Wednesday, January 11, 2006

The Constitutional Catechism


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

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

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

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

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

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

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

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

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

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


Fascinating essay (I'm blogging it shortly). Makes me curious about the fact that nobody's asked Alito about Lawrence v. Texas and what that implies about mainstream acceptance...

Bork also was the underling willing to commit the Saturday Night Massacre, no?

Seems to me this only takes the temperature of the Senate, and the temperature reading is 31.99999 degrees. It's not like openly stating that Roe ought to be overturned at the earliest possible opportunity would cause a nominee to be massively rejected by the Senate. On the contrary, even a couple of seats changing hands could open the door for such a nominee.

Seems like a lot of significance to invest in which way a near 50-50 ballance tilts at the moment.

From the Roberts hearings, it seems that the catechism includes only part of the New Deal jurisprudence. Roberts rejected Lochner, but refused to embrace Wickard.

Excellent analysis. I watched the hearings all day yesterday and noticed this too. For anyone who failed to notice it on their own, NY Senator Chuck Schumer also pointed it out. He took Alito to task for his inconsistencies when he refused to discuss the Roe decision because it would likely come before the court, but had no problem discussing other cases, such as commerce clause cases which constantly come before the court. It does say a lot about our society. I linked to your article on my blog.

I wonder what jurisprudential obligation John Roberts and Samuel Alito will have to consider the de facto constraits they exhibited in their own hearing testimony if and when they are called upon to reconsider Roe within an analytical framework of stare decisis.

Among the many elements cited by some jurists and authorities as factors in stare decisis are whether there is substantial reliance upon the precedent at issue, and whether it is still contested. Both these justices (I assume Alito's confirmation) must be aware, if they search their consciences, that it would have been considered beyond the pale for them to admit they believed that Roe was wrongly decided as an original matter. Such an admission would have been treated akin to admitting that one had advocated cannibalism, or denied the Holocaust.

I do note that Alito, in his many exchanges with Schumer et al, at least refused to concede that the matter may be settled. But he would not say forthrightly that his 1985 views had merit.

I suggest that the confirmation process itself thus has lent some more weight to the Roe precedent. (Note: I say this as someone who is anti-Roe, and still wishes that the precedent might be overturned.)

Brilliant post. I wish it were true, though, that Brown v. Board had entered the catechism by 1964. I went to college from 1967-71, and my conservative professors seemed to take it for granted that the reasoning of Brown was indefensible, however much you might like the result. I had lunch with one of those professors, Walter Berns, c. 1985. His position had advanced to the point where he considered Brown I legitimate, but not Brown II! (Roughly speaking, he recognized the existence of the right, but not the remedy.)

Anyway, Bork's statement of the catechism on Brown, if I remember correctly, goes like this: "No constitutional jurisprudence under which the result in Brown cannot be justified, is valid." Perhaps wrongly, I have always understood this to mean: "But the construction of such a jurisprudence is beyond my poor powers."

Finally, let's not forget that Alito can, and will, do just as he pleases when confirmed. All his statements about the limits of executive power, for example, were tautological enough to be consistent with any result A. may reach in any case.

This post ignores the risk-averse nature of a republican nominee going before a republican Senate. Perhaps the content of the catechism would be different if both sides were invested in its meaning; as it stands, it is only the democrats who have something to gain by stating the importance of certain cases, such as Roe.

The Senate Confirmation hearings are just political theater. They only serve the purpose of finding out the nominee's acumen for being obsequious to the Senators who support his nomination, and playing "hide the ball" from Senators who want to learn anything meaningful about the nominee's judicial philosophy. This is the true test of a Supreme Court nominee. If he or she cannot handle this ritual with the necesarry aplomb and intellectual alacrity, then he or she is not qualified to serve on the nation's highest court.

Alito did just fine.

Love the catechism metaphor - especially for the fifth Catholic Justice’s confirmation hearings. Recitation is the way the catechism was classically taught - and Alito presumably learned the full drill as a child. He certainly recited the catechism reliably this past week.

By declaring that he would follow the law, not his own agenda, Judge Alito not only avoided disqualification on the catechetical grounds Prof. Balkin explicates. But he also sidestepped the problem of whether he agreed with the demands of conservatives in the Roman Catholic hierarchy, who wounded John Kerry with demands that pro-choice Catholic politicians be barred from taking Communion.

This was particularly fortunate for Alito who by this method avoided questioning on the nettlesome problems of the delegitimization of the pro-choice view by conservative members of the Church hierarchy. For Scalito (hasn’t he shown the nickname is apt?) the controversy came dangerously close. It would have been interesting to hear whether Alito agreed with the Archbishop of Newark, John J, Myers’ rebuke of the Diocesan Seton Hall University’s Law School for allowing Sandra Day O’Connor to come to the school to present the annual Sandra Day O’Connor Award to Maryanne Trump Barry. Alito’s Third Circuit colleague Barry, like O’Connor, is guilty of adhering to Roe v. Wade.

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