent for it than by people who lack that talent.

Good judging also involves more than the ability to figure out who should win. It also requires the ability to state principled legal conclusions in written form that can be useful to other judges and other actors in the legal system. A judge may recognize that the plaintiff should win in a particular case, but may not be able to articulate the reasons for that conclusion in a way that captures the best legal principle for deciding the case, and that distinguishes other fact situations that seem identical but in fact are not. Judges who cannot perform these tasks well may move the law in the wrong direction. People who have medicore legal minds are usually not as good at articulating the proper grounds for resolution. They often tend to conflate issues or gloss over important distinctions. Law professors tend to think that brilliant legal minds are better at these features of judging than less brilliant legal minds. They are right about that, I think, but there are other important considerations that go into the art of good judging, and as Matthew suggests, we should not assume that law professors are the best at all of the aspects that go into this art.


Bork and Posner

Responding to my suggestion that President Bush should nominate Richard Posner as Chief Justice, Juan Non-Volokh writes:

My question for Balkin is this: If he wants a "truly Supreme Court," should Bork have been confirmed? If not, why is Posner acceptable? (And if the answer is: Posner's less conservative, then what does that tell us?)

Juan is right that Posner is more politically palatable to me than Bork ever was. He is a secular libertarian with a very independent streak, and in the long run, likely to take the law in better directions (from my perspective at any rate) than, say, a dogmatic religious and social conservative would. So Juan is correct that my notion of who is acceptable (given who the President is) cannot be divorced from pragmatic considerations and predictions about what a nominee would likely do once on the bench. In this sense, my criteria of acceptability are multiple, rather than unitary.

But I also think Juan misunderstands the claim I am making about quality. I think he is setting the bar far too low if he thinks that Bork is in the same category as Posner. Posner is not just another smart legal academic. There are plenty of those around. He’s a central figure in several of the most important current debates in legal scholarship all the while holding down a regular job as a federal judge.

Let me be clear: My argument *isn’t* Juan’s argument, that one should support smart academics on the federal bench regardless of their ideology. I don’t believe that for a second. I reject the argument. Very smart academics are a dime a dozen. Some of them will turn out to be good judges, and some of them will turn out to be much less good. My argument is that under the present straitened circumstances, Bush should nominate someone of the very highest quality. As I said in my previous post, “Appointing [Posner] to the bench in the midst of the terrible controversies that have overtaken the judicial appointments process would send a good and healthy message, a little bit like Herbert Hoover's appointment of Benjamin Cardozo near the end of Cardozo's judicial career. Regardless of ideology, this is a person of the highest quality that people can respect.”

Now when I say very highest quality, I mean very highest quality. Lots of people are smart, and have done impressive things. Not many people can be mentioned in the same breath as Cardozo. I certainly don’t think that Bork can. Indeed, I don’t think that either Scalia or Breyer, two former academics currently on the Supreme Court, can either. Neither of them have achievements even close to Posner’s. Almost by definition, there are very few people of the very highest caliber available in any generation. (By the way, I think it is telling that I think of Bork, Scalia, and Breyer as being former academics. I still think of Posner as being an academic, even though he has been on the federal bench for twenty years.)

I actually don’t think that Bork was an appointment of the very highest quality. Bork is a smart fellow. He was a member of my faculty for many years, and my general (albeit obviously biased) estimation is that the Yale Law School does a pretty good job of judging legal talent. But he is simply not in Posner’s league. No one could have said of Bork in 1987 that he was the most important legal thinker of his generation. Unlike Posner, he essentially gave up academic writing when he joined the D.C. Circuit, and when he was at Yale there were plenty of other people in the legal academy as good as or better than him. When President Reagan nominated him Bork was quite famous for a lot of things he did in government service (can you say Saturday Night Massacre?) but in purely academic terms, his reputation rested largely on a single book, the Antitrust Paradox. He also wrote a famous law review article, Neutral Principles and Some First Amendment Problems, published in Indiana Law Review in 1971, which sets out his views on constitutional theory. It is one of the most cited law review articles of all time, in large part because it serves as a convenient foil, a symbol of positions that lots of people disagree with. It is, I’m sorry to say, not really a very good article; it takes a number of untenable positions about freedom of speech, and Bork recanted significant portions of it at his nomination hearings. His later writings after he left the bench have become increasingly shrill and polemical. That may be due in part to the trauma of the appointment battle. Even so, there is no way that one could compare Bork’s intellectual output over the past twenty-five years (or before, for that matter) with Posner’s. Bork has written, I believe, two books since 1987. Posner has written about twenty, on a vast array of different subjects, all the while holding down a full time job on the federal bench, and writing opinions of very high quality. It’s not that Posner is ever so slightly more impressive. The comparison isn’t even close.

My views about Antonin Scalia are very much the same, by the way. Smart man, excellent writer, much smarter than the average judge, but not even the most important legal thinker on the Chicago law faculty when he was nominated to the federal bench. Stephen Breyer did impressive work on regulation, and a great article on intellectual property when he was at Harvard. But he was far from the most significant figure in the American legal academy (or even at the Harvard Law School) when he went on the bench. And while on the First Circuit, he found, like most judges, that being a federal judge was a full time job. What is remarkable about Posner is that he discovered that being a federal judge *didn’t* take up enough of his time. He kept on writing book after book, article after article. And what is even more remarkable is that lots of these books are quite good, even though he argues lots of things in them that just drive me up the wall.

Juan is right when he suggests that my views on who I would find to be an acceptable nominee by a Republican President like George W. Bush are colored by my own politics. But I think he underestimates Posner’s distinctive achievement and contributions by suggesting that Bork– or, for that matter, a whole host of other very smart academics-- would fall into the same category of excellence. There is a very real difference here, and we should acknowledge it.


The First Amendment and Fair Use

Orin Kerr argues that there can't be a First Amendment right to fair use because fair use is an affirmative defense:

As I see it, the problem is that an affirmative defense only works in conjunction with its corresponding cause of action. While the Constitution may require an affirmative defense to liability under a specific cause of action, we don't normally speak of someone having a "right" to do the act just because a particular law would not (even could not) punish it. Consider the insanity defense in criminal law, which, like fair use, is generally treated as an affirmative defense that excuses liability. Some courts have held that the insanity defense is required by the Due Process clause, and that legislative efforts to abolish the insanity defense are unconstitutional. See, e.g., Finger v. State, 27 P.3d 66 (Nev. 2001); State v. Straburg, 110 P. 1020 (Wash 1910). However, we don't talk about having Due Process rights to commit crime while insane. That would be pretty odd, in fact; imagine a defense attorney claiming that a prison sentence violated his client's constitutional rights by incapacitating his client and therefore making it impossible for him to commit crimes that would then be excused by the insanity defense. The trick is that although the Due Process clause may require a state to have an insanity defense, that does not mean that the law has to otherwise allow acts that if committed would fall under the insanity defense. At a conceptual level, I think the right to fair use is similar. It may be that the First Amendment requires a fair use defense to copyright infringement. As I see it, this does not necessarily mean that the First Amendment invalidates any other law (such as the DMCA) that prohibits acts that would constitute (or at least lead to) protected fair use.

With respect, I think Orin is mistaken. Here's why:

Defenses in criminal law can be either justifications for actions or excuses for actions. Insanity and duress are excuses. Necessity or self-defense are justifications. Orin is right that we do not say that a person has a right to commit a crime while insane, but that is because insanity is an excuse, not a justification. The defense of insanity excuses conduct that would otherwise be culpable and therefore illegal. But we do say that people have the right to act in self-defense, or in cases of necessity, because self-defense and necessity are justified whether or not the law makes a certain act (like murder) a crime. The fair use defense is a justification for allowing people to make copies and distribute them in certain cases; it is not an excuse for otherwise wrongful conduct that a person couldn't help.

Why is fair use justified? Because of important policy considerations that intersect with first amendment values. Fair use allows people to engage in important forms of public discourse, and engage in creative transformations and commentaries on existing speech, and in this way it helps promote the growth and spread of knowledge.

A comparison to defamation may help clarify the point further. At common law, people had a privilege of fair comment, which was a defense to an action for defamation. They also had a defense of truth. The defenses of truth and fair comment were justifications, not excuses. The reasons why people are justified in making fair comments and in making true albeit defamatory statements are related to key free speech values. When the Supreme Court constitutionalized the law of defamation in New York Times v. Sullivan and later cases, it created additional constitutional privileges that also promoted free speech values. These privileges are justifications, not excuses; they recognize rights to speak that should exist regardless of the substantive content of defamation law. The defense of fair use in copyright law is much like the defense of fair comment in defamation law. Indeed, the First Amendment argument for limitations on copyright is structurally similar to the First Amendment argument for limitations on causes of action for defamation: If private rights (of reputation or intellectual property) are given too much protection, they will stifle too much valuable speech.

Note that this explanation is consistent with Eldred v. Ashcroft. In Eldred Justice Ginsburg stated that as long as Congress does not interfere with traditional contours of fair use, there is no First Amendment problem with copyright extensions. The First Amendment problem arises if government alters or severely limits the traditional contours of fair use, because fair use is justified activity that promotes free speech values.

This brings me back to the DMCA. The First Amendment argument against the DMCA is actually a little trickier, and that may be what leads Orin to see a potential problem in the argument. The argument is that if (for example) one purchases a DVD, one has a First Amendment right to gather certain information from it and transform it into other information, as long as this is done for otherwise justifiable purposes. The DMCA is unconstitutional because it makes it a crime to circumvent a technology that prevents these justified forms of information retrieval and transformation.

If there is a problem with this First Amendment argument, it is not Orin's objection, that fair use is a defense. The problem comes in proving that there is a First Amendment right to gather and transform information that is protected by a copyright management scheme if the government has legitimate reasons for protecting such schemes from circumvention. The government will defend the DMCA on the ground that the government's purpose is not to prevent fair use but to prevent piracy, and therefore the DMCA poses only an incidental burden on free expression that passes the O'Brien test-- i.e., that the regulation reasonably serves a legitimate government purpose that is unrelated to the supression of free expression. In order to make the First Amendment argument against the DMCA, one must show that the incidental restriction on freedom of speech that the law imposes is too severe. As I have argued in a previous post, Eldred actually helps you make this argument. Because the DMCA alters the traditional contours of fair use by allowing private parties to do a technological end run around traditional fair use doctrines, it abridges what Justice Ginsburg called the “built-in free speech safeguards” of copyright law, and therefore violates the First Amendment.

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