Sunday, June 28, 2009

The Chief Justice Should read Mark Graber

Sandy Levinson

Yesterday, Chief Justice John Roberts attended the Fourth Circuit judicial conference at the Greenbriar, in West Virginia, where he was interviewed by Judge J. Harvie Wilkinson. Among the exchanges was the following:

JUDGE WILKINSON: .... But looking back over the history of the Supreme Court, are there some decisions that stick in your mind, other than [Marbury and Brown], as being of the most monumental consequence? Because it seems to me when people start getting beyond Marbury v. Madison and Brown v. Board of Education, the views about the importance of some of the others diverge. And so I was wondering what cases you might add to that list of really, really landmark cases in the past.

CHIEF JUSTICE ROBERTS: Well, I do think there's one that stands out, and it's a counterpoint. I mean, people talk about the monumental cases, and you assume they're talking about the good ones -- Marbury and Brown. I would say the third most significant case in the court's history was Dred Scott in the sense that while Marbury and Brown are good examples of what to do in very challenging situations and how to handle it, Dred Scott's an example where things went terribly wrong. And you need to look at that and try to figure out why.

And I think some of the reasons are pretty clear. You had, of course, the most divisive issue in our history, leading the country toward civil war, sectionalism overlayed on top of that, the political branches failing to address it in the case of the executive and failing and causing more harm than good in the case of the legislature.
And you had Roger Taney, whose reputation would be quite different if it weren't for this one case, looking at it and saying the other branches aren't working, this issue is threatening to destroy the country, and I'm going to solve it. I'm the only one who can. And he, more or less, took it upon himself to lead the court into a resolution of those issues that were dividing the country. And in a broad way, that really had no basis in a proper reading of the Constitution and in a decision that could have been resolved either way on much narrower grounds, which would have preserved the court above the fray.

I mean, I don't think it could have avoided the Civil War. I'm not suggesting that. But I am suggesting that the court, as an institution, could have been able to play a more effective role as the crisis evolved, and certainly after the Civil War, if it hadn't suffered this self-inflicted wound.

So I think when you look at Marbury for the lessons you can draw about the necessity of, one, developing a broad degree of consensus so the court is speaking as a court, approaching the case in narrow grounds, whether then leaping right away to the broad ones, avoiding politicization. I mean, you have to remember the Democratic Republicans, the Jeffersonians, were just waiting for Marshall to take action on the central issue that would have resulted in a court-packing plan for the Federalists. And then the stature of the court, I think, would have been attacked dramatically, and I don't know if it could have survived.

All of those things are good, but you need to look at Dred Scott and think, well, this is a good example of how not to do it. And that can teach you just as much as the good examples.

JUDGE WILKINSON: But you wouldn't want to draw from that a general rule that the court should steer clear of controversy.

CHIEF JUSTICE ROBERTS: Well, no, not controversy. But I think what Taney did is he used a case that could have been resolved on quite narrow grounds -- and I'm not suggesting it would have resulted in a noble decision, you know, freeing the country from slavery. It might well have resulted in the same decision, but it wouldn't have had the dramatic political impact. Taney went quite beyond what was necessary. It could have been resolved on several different levels and either resulted in relief for Dred Scott or not. But instead, he resolved it on the broadest possible grounds. And as a result, I think, threw the court into the political realm quite self- consciously.
Marshall's decision in Marbury reflected a decision to pull the court back. This was a central issue. The Jeffersonians had the White House, the Jeffersonians had the legislature. They said, our efforts are going to be blocked by the Supreme Court. Here's the crisis issue, they're trying to pack the courts with Federalists. That's the central political issue of the day. And Marshall doesn't even get to it. He pulls back, resolves the case on a much narrower ground.

So no, I mean, there are situations where the court obviously has to resolve, as a legal matter, issues that are of great political significance. But as Marshall did, I think it's important to look and see if you can do that on a narrower legal basis. And as Taney did not, I think it's important to recognize there are going to be huge consequences if you do leap ahead and involve the court in politics.

There are many things that can be said about Dred Scott; indeed, Jack Balkin and I published an article, Thirteen Ways of Looking at Dred Scott. And, of course, there is Mark Graber's magnificent book on Dred Scott and the Problem of Constitutional Evil. The Chief Justice would be well advised to spend some of his summer vacation reading Mark's book, so perhaps he would no so foolishly argue that Taney's opinion, egregious as it is in all sorts of moral dimensions, "really had no basis in a proper reading of the Constitution." What Roberts is doing is simply conveying the "judges on a rampage" view of Dred Scott, which allows us, among other things, to avoid coming to terms with the possibilty that William Lloyd Garrison may have been right, that the Constittion really was a "Covenant with Death and an agreement with Hell" and that "honorable" judges had to live up to the deadly bargain (as Joseph Story, far more honored that Taney, did, with arguably lesser legal warrant, in the just-as-egregious case of Prigg v. Pennsylvania in 1842). Moreover, the reason, as Mark spells out absolutely clearly, that Congress could not do anything to "resolve" the slavery dispute (whatever one thinks that should mean) is that the Constitution, both then and now, builds in an indefensible aspect of parochialism in the mindset of both represenatives and senators inasmuch as every single one of them represents only a relatively small group of territorially-limited constituents (and, as I've argued repeatedly, the electoral college mechanism feeds into this by requiring presidential candidates to run "base"-and "borderline/battleground"-state-centered rather than truly national campaigns). Nor were Taney and his colleagues on a rampage; they were accepting a gilt-edged invitation to try to resolve an issue that the legislature had been exposed as incapable of doing so. This is not to say that Taney was "correct," but only that it is patently "incorrect" to say that his opinion, and the opinions of the concurring justices, were any more legally problematic (or more "political") than, say, John Marshall's opinion in Marbury v. Madison. After all, Roberts seems to recognize the importance, with regard to understanding Marbury, of placing it in its political context, as is true ever more so for the companion case decided a week later, Stuart v. Laird, the all-important accompanying case to Marbury, decided a week later in which the Court simply rolled over and played dead before the purge of the Federalist circuit courts by the Jeffersonians.

It is agreed by everyone that John Roberts is very smart, and he actually majored in history at Harvard College. But, of course, so was John Kennedy, who learned his view of Reconstruction from Paul Buck and therefore put forth Andrew Ross as one of his "profiles in courage" for voting against impeaching Andrew Johnson because he had simply failed to be taught what the battle over impeachment really was about, i.e., the extent to which the War was about "regime change" and not simply keeping the Union intact with the ostensibly defeated Southern whites actually gaining enhanced representation in Congress thanks to the undoing of the 3/5 Compromise. As Akhil Amar argued in his Harvard Law Review essay on Heller, the Court, especially its conservative cohort (all educated at "the very best schools") are egregiously ignorant of the details of our history, especially with regard to the runup to the War and its aftermath in Reconstruction. I am afraid that this comment by Roberts is evidence for Amar's argument. To say that Taney should have exercised more Bickelian "prudence" is simply to say that he should have acted even more as a "politician," and it has nothing to do with the legal merits of Taney's arguments. After all, Bickel developed his theory of the "passive virtues" precisely in order to allow the Court, on patently political grounds, to avoid legal hot potatoes. Consider in this context Naim v Naim, the Virginia intermarriage case. I presume that Roberts would agree with that exercise of (perhaps justified) judicial cowardice in enforcing what the majority almost undoubtedly recognized was "the law" following Brown. I'm curious what he thinks of Loving, and if he supports it, is it only because the country had changed between 1956-1969? But, of course, perhaps there's hope for Roberts on gay- and lesbian-marriage, since, as the New York Times notes, politicos, including, alas, the President of the United States, are increasingly lagging the general culture with regard to support for gay rights. So at some point, Roberts may even be willing to enforce the Constitution against "outliers," when it no longer involves taking any risk.

A final point: We'll find out tomorrow what Roberts did in Ricci. But might not one believe that a person so admiring of Marshallian prudence and dismissive of Taneyesque overreaching will find some way, as with the recent Austin, Texas MUD case, to avoid saying anything of interest beyond the very narrow limits of the given case, rather than trumpet the end of affirmative action?


Another question for Roberts:

I can see how one can argue that Marbury is a form of minimalism and Dred Scott is a form of non-minimalism, but how is Brown v. Board of Education minimalist in any fashion? He sort of drops that out of his discussion pretty quickly.

Good question. The best quick answer is to combine Brown I with the implementation decision the following year, which called only for "all deliberate speed" that left things pretty much as they were in most of the Southern states. Note that Roberts praised the Court's strip search decision for finding the school officials immune from damages, thereby stripping the case (no pun intended) of any practical importance with regard to the victimized young woman.

I had occasion to read Gerald Leonard's "Law and Politics Reconsidered: A New Constitutional History of Dred Scott" recently made available via SSRN that supports Mark Graber's "Dred Scott and the Problem of Consitutional Evil." Leonard was a little too subjective in his support of CJ Taney and dismissal of Justice Curtis' dissent. Through this article, I was led to Paul Finkelman's "Scott v. Sandford: The Court's Most Dreadful Case and How it Changed History," also available via SSRN. While Finkelman cited Graber's 2006 book, he does not dwell upon it as does Leonard. Finkelman's article seemed to me to be more balanced.

In Part I. "Modern Uses of Dred Scott," Finkelman states:

"Because all modern commentators believe Dred Scott was misguided, even pernicious, proponents of original-intent analysis have labored to prove that Dred Scott was not a decision based on original intent. Instead, supporters of orginal-intent analysis argue that Dred Scott resulted from Taney's desire to impose his own personal views on the law. Thus, in 1976 Justice William Rehnquist (later Chief Justice), a strong advocate of original-intent analysis wrote that Dred Scott is '[t]he apogee of the living Constitution doctrine during the nineteenth century ....'

"However, jurists and legal scholars opposed to original-intent analysis point to Dred Scott as a prime example of original intent and use it to illustrate the danger of such legal thinking."

But the Roberts interview excerpts do not indicate (to me) his position in this regard.

(Unfortunately, my printouts of the two articles omit the SSRN cites. But Google will get you there.)

With respect to Brown v. Board of Education, it might be difficult in this day and age for Roberts to disagree with the decision. But Dred Scott I'm sure will continue to generate many more articles, pro and con.

Another example of Dilan's point would be Bush v. Gore, where the Court seems to have gone out of its way to try to resolve a political dispute without letting the political branches do so. While nearly universally criticized within the legal academy, that decision hasn't had anywhere near the impact on the prestige of the Court that Dred Scott had.

I'll just state for the record that I think Don Fehrenbacher has much the better of the argument about Dred Scott, and that I personally find Prof. Graber's argument unconvincing.

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This comment has been removed by the author.

Then there is Roger Taney the person, staying on the Court into his dotage because his fortune had been lost, a lonely and increasingly bitter person since the death of his wife, and a dedicated Jacksonian class warrior on behalf of the rural southern frontier against the commercial northeast. He was perfectly willing to fire a shot as potent as that Ft. Sumter.

Scalia pegged Roberts right as exercising faux restraint. Roberts remains a dedicated ideologue, it was only a faux joke to propose, as he did in the same speech, to give himself a second vote (more votes for decent folk).

NAMUNDO is doubly a trick solution. As has been well expressed elsewhere, the interpretation of the bailout is contra the language and history of the provision. But the second trick is to explain how a provision constitutional at one time becomes unconstitutional at another by virture of a social change. The injury to the dignitary interest of the state is the same. What sort of originalism is this, what sort of faux respect for a coordinate branch? Is it a one-bite policy like official immunity? Or, as Sandy indicates, do cases like City of Berne and FMC v. SC Ports Authority simply refuse to accept the fundamental structural change accomplished by the Civil War Amendments.

An arguably even more egregious inclusion in the "Profiles in Courage" was Lucius Q.C. Lamar, a former slaveholder who did everything he could to sabotage Reconstruction. Yes, it was very nice that he gave a eulogy praising Charles Sumner, but Lamar was a bad apple.

Roberts's speech is just the latest example of the perceived need to claim Brown was correctly decided and Dred Scott was incorrectly decided under one's theory of constitutional interpretation (Posner makes the former point in How Judges Think while attacking J McConnell's originalist defense of Brown).

And query whether Roberts can really be considered a minimalist if he is deliberately laying the precedential foundation to eliminate the exclusionary rule, overturn the Voting Rights Act, and end affirmative action. It's probably too early to tell if this is, in fact, what he is doing; but I suspect that it is. And if that is the case, I think the answer is no, he is not a minimalist.

It is just a damn shame that we're not commenting on that Dante post!

MODEST PROPOSAL: Change the software on this blog to make it easy to ban obnoxious participants and re-open comments.

Because 99% free speech is a beautiful thing.

"And query whether Roberts can really be considered a minimalist if he is deliberately laying the precedential foundation to eliminate the exclusionary rule, overturn the Voting Rights Act, and end affirmative action. It's probably too early to tell if this is, in fact, what he is doing; but I suspect that it is. And if that is the case, I think the answer is no, he is not a minimalist."

Perhaps Roberts, who is relatively young, is a MOSAICIST.

By the Bybee, NBC's Chuck Todd's description of the Ricci 5-4 majority decision as legislating from the bench was most refreshing.

what mattski said...

as to Chuck Todd's comment ... sounds like "common law" or dare I say "appellate courts making policy."

Where did I hear that before?

"But the second trick is to explain how a provision constitutional at one time becomes unconstitutional at another by virture of a social change. The injury to the dignitary interest of the state is the same. What sort of originalism is this, what sort of faux respect for a coordinate branch?"

Not much of a trick, it seems to me. If the 15th Amendment only prohibits intentional discrimination in voting, as the Court said about 30 years ago in Mobile v. Bolden (and I suspect your disagreement, and that of many others, is really with that holding), the enforcement clause of that amendment only gives Congress the power to enforce the ban on intentional discrimination, in which enforcement, of course, it may overreach to an extent and ban practices that merely have disparate effects on minorities - as, especially back in 1965, if the Department of Justice had had to prove discriminatory intent every time it wanted to deny preclearance, it wouldn't have gotten very far. But today, the claim is, there isn't much intentional discrimination left, and most of what Section 5 bans are small retrogressive changes that aren't discriminatory at all. If the Constitution gives Congress the power to enforce a ban of A, it's allowed to also ban some B (retrogressive changes that aren't clearly intentionally discriminatory) if it's reasonable to suspect B of being A (as it was when the VRA was first enacted), but if A becomes quite rare, Congress can't keep banning B.

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It's as if Balkinization is in the Summer Doldrums as SCOTUS goes on vacation after a year that the LATimes describes in its editorial today (7/5/09):

The Supreme Court in summation
The Supreme Court term just ended was marked by close rulings but also surprising consensus.
July 5, 2009"

This sojourn will be interrupted with the Senate Judiciary Committee hearings on the nomination of Judge Sotomayor that may produce fireworks or duds. The Obama/Biden Administration has most of the burners on its stove going as it tries to mend what happened from 1/20/01 to 1/20/09, a real big mess that continues to unfold somewhat like the tip of the iceberg that global warming exposes more and more. The opposition party may be so weakened that it may become a suicide bomber politically. Hopefully Obama/Biden will keep the Democratic Party from excesses that might be tempting now that it is in power. We all have to pull together to come out of this mess. These are sad times, often depressing. But the celebration of the Fourth of July should have reminded all of us that what we have here in America is worthwhile and worth preserving, making it better. I personally take comfort every time I hear "America the Beautiful" sung, especially Ray Charles' rendition. But what I am most looking forward to is openness and accountability. We must demand it. A first step?

I see that Sandy Levinson is moderating a discussion at the Aspen Ideas Festival, including O'Connor and Breyer, that is airing on C-SPAN.

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