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August 18, 2007

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One would have to say: Judges create law in legal systems based on precedence, i.e. the Anglo-Saxon tradition.
Other philosophies (e.g. as applied in Germany) explicitly deny precedents a binding power. A judge should of course be aware of precedents over here too but he is not bound by them. I think that is one reason why the judiciary over here is almost free of open politisation. On the other hand we had no Busheviks in power for some time and Stoiber failed (thank whoever).

"Nominations should be about politics because judging is inherently and necessarily political. You simply can’t avoid it, so we should stop trying to."

I only agree to this statement because it is true *to some degree*. But for the most part judging ought not be about politics and we absolutely should try to resist it. Otherwise we wouldn't need to bother with legislatures.

"When you think about it though, this distinction between “creating law” and “interpreting law” doesn’t make much sense. For all practical purposes, the courts’ interpretations create law – that is, they add words to statutes and constitutions that aren’t there."

This isn't true either. The distinction is supposed to be about being both bound by and directed by the limits of the interpreted text (either statute or Constitution). This becomes evident when you think about what would happen when you "add words to statutes and constitutions that aren't there." Think about empowering judges only to add the word "NOT" anywhere they wanted to any text.

Now I would presume that you want to limit that somehow. Certain words can be added, certain ones can't.

I've never seen (and I realize that many of the 100+ comment discussions on this come before your time) a reliable non-textualist method for determining which ones can be added and which ones can't.

Liberals want to have a relatively free range for changing what they want, but want to pretend that method of analysis makes for bedrock protections for things they like. If you like habeas protections, you ought not pretend that Constitution outlaws the death penalty.

The value of precedent on texts in Constitutional or statutory analysis is so that you don't have to redo the work from scratch every time.

"Hell, few nominees in history were better qualified than John Roberts."

Are you suggesting here that John Roberts is beyond the pale for acceptable Supreme Court Justices? On what basis? He is much closer to the American mainstream of opinion than Brennan or Marshall ever were. He is at least as faithful to the Constitution. Why is he beyond the pale?

I've never seen (and I realize that many of the 100+ comment discussions on this come before your time) a reliable non-textualist method for determining which ones can be added and which ones can't.

Fixed.

on the roberts point -- what i was saying is that he was very qualified to be a justice. i opposed him largely b/c of his youthful obsession with race and b/c of his deference to executive authority. i may be using "political" too broadly when I should say philosophical at times -- but i opposed him not b/c he wasn't qualified but b/c of his stances.

as for brennan and marshall, i think what you say may be true using today as a baseline, but not 1968. sadly, i was born too late. :)

Sebastian: "He is much closer to the American mainstream of opinion than Brennan or Marshall ever were."

So was Henry Billings Brown. You're suggesting that Constitutional freedoms and rights should be subject to popular opinion? That unpopular decisions are less valid or correct? That the intent of the Constituion is for majority opinion to rule over minority opinion simply because it is the majority?

Or what's your point?

It is often argued, explicitly or implicitly, that the Senate should judge judicial nominees only on their professional qualifications, while it is understood that their nomination by the President is partially political.

The Constitution says only that the appointees should be nominated by the President with the advise and consent of the Senate. It is unlikely that the Founding Fathers assumed that any of this would be non-political - politics in the 18th century was bitterly partisan. Rather, they hoped that the politics of the Senate would often balance those of the President.

"as for brennan and marshall, i think what you say may be true using today as a baseline, but not 1968. sadly, i was born too late. :)"

I'm not quite following this, publius: are you saying you believe there was less popular racism, and hostility towards "welfare bums," and communists, and criminals -- the sorts of people whom Brennan and Marshall cared about the rights of -- circa 1968 than today?

That "sadly," you missed those good times? I'm really not getting what you mean, because I'm having trouble imagining you could mean that.

Could you perhaps please kindly take pity on my lack of comprehension, and explain a bit further?

"It is unlikely that the Founding Fathers assumed that any of this would be non-political - politics in the 18th century was bitterly partisan."

This is utterly wrong: there were no political parties in existence in the U.S. when the Constitution was written, and no parties were anticipated.

Their intent was that "factionalism" was to be avoided.

Partisan:

1. A fervent, sometimes militant supporter or proponent of a party, cause, faction, person, or idea.
When parties do not exist, partisanship is impossible.

Obviously, that parties did immediately develop, doesn't mean they traveled back in time to affect the intent of the writers of the Constitution.

The claim couldn't be more false and wrong.

I suspect that the Post's actual position isn't that political considerations are illegitimate, nor that judges' political/philosophical orientations are irrelevant. (It's hard to imagine any sane person believing either of those things.)

I suspect, if pressed, that the Post would say that their Constitutional philosophy of judicial appointments is something like this: The President has the right to take political considerations into account, but Congress doesn't. Congress plays no role in evaluating a judge's point of view, but exists solely as a safety valve so that we don't get judges who are certifiably insane or incapable of carrying out their duties.

I don't think there's any justification for that point of view in the text of the Constitution, but it does seem to be what the Washington press corps believes. In general, I think that's one of the Washington press corps's biggest failings: they're far too friendly to expansive claims of Presidential power.

Personally, I'm not happy with the term 'political' here, especially if it's supposed to cover all the territory left over when you exclude "qualifications". I want, first of all, a judge who is committed to interpreting the Constitution with real intellectual honesty, where (imho) this does not in any way require (and may actually preclude) holding one of the various originalisms. (Not counting Balkin's new variant.) "Qualifications" won't get you this, but it's not "politics" either. (And if anyone asks: how can you tell whether someone is doing this, other than politically?, I reply: you can tell an intellectually honest person who doesn't agree with you from a sleazeball who's just out to make a case come out his way.)

Then, I'd ask for judiciousness, where this means: given several potential interpretations for which a reasonable case could be made, give me the one who has really good judgment about which fits best with the Constitution/statute as a whole. Again, not political.

Then, I would want to know that there were some views this person did not hold, partly because I do not myself regard them as defensible, and partly because even if I'm wrong, of the many defensible interpretive lines, I don't want this one. E.g., if someone thought that Loving was incorrectly decided, or the birth control decision, or flatly disagreed with the 1937 rulings, that would be a big problem for me, if I were a Senator. I mean, I really, really would not want to vote for someone who would rule that miscegenation laws are constitutional.

The last is political, I think, though not purely political. But I don't think the first two are. But they certainly aren't just about "qualifications", either.

In the last para. of my last comment, when I say "partly because I do not myself regard them as defensible" (and later), I am using 'defensible' to mean: defensible as Constitutional interpretations', not 'defensible as political positions.'

Gary, the definition of "partisan" you quoted does not require the existence of parties, so I don't see how the sentence after it follows logically.

I'd say it would be difficult to find more highly qualified judges than in Germany in the first half of the 20th century. That does not change the fact that they were also notoriously shortsighted on one eye (that changed not before the 60ies).

My impression concerning the both sides in the US is that one side is mainly interested in the judges to be qualified and otherwise neutral, while the other side is mainly interested in judges that will decide in a way that pleases them independent of the spirit or letter of the law (or the actual qualification). At the moment I would identify the latter position mainly with the right.
To take an extreme example: Ann Coulter would be formally qualified to become a federal judge but I doubt that anyone here* (including Sebastian, OCSteve or Brett) would consider her a (politically or otherwise) acceptable choice.
But I am pretty sure that many on the right would drool about that possibility, if they could get away with it.
Both left and right claim that they are on the defense as far as judges are concerned but I'd consider the "left" claim to be far more valid at the moment.
Had the GOP a filibuster-proof majority in the senate, then we would see the real nutcases proposed, I'd doubt the same in case of a similar Dem majority (and WH)

Ceterum censeo: Precedence based legal systems suck by design.

*Ok, maybe johnt

"Gary, the definition of 'partisan' you quoted does not require the existence of parties, so I don't see how the sentence after it follows logically."

Because we're solely discussing the "political parties" usage of "partisan," of course.

Why would the other usages be in any way relevant? Are we discussing guerilla wars?

I didn't bother to discuss other usages, because I wasn't writing a random essay on all the meanings of "partisan." Publius didn't write a post about any other meaning of "partisan." (At least, it isn't this post and ensuing discussion.)

Gary, Skeptonomist was the first person to use the word "partisan", and you were the first to mention political parties. Skeptonomist's use of the term can fit the definition you quoted without requiring time-traveling political parties. Publius talks about "political preferences", which is not the same as party affiliation. People in the 18th century did have different political preferences, didn't they?

The question was, whether "partisan" would be a useful term in absence of political parties. Since the definition allowed for other things (like ideas) this seems relevant in the context.
Your protest would be valid, if someone asked about polearms?

Liberals want to have a relatively free range for changing what they want,

Uh, it's not "liberals" who have read "another state" in the 11th Amendment to read "your own state," held that the 5th Amendment was understood as prohibiting all racial classifications in 1791, and so on and so on. The idea that conservatives simply mechanically apply the law while liberals "create" it is simply farcical.

Welcome, Scott!

I agree completely with this post. Pretending that ideology does not affect judges is foolish.

I'm really tired of conservative posturing about how they only want judges to interpret the law, etc., and are only interested in "judicial philosophy." Political views, broadly defined, play a huge part in the the President's nominations. Let's admit that and then recognize that the Senate has just as much right to consider the nominees' views as the President.

Then we can stop having idiotic hearings where the nominee strives to say nothing at all about anything that matters. Ask questions and insist that they be answered before a vote is taken. The pious ritual we have now, "Gee, I can't talk about that because it might come up," is silly.

I don't think it's true that any faction in US politics is primarily interested in having "the judges to be qualified and otherwise neutral". Certainly not the faction of the US right wing that controls today's executive branch.

Nobody is seriously arguing that the Bush administration is choosing judges without paying attention to their points of view, are they? Surely nobody thinks its a coincidence that Bush's judicial appointees are ruling in a way that pleases the Bush administration. It seems completely obvious to me that the Bush administration is deeply concerned with the ideology of all political appointees, judges included.

And while the Bush administration is unusually extreme in its quest for ideological conformance, it also isn't alone in this. The US courts would be a very different place if Presidents just nominated the most qualified lawyers to be judges, irrespective of everything other than technical skill.

Presidents tend not to talk about anything in public other than their nominees' legal ability, but surely there isn't anybody in the world who thinks that's all a President considers. Is there?

It's not clear to me at the moment if I did or did not, but if I misread or misunderstood skeptonomist, than I certainly apologize.

hilzoy -- good points, but to push you a bit on this, aren't the first two qualities inextricably tied to politics (or at least to policy preferences).

For instance, you cite intellectual honesty (with the good example being deciding a case at odds with your philosophy). That's true, but sometimes that's politics at a more abstract level. For instance, if you take originalism seriously, it requires reaching anti-"conservative" results at times. but by adopting that particular methodology, you're still winning far more than you're forcing yourself to lose. again, there is something to be said for sticking to a methodology (which is what Thomas does far more often than Scalia). But, remember that the methodology can itself be a stacked deck.

also, judiciousness. again, whatever you mean by "best" requires some pre-existing value judgment. again, maybe politics isn't the right word, but what one judge considers best may be subject, a product of one's culture, etc.

All that said, I probably overstated things a bit. The point was that politics should matter in judicial nominations, not just qualifications. That's b/c all judges (particularly federal appellate judges) have to make "political/policy preference" judgments.

I didn't mean to say that ALL judging is 100% politics (again, there isn't an infinite range of meanings). But a lot of judging is -- particularly constitutional law.

subjective not "subject"

I didn't mean to say that ALL judging is 100% politics (again, there isn't an infinite range of meanings). But a lot of judging is -- particularly constitutional law.

Right--I don't think one needs to believe that "all law is politics" to believe that, by the time cases get to federal appeals court, cases virtually always 1)present questions that have multiple plausible answers, and 2)how judges, even those working in good faith answer these questions will largely (although not perfectly) map on to "political" preferences.

Publius: "as for brennan and marshall, i think what you say may be true using today as a baseline, but not 1968."

This doesn't make any sense to me. Using 1968 as a baseline for Brennan and Marshall they were radically out of step from the mainstream of politics. Using 2006 as a baseline for Roberts he is not radically out of step from the mainstream of politics. In fact he isn't out of step with it at all--as much as that may disturb you.

Gary,"You're suggesting that Constitutional freedoms and rights should be subject to popular opinion? That unpopular decisions are less valid or correct? That the intent of the Constituion is for majority opinion to rule over minority opinion simply because it is the majority?"

Uh no. I'm suggesting that judges shouldn't be political. Publius is the one suggesting that it right and proper for them to be political. I'm pointing out that if you accept that (in my opinion atrocious) point of view you still don't get to a place where Brennan and Marshall are ok and Roberts is not. You get to a place where pretty much anyone who gets on to the Supreme Court is ok, because all the decisions are political.

You get to the point where you can't really argue that Supreme Court is wrong in any of its decisions in an independent of politics way.

I am not making that argument. I'm saying that if you make that argument, you undercut your ability to make lots of arguments that normally make their way into such discussions.

Scott, it is liberals who are saying that the Constitution forbids executing a 17 year old who plans, lies in wait and executes a murder despite directly on point Supreme Court rulings of less than 20 years vintage? Right? Or is that some other classification? Isn't it liberal judges who say that terms forbiding classification by race actually require it? Or is that somebody else?

Sebastian, if Scott is saying that both liberals and conservatives are guilty of the behavior you find offensive, then pointing out examples of liberals doing it doesn't refute him. You need to explain why conservatives' creative interpretations aren't really creative interpretations or are otherwise okay.

Sebastian: "Using 1968 as a baseline for Brennan and Marshall they were radically out of step from the mainstream of politics."

I don't agree with that.

But I'm not sure it make sense to speak of a single "mainstream," although I believe I understand what you mean by it, and therefore the perfectly obvious argument that it exists.

But I observe that both these things are true: there were plenty of opinions/judgments in the philosophy and legal opinions written by both Justice Thurgood Marshall and Justice William Brennan that are describable as highly unpopular with many at the time, or that were objected to, or disagreed with, by many.

But at the same time those same opinions were highly popular with, agreed with, and strongly supported, by many.

Both streams of thought were part of the "mainstream" of America at the time, by almost any measure that occurs to me, albeit in different balances in different pockets of the population.

To be clear, these were largely distinctions between "liberal" Americans -- who overwhelmingly elected Lyndon Johnson after barely electing John F. Kennedy -- but there was as clear an ideological choice as there ever was between Goldwater and Johnson, and America gave the liberal a landslide in 1964 -- while still maintaining a huge conservative portion of the population -- and "conservative" Americans.

This was also, of course, utterly entangled with race.

And in 1964 and 1968, while there were certainly non-racist conservatives, and there were certainly liberals with confused attitudes about race, and there were still plenty of racist Democrats, it has to be noted that the majority of racists at the time were for the Republicans nationally (or, in '68, George Wallace temporarily), and the majority of people fighting for desegration were liberals. This is both tangential and essential, because many -- though by no means all -- of the conflicts that aroused the most hostility at Marshall and Brennan were over race, or race-related issue (which "welfare" and crime were entangled with by demagogic racist politicians of both parties).

So to claim that Brennan or Marshall were "radically out of step from the mainstream of politics" in 1968 is no more true than saying the same of Justices Thomas and Alito today: it's true for a large segment of the population, but untrue for another large segment of the population, and the balance differences in various pockets. There was a liberal mainstream, and a conservative mainstream, then, and now. This really shouldn't be news.

Gary,"You're suggesting that Constitutional freedoms and rights should be subject to popular opinion? That unpopular decisions are less valid or correct? That the intent of the Constituion is for majority opinion to rule over minority opinion simply because it is the majority?"

Uh no. I'm suggesting that judges shouldn't be political.

You're insisting, so far, that Chief Justice John Roberts is "much closer to the American mainstream of opinion than Brennan or Marshall ever were": that seems to be attempting to make a point beyond "judges shouldn't be political," as the two points actually seem to have nothing to do with each other. What was your point in asserting that Roberts is "much closer to the American mainstream of opinion than Brennan or Marshall ever were": setting aside for a moment the truth or falsity of it, what do you believe that point to demonstrate or prove?

"Isn't it liberal judges who say that terms forbiding classification by race actually require it?"

What "terms"?

I agree with the post; I've spent a lot of time defending Southwick against the slurs (racist! homophobe!) leveled against him, but he is undoubtedly very smart and very conservative. N.b. that I'm from Mississippi and am pretty familiar with his judicial work.

The confirmation process would be a lot cleaner if, instead of the "gotcha!" game, judicial politics were discussed fairly. But, the Senate is scarcely an elite body of wise elders to do such a thing.

Wow. I don't know quite how far you are going with what you are saying, but it still worries me incredibly. I don't believe for a minute that you think that all judging is about politics. There must still be room for 'competent' and 'incompetent' judges, regardless of politics. The question is how much of judging is about good v bad judgements, and how much is about politics. You suggest that there is necessarily a lot of politics in judging. I disagree.

Here in England, the situation is very different from in the US. The judiciary really is independent from the (admittedly fused) legislature and executive. Accusations of political bias are rare and taken seriously, and the judges looked down upon. The vast majority of judging is done on an intellectual level, leaving policy jusdgements to the legislature. For this a number of interpretive doctrines have grown up which are generally applied well, with deviations harshly criticised. Legislative intent is crucial with statute, including looking at the harm meant to be avoided. Where there is no real answer and the court really does have to create new law, the general way forward is not to upset the understood balance, leaving it to Parliament to make the assessment of whether it would be a good idea. Again, judges are harshly criticised when they do otherwise.

I think that most of the politicisation in the US is due to reasons bound up with the country and its history. I think it is one problem of having a Constitution which is incredibly difficult to change - leaving it to the legislators becomes increasingly difficult to justify when they can have a lot of trouble making decisions for themselves, forcing judges to adapt the law to stop the country stagnating. In many ways, this forces judges into a position which they really should not have to face - they are and should be unelected, so that they can be impartial, but are now deciding matters of policy. This, I think, creates a very dangerous situation.

Now I'm sure that you could argue that this situation is not going to go away, and so Americans will have to live with this politicisation and deal with it as you suggest. But I can't help feeling that better would be to find ways that judges can remain impartial, creating non-partisan interpretive methods and criticising judges (of all sides) who bring politics into their judging.

Gary, the Brennan and Marshall opinions on the death penalty for example have the dubious distinction of being dramatically out of step with the mainstream of their time, clearly Constitutionally wrong, and incredibly justify themselves with an appeal to the changing public opinion--which was never on their side.

"The judiciary really is independent from the (admittedly fused) legislature and executive."

I'm not clear that the Lords of Appeal in Ordinary would agree. Is the House of Lords independent from Parliament of the United Kingdom, then? (Not independent from Commons, of course, but from Parliament.) If not, then how is your statement true?

"Gary, the Brennan and Marshall opinions on the death penalty for example have the dubious distinction of being dramatically out of step with the mainstream of their time,"

Again, I simply can't agree. Much of the population supported them. It was no more or less "out of step with the mainstream of their time" than they are today, or than electing either Al Gore or George W. Bush in 2000 would have been, or than electing John Kerry or G. W. Bush in 2004 was.

Saying otherwise simply isn't true by any measure I'm familiar with, and if you wish to defend the opposite proposition, I would ask you to please explain what metric you have in mind to support it.

"...clearly Constitutionally wrong,"

Clearly, people on both side of the "mainstream" disagree. If you simply wish to beg the question, further exchange isn't apt to be helpful.

"...and incredibly justify themselves with an appeal to the changing public opinion--which was never on their side."

I think your pronouns have gotten confused here over whether they refer to Brennan and Marshall, or their decisions, but again, you seem to be insisting that only that opinion which you agree with existed in the country's mainstream. That's complete nonsense. I know you're younger than me, and didn't live through those years; maybe you're just misinformed? I don't know. But it isn't at all true.

Seb - i don't think "mainstream" matters (I never brought this up, i think). frankly, i don't care if roberts is mainstream or not -- i was just saying that i opposed him for largely political reasons. he's a super-sharp guy, and eminently qualified. and all his decisions will be professional. but i disagree with the way he exercises his discretion. whether or not he or brennan are in the mainstream is a different topic.

also, the idea that conservatives are doing something different when they choose among plausible interpretations than liberals when they do the same thing just doesn't hold up at all. it's the same thing. conservatives have the bad habit of sticking an "interpretation" label on what they do (indeed, it's part of the Federalist Society mission statemetn as i recall).

more substantively, you raise an important point by saying that my argument means that any SCOTUS decision is ok. that's not what i'm saying at all. i think you're conflating "is" and "ought." i'm describing (descriptively or positively) the way i think courts make decisions (again, not in all cases, but many -- as i clarified in the comments). you're treating it as a NORMATIVE justification for deciding cases any way you want to.

Where the "should" comes in for me is (1) recognizing that a lot of decisions come down to policy preferences; and (2) we should healthy political debates in light of this inevitability.

In other words, of course there are bad ways to decide decisions (e.g., "my uncle said vote for plaintiff."). but in supreme court cases, there are generally plausible ways to make decisions that are consistent with legal professional standards. in choosing among those plausible options, people often choose politics. in many constitutional cases, this is INEVITABLE in light of the vague text.

Accordingly, political debates are a good thing.

Pejar -- good points. And I tried to scale down a bit what I was saying in the comments (I hope to follow this up later with another post).

But a few thoughts. First, it is undeniably true that American courts do policy. Constitutional law, when you rip away the mask, is essentially policymaking. It's 100% to 0%, but there's a lot of "policy" underneath what we call "constitutional law."

Accordingly, if an unelected court gets to set national policy (very improtant national policy), then politics must play a role in deciding those judges.

Now maybe judges in the UK are different or have different responsibilities. But if they start taking it upon themselves to do things that the Supreme Court does, then it's anti-democratic and borderline illegitimate not to let politics play a role in deciding the jduges.

I'm still hoping you'll respond to my 5:44 PM query, publius; I was completely confused by what you said. Any chance?

"whether or not he or brennan are in the mainstream is a different topic."

This is why I've twice asked Sebastian if he might explain what being more in the mainstream, i.e., more "popular," has to do with Constitutional rights. He did give a hint of an indication in his introduction of the death penalty cases, but not more than that. Most decisions do not, after all, rely on popular views, although, to be sure, "contemporary standards" as a relevant measure does come up in some matters, such as judging what's currently accepted to be "cruel and unusual."

I'm not at all convinced that judging has to be political, as a matter of logic or human capacity, but considering how hostile to the ambitions of both major parties honest, non-political judges would be, (Both parties have gotten addicted to powers usurped in violation of the Constitution.) it's pretty much inevitable.

So have at it when it comes to supporting or opposing judges on explicitly political grounds. What really offends me is this pretense we see so often of pretending that political opposition to a judge is grounded in concerns about their competence. It's annoyingly dishonest.

ok gary -- i'll try. my point was that both elite and public opinion was well to the left of today's. I'm talking redistribution and faith in government programs in particular. I mean, look at the type of laws Nixon signed on to (e-mental law, aff. action, etc.). also, i'd say that religion on many campuses was something to hide in 1970. that's much different than today -- I think society is more publicly religious in 2007 than they were in 1967.

Now, I understand that Nixon bombed Cambodia, was a bad person, etc., or whatever else you want throw out there to argue that I know nothing from the years 1945-1991, but there it is.

What really offends me is this pretense we see so often of pretending that political opposition to a judge is grounded in concerns about their competence. It's annoyingly dishonest.

Does it also annoy you when patently political support for a judge is disguised by claims about qualifications, philosophy, etc.?

I'm not clear that the Lords of Appeal in Ordinary would agree. Is the House of Lords independent from Parliament of the United Kingdom, then? (Not independent from Commons, of course, but from Parliament.) If not, then how is your statement true?

Were the non-judicial lords to vote on a judicial matter, it would be on par with the event of Her Majesty refusing the Royal Assent. The body would be asserting archaic powers, and the body would lose even the form of said archaic powers in the time it takes for the Commons to troop through the lobbies. (If they were lucky -- if they were unlucky, in the time it takes for an axe to pass through a neck.)

Bagehot's English Constitution calls the ability of the Lords to vote on judicial matters ``sleepy theory; it is not so by living fact''.

Both parties have gotten addicted to powers usurped in violation of the Constitution.

So, on one thread Brett believes that wanton violations of a criminal defendant's Constitutional rights should not propertly be grounds for either of dismissal of charges or a "not guilty" verdict. On another, he's apparently concerned about extraconstitutional exercises power. Could you maybe please make up your mind?

Seb, when you can explain to me how your cherished "textualists" were apparently able to get away with adding the words "except Negros" to the Constitution for 150 years, I'll take your arguments here a bit more seriously.

I don't think one needs to believe that "all law is politics" to believe that, by the time cases get to federal appeals court, cases virtually always 1)present questions that have multiple plausible answers, and 2)how judges, even those working in good faith answer these questions will largely (although not perfectly) map on to "political" preferences.

1. This position would be roughly true only of the Supreme Court. The Supreme Court has discretionary review, and most of its cases are drawn from a pool of circuit splits, where it's almost always true that reasonable judges have come to different conclusions. Federal appeals courts, however, do not have discretionary review. They have to take anything and everything that comes their way, down to the pro se prisoner who claims that his imprisonment is illegal because the indictment had printed his name in all capital letters (I had to help handle that particular case while I was clerking).

2. If you intend to refer to "federal appeals courts," then the sentence is incorrect. That is, federal appeals cases rarely involve questions with "multiple plausible answers" that are resolved by political preferences. In fact, an overwhelming majority of federal appeals decisions are unanimously decided. In 74% of all cases, the appeals court thinks the answer is so obvious that they don't even bother with oral argument. (See http://www.uscourts.gov/judbus2006/tables/s1.pdf). 84% of decisions are unpublished, and most of those are unsigned, indicating that, again, the court thought the answer was so obvious that the decision didn't even deserve publication. (See http://www.uscourts.gov/judbus2006/tables/s3.pdf).

Indeed, if you spend, as I have, two years reading everything that a particular appeals court decides, it can be rather tedious at times. This is precisely because so many of the cases involve simple, routine issues where there really isn't a reasonable controversy, but somebody just wanted to file an appeal anyway.

To be sure, there are the 5-10% of cases that fall into your category (multiple plausible answers and the possibility of ideological influence). And it's perfectly reasonable to be worried about those cases. Still, 5-10% is a long ways from "virtually always."

publius: "my point was that both elite and public opinion was well to the left of today's."

As a general proposition, there would be a number of ways to argue it, and I don't know that all would be incorrect, but most that occur to me would seem to be. But not necessarily all.

But it's doubtless best to try to stick to narrower propositions, since you're presenting them.

"I'm talking redistribution and faith in government programs in particular."

Possibly this is a true description of a simpler faith in government amongst liberals then -- I think that would be a fair statement. Perhaps ditto redistribution, although Nixon was absolutely wonderful at using this, and the whole "welfare" issue as a wedge issue -- my point being that if anything, the non-liberal segments of the country at the time were even more hostile to these issues then than now. So I'm not sure it's fair to say this of the country overall.

But I'm also not sure how to measure the differences, so there may not be more to discuss there.

"I mean, look at the type of laws Nixon signed on to (e-mental law, aff. action, etc.)."

Those seem to be different issues: the treatment of the mentally ill, race/affirmative action, were issues of liberal/conservative splits, but not identically to issues of economic redistribution.

Oh, wait, you were referring to "environmental law," not the laws about mandatory confinement of the mentally ill. Well, sure, those were overwhelmingly popular, which is why Nixon was forced to sign them, and the EPA, which he absolutely hated, but that's because everything was so damned polluted: the air, the water, garbage all over, etc. People would be the same today: that wasn't remotely so much a liberal/conservative political thing as an overwhelming, partially political, but largely non-partisan desire to be less immediately poisoned and choking, and to be able to see the air in LA, and not have rivers across the country bursting into flame (literally), or covered in massive foam or chemical slicks.

"also, i'd say that religion on many campuses was something to hide in 1970."

No, definitely not. Newman centers, and other displays of religion were not uncommon. They merely weren't popular with the masses, but, gosh, "Jesus freaks" were all over, and mainstream Christians like Hillary Clinton wasn't ashamed to mention religion now and again in her letters.

This was conventional Methodism, Protestantism, and similarly non-fundamentalist Christianity, for the most part, though, interspersed with the Jesus freaks, the Hari Krishnas, the JDL, exploring Buddhists, the generally spiritual (a huge percentage) and so on. Very different from the Christian Right, although there were always some of them, as well.

The distinction is that there wasn't a significant political rightwing Christian component on campuses, as Christians per se. But "religion was something to hide" is pretty wrong, I'd say, yeah.

"that's much different than today -- I think society is more publicly religious in 2007 than they were in 1967."

As organized fundamentalist or political Christians, yes. On the other hand, a lot of standard conventional liberal piety has declined, as well; back in the Sixties, we had Daniel Berrigans, and into the 80s, plenty of leftist nuns, protesting nuclear weapons, demanding a nuclear freeze, protesting atrocities and poverty in Latin America, and so on. Not so much now, perhaps?

"Now, I understand that Nixon bombed Cambodia, was a bad person, etc., or whatever else you want throw out there to argue that I know nothing from the years 1945-1991, but there it is.

I'm unclear what I've said here that makes this relevant, or even what it precisely means, but perhaps it's best to discuss what I've actually said and what you've actually said, rather than what anyone imagines anyone might say.

It's perhaps particularly best not to reply in advance to imaginary future insults.

Back at the original exchange, Sebastian had asserted that:

Are you suggesting here that John Roberts is beyond the pale for acceptable Supreme Court Justices? On what basis? He is much closer to the American mainstream of opinion than Brennan or Marshall ever were. He is at least as faithful to the Constitution.
And your response was this:
as for brennan and marshall, i think what you say may be true using today as a baseline, but not 1968.
So you seem to be saying that you believe that Brennan and Marshall's controversial decisions were more generally popular and accepted then, than now: is that correct? Or wrong?

Because if so, I'd suggest we try to be as precise in our terms as possible. Given how violently and harshly some of the decisions were received at the time in certain parts of the country -- including, of course, desegregation and busing decisions, which led to endless violence and riots and killings and nationalizations of National Guards, and so on and so forth, obviously that isn't true of those decisions.

But if you want to make more specific assertions about specific decisions becoming less popularly accepted as the years wore on (Roe v. Wade being one of the most obvious nominees), that would be another thing.

But generalization is perhaps an enemy here.

stuart -- i think that's right (I was an appellate clerk as well and most cases did indeed have a "right" answer).

but i think what scott and i are referring to are the higher-profile cases (particularly constitutional law cases) which are indeed almost always the way scott described them.

That said, in nomination debates, no one cares about the "obvious" cases. If they did, the political battles wouldn't be so intense. The political battles come b/c the "non-obvious" cases are incredibly important. at the supreme court level, they determine national policy. and at the circuit level, the courts of appeals can be supreme courts of more limited geographic scope (e.g., the 5th is usually supreme court for the included states)

Keir: "Bagehot's English Constitution calls the ability of the Lords to vote on judicial matters ``sleepy theory; it is not so by living fact''."

Fortunately, I didn't say anything about the ability of the Lords in general to vote on judicial matters. I wrote about the Lords of Appeal in Ordinary, and provided a link for those unacquainted with them. Is it your assertion that they, in fact, provide no judgments of legal appeals, then?

Because that would be a quite astounding assertion, I would think. And one would really have to ask what these people are doing on Mondays from 11.00 am to 1.00 pm and from 2.00 pm to 4.00 pm and on Tuesdays to Thursdays from 10.30 am to 1.00 pm and from 2.00 pm to 4.00 pm.

"back in the Sixties, we had Daniel Berrigans,"

Reverend William Sloan Coffin, I meant to particularly mention, as well. And Father Drinan (prominent as Boston College Law School, and an activist, in the Sixties).

publius: I think there are a bunch of cases in which intellectual honesty will go a long way, regardless of policy preferences. (I mean, of course they lead to results that favor a particular policy, but that might not be why you support them.)

For instance: I believe (in my artless, untutored, law-degree-less way) that 'unusual', in 'cruel and unusual punishment', means a punishment that is not the standard one for a given offense -- e.g., in a world with more judicial discretion, a judge who assigns the drunk driver who killed my kid to spend the next two years doing any lawful thing I ask of him, and the three years after that cleaning up the trauma ward in a hospital. Suppose this is not cruel: then it's fine. Suppose it is: then it's not. Suppose a judge assigns the normal punishment: then it may or may not be cruel, but it cannot be unusual.

Thus, according to me, no punishment assigned by statute can ever be "cruel and unusual." The only thing that would tempt me not to decide cases accordingly, were I a judge, would be stare decisis.

This has, for me, the unwelcome effect of making it hard to see how to strike down the death penalty, unless on some grounds of unfair application. But them's the breaks, I think: maybe if I read further I'd change my mind, but at the moment this does strike me as the best reading of the relevant amendment. Likewise, this is a "conservative" result, but that's not why I would adopt it (obviously.)

Put me on the bench and you'll have to ban the death penalty through the legislature. (On the other hand, you will get the second amendment not securing the rights of individuals to bear arms; just their militia.) But you will never ever get Bush v. Gore, or any other "heh heh, this isn't a precedent, we're not following anything so gauche as an actual principle here" decision.

hilzoy -- agree on the general point on intellectual honesty (also on the DP position). but that said, there's a step before that. for instance, let's say you pick that method for "cruel and unusual". even if you remain intellectually honest to that position, there's still the question of how you picked that position/standard in the first place. there's nothing in the text that compels it. it's perfectly reasonable, but others might also be.

again, the "politics/policy preferences" stems from the nature of the text. it's almost a linguistic argument -- the ambiguity in the text inevitably requires value judgments up front.

That said, we have precedent. and that complicates things, but a couple of points on that.

First, the issue of lower courts following higher courts is important -- and a somewhat distinct issue that probably falls under "qualified." For instance, if a lower court judge is always ignoring the Supreme Court, then that judge isn't qualified. It's less to do with politics/policy preferences than a failure to abide by professional legal standards and the rule of law.

The issue of high appellate courts is often different. The Supreme Court is never bound by prior decisions. Circuit courts are usually bound though. But regardless, there are a million different ways to get around precedent regardless of whether it's mandatory or not. You can say the legal issue is different. You can distinguish the facts. You can jump up or down layers of abstraction. And so on.

The point of this rambling is that subjective policy/value judgments often drive the decision TO DEFINE THE CONTEXT. Defining the context will determine whether precedent exists. (Again, the larger point is to illustrate the roles -- even subconscious -- that policy preferences can play in legal interpretation).

But as Stuart correctly noted, there are lots of "right" answers. And there are lots of contexts in which the precedent is clear. That's something I should have made more clear in the post.

"I think: maybe if I read further I'd change my mind, but at the moment this does strike me as the best reading of the relevant amendment."

As we know, IANAL, and neither am I any kind of expert in the history of the Eight Amendment.

But this seems to me deeply inconsistent with the history of how the Eigth Amendment came out, nonetheless: "Thus, according to me, no punishment assigned by statute can ever be 'cruel and unusual.'"

I can look up cites, if you like, but I'm quite sure that the intent of the Eigth Amendment included preventing Congress from passing laws mandating or allowing certain practices, with a history of governments using them, deemed to be simply overly cruel, such as, specifically, drawing, and quartering; burning at the stake; and impalement.

The English Bill of Rights of 1689, after all, says: [...] Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to [...] And illegal and cruel punishments inflicted; [...] That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; This wasn't intended to cover just stuff the King didn't authorize.

And in America, there's:

[...] In Wilkerson v. Utah (1878, pertaining to methods of capital punishment), the Supreme Court commented that drawing and quartering, public dissecting, burning alive and disemboweling would constitute cruel and unusual punishment while determining that death by firing squad was as legitimate as the common method of that time, hanging.

Because it is the needless infliction of pain, torture is prohibited by the Eighth Amendment.

The Court held in the case Trop v. Dulles (1958) that punishing a natural born citizen for a crime by taking away his citizenship is unconstitutionally excessive, being "more primitive than torture" because it involved the "total destruction of the individual's status in organized society".

In Robinson v. California (1962), the Court decided, 6-2, that a California law authorizing a 90-day jail sentence for "be[ing] addicted to the use of narcotics" violated the Eighth Amendment, as narcotics addiction "is apparently an illness", and California was attempting to punish people based on the state of this illness, rather than for any specific act.

[edit] Punishments forbidden as excessive

Weems v. United States (1910) held that a punishment is cruel and unusual if it is excessive. (The Weems case dealt with a sentence of cadena temporal, a punishment which mandated "hard and painful labor", shackling for the duration of incarceration, and permanent civil disabilities.)

In Coker v. Georgia (1977), the Court declared that the death penalty was unconstitutionally excessive for rape of an adult female and, by implication, for any crime other than murder. However, some states are challenging this rule[1] by enacting a death penalty statute for repeat child molesters.

Traditionally, the length of a prison sentence was not subject to scrutiny under the Eighth Amendment, regardless of the crime for which the sentence was imposed. It was not until the case of Solem v. Helm (1983) that the Supreme Court held that incarceration, standing alone, could constitute cruel and unusual punishment if it were "disproportionate" in duration with respect to the offense. The Court outlined three factors that were to be considered in determining if the sentence is excessive: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions."

Would you say any or all of this was wrongly decided, Hilzoy?

Also, is this (by the out of the mainstream William Brennan! View the horror!) unreasonable?

In Furman v. Georgia (1972), Justice Brennan wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."

* The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," especially torture.
* "A severe punishment that is obviously inflicted in wholly arbitrary fashion."
* "A severe punishment that is clearly and totally rejected throughout society."
* "A severe punishment that is patently unnecessary."

Continuing, he wrote that he expected that no state would pass a law obviously violating any one of these principles, so court decisions regarding the Eighth Amendment would involve a "cumulative" analysis of the implication of each of the four principles.

Again, these are restraints on laws being passed, not on punishments being passed without law.

The notion that the Eight Amendment wasn't intended to completely contradict the idea that "no punishment assigned by statute can ever be 'cruel and unusual," frankly shocks me. Water-boarding is fine, so long as statute clearly authorizes it? Amputation? Electric shock? Drills? Saws? "...but at the moment this does strike me as the best reading of the relevant amendment."

Am I misreading the context of all this? Because if I'm not, it astounds me, and I can't think you've thought through the implications. Since that seems unlikely, I'm tentatively assuming I'm badly misreading somewhere.

publius: I suspect that one possible point of difference between us is that I spend a lot of time construing texts, many of them 18th century texts, and the Constitution isn't by any stretch the main one. So I tend to have an approach that isn't policy-driven, I think.

I agree that there are cases in which interpretation is unclear, and you have to ask (according to me): which interpretation squares with the principles in the Constitution? Which makes most sense of them, and which makes them come out stupid? And there, after one does one's best, I think there's still work left over, that involves settling questions like: "what's 'stupid'?" with reference to value judgments. Though even here, I think they're often not so much value judgments like "Do I or don't I like this policy result?", but: "is this an idiotic version of the Constitution, as I think or an elegant one, as Scalia thinks?"

But there are a lot of cases -- and 'cruel and unusual' is one, I think -- that aren't about that at all. They are about two quite different readings of the word 'unusual' -- a word that occurs in other texts and other contexts, and about which one could have views that are not driven by ideology.

I mean, interpreting 'cruel and unusual' is not about finding the right level of abstraction at which to appeal to principle, or deciding what background conception of the Constitution and its function you're going to interpret it in light of. It's a question of two quite different takes on a word; not as divergent as, say, Charles I's usage was from ours when he called St. Paul's Cathedral "awful and artificial", as a compliment, but different in a way that's more related to that than other bits of text, and that therefore demands a choice between two quite different constructions of a term.

Gary: that's why I picked it as an example of mine that was not driven by how I wanted it to come out. I have thought through the implications. I don't like them at all. Nonetheless.

you should read an article by akhil amar called something like "Architexture." He echoes much of what you're saying -- the idea being that there are principles in the text itself that guide all this.

(I know this sounds like straight-up Scalia textualism, but it's different and more interesting frankly).

Me, I'm scarred. I think I just heard too many FedSoc members say "liberals create, conservatives interpret" during my formative legal years. Perhaps it's made me see too many pretexts, kabukis, etc. for my own good. regardless, it's certainly made me extremely cynical about legal doctrine as an actual explanatory force in many contexts

"Gary: that's why I picked it as an example of mine that was not driven by how I wanted it to come out. I have thought through the implications. I don't like them at all. Nonetheless."

But are you saying this is what you actually really truly believe? That the correct way to understand the Eighth Amendment is that it allows the state to create any punishment, including those I listed?

Or is it just a hypothetical?

Because if you actually do believe that, why would you believe that? It certainly doesn't jibe with any historical understanding of what it's ever meant, whether at the time of writing of our Eighth Amendment, or how it has ever been legally interpreted since, or how its antecedents were interpreted, all of which utterly contradict such an interpretation.

We're talking hypothetically, right?

I'd go along with Gary. I don't know that I'd call myself an "orginalist" (the nice folks at Balkinization have persuaded me that I don't know what that word means), but surely the original understanding of a law has to have some bearing on how it is to be interpreted.

And one thing that's very clear to me about the Bill of Rights is that it was originally understood as a set of restraints on Congress. Any interpretation of text in the Bill of Rights that doesn't yield a restraint on Congress's powers can't be a valid interpretation.

Gary, you've conflated Parliament with the legislative/executive in your 09:29.

You really don't appear to understand what the Law Lords' relation to the House of Lords is (non-existent, in practical terms), and you appear mainly interested in proving that you can cite obscure and irrelevant facts to demonstrate superiority.

Good for you. I'll go with Bagehot though, who says in The English Constitution:

No one, indeed, would venture REALLY to place the judicial function in the chance majorities of a fluctuating assembly: it is so by a sleepy theory; it is not so in living fact.

... ...

I do not reckon the judicial function ofthe House of Lords as one of its true subsidiary functions, first because it does not in fact exercise it, next because I wish to see it in appearance deprived of it.
(My italics.)

Bagehot held that the Law Lords were independent of the rest of the Parliament, which is to say, the legislative/executive aspect, as pejar said.

Nothing you've said has denied the cleft between legislative/executive and judiciary.

"Nothing you've said has denied the cleft between legislative/executive and judiciary."

I think we're experiencing the difference between an American and a British understanding of an "independent" branch of government is.

But that's all right; it appears that I'm doomed to disagree with everyone tonight. (I hope not disagreeably.)

That should be: I think we're experiencing the difference between an American and a British understanding of what an "independent" branch of government is.

I think what scott and i are referring to are the higher-profile cases (particularly constitutional law cases) which are indeed almost always the way scott described them.

Fair enough; I'd agree. To be sure, at a certain point this approaches a tautology: The handful of controversial cases are controversial. Still, those few cases do exist, and it's quite appropriate for people on all sides to care about them, as long as they don't think that those cases represent "virtually" all appellate work. (For what it's worth, I think that people often mismeasure the importance of cases -- a given ERISA or bankruptcy case may be dry as dust, but might be vastly more important to people's actual lives than any number of First Amendment cases, for example. Lots of people have pensions or financial problems; few people want to fly "bong hits for Jesus" banners.)

Fair enough. I was probably a wee bit too sharp there, to be honest.

Stuart Buck: "For what it's worth, I think that people often mismeasure the importance of cases -- a given ERISA or bankruptcy case may be dry as dust, but might be vastly more important to people's actual lives than any number of First Amendment cases, for example. Lots of people have pensions or financial problems; few people want to fly 'bong hits for Jesus' banners."

I don't think many people who argue in favor of, or care passionately about, civil liberties, do so with the notion that next week or month or year or ten years from now, it will necessarily directly affect their own actions and immediate lives.

I suppose some folks do, but I don't think most people have that delusion. It certainly isn't one I hold.

I'm not personally all that worried about being picked up as a suspected terrorist, or that my phone calls will be listened to, or that I'll be spied on by satellites, or what have you.

The cliche is: it's the principle of the thing. And indeed, that's what it is.

Keir: "Fair enough. I was probably a wee bit too sharp there, to be honest."

Fortunately, I, myself, have never engaged in such a thing, so I could never possibly let you off the hook on that.

Oh, wait, I can.

"So, on one thread Brett believes that wanton violations of a criminal defendant's Constitutional rights should not propertly be grounds for either of dismissal of charges or a "not guilty" verdict. On another, he's apparently concerned about extraconstitutional exercises power. Could you maybe please make up your mind?"

There's no conflict here: I happen to think we can find a better way of responding to crimes by government than releasing criminals we know to be guilty, and pretending that they're innocent. Like maybe finding a way to punish BOTH sets of criminals?

I think it's particularly important that we find a better way of responding to crimes by government, than pretending that aspiring mass murderers are innocent, and letting them go.

Maybe we could respond during sentencing, by getting Padilla better accomidations, but still keeping him locked up.

I think it's particularly important that we find a better way of responding to crimes by government, than pretending that aspiring mass murderers are innocent, and letting them go

is anyone here pretending Padilla is innocent?

Much though I loathe to give them credit, it's time to remember that the post-modernists were right about a crucial thing: there is no such thing as interpreting a text in a vacuum. The very act of interpretation is itself colored by the assumptions, viewpoints and beliefs of the interpreter. As such, there is no possible way to interpret a document -- let alone one as brief, cryptic and in fact deliberately vague as the Constitution -- in any "originalist" manner as defined by the Federalist Society et al. It can't be done; and morever, given the deliberately vague nature of the Constitution, it shouldn't be done.

This doesn't violate "textualism" in the sense that one's interpretations of the Constitutions should derive from the text as written -- no inserting "NOT" as Sebastian reductio-ad-oblivium'ed above -- and informed by earlier decisions (stare decisis, more or less), but it does mean that "originalism" per se is crap.

is anyone here pretending Padilla is innocent?

As Gary noted in the previous thread: innocent of what?

Scott, it is liberals who are saying that the Constitution forbids executing a 17 year old who plans, lies in wait and executes a murder despite directly on point Supreme Court rulings of less than 20 years vintage? Right?

It's particularly amusing that, when invoking the alleged non-political certainty of "the text," that you would invoke the Cruel and Unusual Punishment clause, which clearly, in itself, permits both readings on the case in question. The idea that the broad principles of the 8th Amendment can yield only one possible reading on any interesting question is utterly absurd. Even if we assume that the text of the 5th and 14th Amendments rules out the absolutist Brennan/Marshall position -- and I'm inclined to think it does -- the 8th Amendment can certainly plausibly rule out the death penalty applied for certain crimes and against certain people.

Or is that some other classification? Isn't it liberal judges who say that terms forbiding classification by race actually require it? Or is that somebody else?

Except, of course, that the Constitution doesn't have a provision "forbidding classification by race"; that's your (politically motivated) reading of a much broader provision. And can you please point me to the text of the Constitution that is even supposed to indisputably prohibit all racial classifications by the federal government? At least you've conceding, by making this argument, that you're not an "originalist," unless you want to claim that the Reconstruction Congress thought that all racial classifications were equally illegal, that education was a civil right rather than a social right, etc. etc.

Stuart--yes, that's correct; lower appeals courts will have a much broader range of cases where there is a "correct" answer, or a very small range of plausible answers.

Sebastian:

Gary, the Brennan and Marshall opinions on the death penalty for example have the dubious distinction of being dramatically out of step with the mainstream of their time, clearly Constitutionally wrong, and incredibly justify themselves with an appeal to the changing public opinion--which was never on their side.

You need to learn something about the cruel and unusual punishment clause before spouting like this. Of all of the vague language of the Constitution that permits wide latitude in interpretation, this is one of the most loose. Established Constitutional law on the subject is that the phrase varies according to the morals of the time -- not based on punishments deemed OK circa 1789.

Brett, I look forward to your proposed Constitutional amendment which paves the way for the conviction of criminal defendants via gross violations of their Constitutional rights. Can you explain further how this would work>?

"The idea that the broad principles of the 8th Amendment can yield only one possible reading on any interesting question is utterly absurd."

Allegedly under even under liberal theories of jurisprudence there are important things called 'precedent', I keep hearing about it with respect to even very questionable cases. The Simmons question had already been visited by the Supreme Court in 1989. Furthermore, the ruling in 1989 was perfectly in line with more than 200 years of other Constitutional analysis and functional practice. Still further, the evidence for a change in sentiment about the juvenile death penalty was incredibly weak and along most dimensions showed absolutely no change whatsoever. Further than that, Kennedy's assertion that the arguments of the detterence effect of the death penalty apply with less force against juveniles seems called into question in the very case at hand, where according to Kennedy's own recitation of the facts:

Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan, discussing it for the most part with two friends, Charles Benjamin and John Tessmer, then aged 15 and 16 respectively. Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could “get away with it” because they were minors.

But on the flip side, it certainly is a good argument for the idea that judges just decide what they want on a political basis.

"Except, of course, that the Constitution doesn't have a provision "forbidding classification by race"; that's your (politically motivated) reading of a much broader provision."

Who said Constitution? I'm thinking Civil Rights Act.

"You need to learn something about the cruel and unusual punishment clause before spouting like this. Of all of the vague language of the Constitution that permits wide latitude in interpretation, this is one of the most loose. Established Constitutional law on the subject is that the phrase varies according to the morals of the time -- not based on punishments deemed OK circa 1789."

Even really vague things still have interpretations that go beyond them. "Cruel and Unusual" definitely doesn't mean "Books written by Tolkien must be printed on blue paper". The idea that the death penalty was unconstitutional is WRONG even if you accept a "morals of the time standard". When Brennan and Marshall wrote their opinions (and even now) the "morals of the time" don't say that the death penalty is wrong. The very best you could say is that the "morals of the time" suggest the question is very very up in the air.

"Brett, I look forward to your proposed Constitutional amendment which paves the way for the conviction of criminal defendants via gross violations of their Constitutional rights. Can you explain further how this would work>?"

Why the heck would we need a constitutional amendment to provide for the conviction of criminal defendants via gross violations of the Constitutional rights, when nothing in the Constitution mandates the contrary in this instance?

If the gross violation is, for instance, that the person didn't get the jury trial they were entitled to, then setting them free follows directly from the fact that they weren't convicted in any manner the Constitution recognizes. OTOH, if the government grossly mistreats you, then gives you the due process you're entitled to, nothing in the Constitution requires that the result of that trial be set aside. Logically, the remedy ought to be that the bastard who violated your rights gets put up on trial, too. And, ideally, that you receive some compensation.

Though if you're an aspiring mass murderer, why should that compensation be a "get out of jail free" card? I'd say it would be quite reasonable, after the way he's been treated, to lock Padilla up in a luxury suite instead of a concrete box, by way of compensation.

a given ERISA or bankruptcy case may be dry as dust, but might be vastly more important to people's actual lives than any number of First Amendment cases, for example.

A recent example of this, and a further demonstration of the point of this post, was the atrocious decision in Ledbetter v. Goodyear. The Court held that an employee was barred from bringing a Title VII-based EEOC charge against her employer for pay discrimination on the basis of sex, where she based her claim on management decisions that occurred more than 180 days prior to the filing of the charge.

There was no textual reason for this interpretation, and it runs contrary to established thinking over the years for this type of situation (a doctrine known as continuing violations -- the statute restarts every time you are underpaid based on discrimination). It was a dry as dust issue that gutted discrimination law (Bush threatens to veto Congressional attempts to change the ruling). It is the type of crap that conservatives like to pretend is proper judging and somehow not political. Baloney.

The key argument against the death penalty being encompassed by the "cruel and unusual" clause, if I understand it, is not that the death penalty was in common use circa 1789. It's that the same Constitution which includes the cruel and unusual language explicitly contemplates use of the death penalty in several places. The relevant aspect from the founding era is that nobody understood that clause to be repealing parts of the existing Constitution.

Sebastian:

When Brennan and Marshall wrote their opinions (and even now) the "morals of the time" don't say that the death penalty is wrong.

To make it clear, you have changed your mind. You now agree that they followed the law in the method they used, but drew the wrong conclusion in applying that method. I would tend to agree that their conclusion was wrong, but they were doing what judges were supposed to do under the applicable law.

And that is the issue -- we are, after all, talking about whether the process for making the decision was purely textual or quasi-political.

"To make it clear, you have changed your mind. You now agree that they followed the law in the method they used, but drew the wrong conclusion in applying that method."

No, I said that even under the pretext that Brennan used they were wrong. Marshall pretty much didn't even bother with the pretext. The reason why those opinions are excellent examples of extra-judicial reasoning is because they don't stand up to scrutiny even on their own 'legal' terms. Any basic high school student who could read and understand "captial crimes", could understand that when the Constitution allowed the death penalty when ratified. So clearly Brennan and Marshall couldn't appeal to that. So they had to appeal to changed moral understandings, but they hadn't changed. Brennan and Marshall both knew that too, so they had to appeal to a 'trend' that hinted at a future hopeful (to them) moral understanding. As of Gregg v. Georgia, Marshall had abandoned even this pretext, because the passage of 37 state death penalty statutes in the 4 years since the last time he had tried to get rid of the death penalty killed off that argument. So than he was reduced to saying that if people understood the issue like he did, they would agree with him.

That isn't judging.

Allegedly under even under liberal theories of jurisprudence there are important things called 'precedent', I keep hearing about it with respect to even very questionable cases.

Ah, so we're already dealing with something other than "the text" here. And, yes, both sides talk about the importance of precedent but nobody thinks that constitutional precedents should never be overruled, so again this hardly eliminates judicial discretion. You make a perfectly good argument against Simmons, but you certainly haven't offered an argument that the reading of the majority if prohibited by the Eighth Amendment.

In terms of the CRA, that's a different argument, but nonetheless four conservatives on the Court remain committed to the (especially from an originalist perspective) highly dubious proposition that the Constitution is "color blind" (well, unless it involves segregation in prisons.) If this isn't "making law" I don't know what is.

You haven't answered my 11th Amendment question, but perhaps instead you can share with me the textual and precedential support for the claim that 1)The Constitution requires ballots cast under different systems be counted according to uniform rules, 2)except that this principle does not apply to any future case in which ballots are not counted under uniform rules, and 3)the ad hoc principle does not even apply in the case in question once the Court's favored litigant has achieved what he wanted.

OTOH, if the government grossly mistreats you, then gives you the due process you're entitled to, nothing in the Constitution requires that the result of that trial be set aside.

Ah. So, it's OK for the government to simply barge into your home and seize whatever evidence they want without warrants or anything, and convict you of a crime on the basis of evidence so seized, so long as they conduct the trial fairly? And then give you a nice posh cell?

I think I do not want to live in this country you envision.

Oh, and JFTR, Sebastian, this:

. . . Kennedy's assertion that the arguments of the detterence effect of the death penalty apply with less force against juveniles seems called into question in the very case at hand, . . .

does not necessarily follow from this:

Simmons assured his friends they could “get away with it” because they were minors.

The reasons of which Simmons could have conceived which would allow them to "get away with a crime" because of their minor status may have been entirely unrelated to any death penalty deterrent effect (or lack thereof). You'll have to go a little farther to show some direct connection between the two.

"I think I do not want to live in this country you envision."

I don't want to live in the country Hilzoy described (and believes in?), where it's Constitutional to pass statutes authorizing drilling people's kneecaps with power drills, and opening up their bellies to fondle their intestines while you torture them, and the Eighth Amendment says that's jim-dandy correct!, but I'm waiting for her to come by again -- I know she must be terribly busy with prepared for the new semester, after her trip -- to ask her further about this.

But I can imagine the reaction if Charles or Sebastian or Von had said anything of the kind. I'm still in suspended shock, and also find it remarkable that no one else has commented at all. (To be sure, that's partially a product of it being Sunday and quiet, and partially a product of the tremendous respect we all have for Hilzoy.)

Gary, let's put ourselves together, and start a new country up.

"But I can imagine the reaction if Charles or Sebastian or Von had said anything of the kind. I'm still in suspended shock, and also find it remarkable that no one else has commented at all."

I'm not shocked at all. It is a classic example of how discourse works here. Even uncontroversial statements by those on the right get picked to death, while even vastly controversial statements by those on the left glide by. Heaven help the mildly controversial statements made by those on the right.

It is a human failing though, to not want to question those you see on your side.

Anyhow, I'm off to play volleyball, so further comment from me will have to wait until later.

Phil: "Gary, let's put ourselves together, and start a new country up."

Soon enough civil war would break out, and it would all end in tears.

But I will get U.S. aid and arms, to protect myself from the probably terrorist-harboring Philistines! Your splittist ways will not last, you crypto-Qutbist! The bombing begins in five minutes!

Sebastian: "It is a human failing though, to not want to question those you see on your side."

So by questioning Hilzoy (and publius and Edward, when he was here), you're saying I'm inhuman?

I remain a bit doubtful, incidentally, that the primary appeal of watching professional vollyball, at least, isn't watching attractive young people with taut bodies of the gender we're attracted to leaping about in tiny and tight bathing suits. Am I wrong?

But I'm the last person you want to have analyze sports, and their appeal.

"So by questioning Hilzoy (and publius and Edward, when he was here), you're saying I'm inhuman?"

Heh. Perhaps like most humans, you suffer from and transcend the common human failings in different amounts for different failings.

I'm not watching volleyball, I'm playing it. But I'm sure you've identified an appeal.

Oh, and before I go, Scott, I've already said why I think precedent can be important--so you don't have to reinvent the wheel every single time you want to make a ruling. If you think decisions are long now, it would be ugly to have to rejustify everything. That doesn't justify giving MORE weight to precedent than to original text. That just means you don't have to do it every single time. But this idea that precedent should be seen as legitimately rewriting the text is not correct. Precedent is supposed to be a shorthand tool, not a replacement. In the Simmons case, the 1989 precedent was well in line with both the words and history. The Simmons case itself most decidedly was not. When you over-rule precedent, you should be able to explain why the precedent was WRONG. Precedent can certainly be wrong. You test that by judging it against the text. Simmons doesn't even come close to that. Otherwise you are just saying 'precedent can be overruled', which is fine so far as it goes, but leaves the might makes right--5 votes equals correct interpretation, scenario. If that is the case, the recent hadwringing about the Roberts court seems silly. 5 votes equals correct decision. Why complain?

Marshall does the same anti-judicial hand-waving in Gregg that Kennedy does in Simmons, only with less pretense. He ignores the precedent, ignores the actual exisiting moral understanding of the time, and appeals to the idea that citizens aren't informed enough to have a useful moral understanding of the death penalty. He does that be appealing to a 'scientific' understanding of detterance and an alleged lack of correlation with the death penalty which is A) not found in 'cruel and unusual punishment' and B) turns out to be wrong.

This is the type of 'judging' that publius seems to think is appropriate.

The thing I've never understood about criticisms of textualism is that the alternative methods don't offer any more useful understanding. Pick, pick, pick, but unmooring yourself from the text doesn't help the situation at all. You can't find precise meanings of words? That is just as true of any other system. You can't form concrete agreements about certain phrases in the text? That is doubly true if you are going to moor it to the 'sense of the text' or the 'principles of the text'. And if you are going to moor it to the 'tenor of the time' or some such, why bother having a Constitution at all? Isn't the whole point of a Constitution to put certain things beyond 'the tenor of the time'? None of the alternatives are any better than the thing you want to replace. I almost want to say to every criticism, "is it better under your system", but I'm sure that would get annoying.

The majority in Simmons is also in line with the text of the Constitution. This is the problem that you fail to deal with. Neither I nor Publius are "anti-textualists." But, particularly in cosntitutional law, the text on its own doesn't resolve any interesting question that comes to the Supreme Court, and this is especially true for something like the cruel and unusual punishment clause.

And, in pracitice, conservative judges are no more tethered to the "text" than liberal justices. Yes, Brennan and Marhsall made a bad legal argument in Furman (although the outcome in the case was clearly correct; I can't imagine how anyone could think that the death penalty as applied the last time that states were executing people at that time was consistent with the 14th Amendment.) And Rehnquist made a bad argument in Seminole Tribe, and five justices signed an opinion in Bush v. Gore that was not "law" in any meaningful sense at all. Your argument that conseravtives judges are government by "the text" while liberal judges just make stuff up is silly.

I don't want to pile on Sebastian, but since we're already conversing, I'm still hoping Sebastian will get back to us, when he's finished with vollyball, and has taken a shower, and whatnot, about what I asked yesterday, and then repeated in my August 18, 2007 at 09:36 PM, and earlier in my 09:13 PM, when I asked him what metric he would offer to support his assertion that Chief Justice John Roberts is "much closer to the American mainstream of opinion than Brennan or Marshall ever were."

How anyone could think that the application of the death penalty now is consistent with the 14th Amendment, or indeed consistent with a universe in which the 14th Amendment exists at all, is beyond me.

And if you are going to moor it to the 'tenor of the time' or some such, why bother having a Constitution at all?

To repeat, this argument makes no sense since the established law concerning the principle in question --- cruel and unusual punishment -- is supposed to be grounded in the "tenor of the time."

I'm not shocked at all. It is a classic example of how discourse works here. Even uncontroversial statements by those on the right get picked to death, while even vastly controversial statements by those on the left glide by.

You are right. We need more conservative nit-pickers. ;)

I interpret hilzoy's controversial statement as referring to the 'unusual' part, i.e. an established statute could be seen as excluding the content as "unusual". This still leaves the protection of the "cruel" part.

As I have said repeatedly, the US constitution notoriously gets shelved when inconvenient (like in times of war). Otherwise it would have been broken beyond repair a long time ago.

But Hartmut, Hilzoy wrote "Thus, according to me, no punishment assigned by statute can ever be 'cruel and unusual.'" That seems to indicate that she believes a punishment must be both cruel and unusual to come under the prohibition.

An alternative interpretation is that "cruel and unusual punishment" is like "summer and winter weather" in that it means "cruel punishment and unusual punishment". But IANACL, so I'm not sure how commonly accepted each interpretation of the "and" is.

In my opinion, the discussion of the C & U P clause of the 8th Amendment in http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=217&page=349>Weems really is excellent.

Dissenters (CJ White joined by Holmes) went Hil's way, majority went with a test for proportionality as inherent in the term.

I think a system in which law can be created a particular way when someone dies, and another way when they don't is a bit scary. I mean, if we get a Democratic president, tell me that you're not secretly hoping that one of "theirs" kicks the bucket.

But let's face it, your system looks good on paper, but people have worked it out now, and can game it. Bush has given a salutary lesson in how checks and balances can be hurdled or simply ignored.

Still, we (the UK in my case) are used to it. We have an elected dictatorship, in effect. The government is drawn from the legislature, and if it holds a sufficiently large (and/or loyal) majority, it can pass any law it chooses. We can only rarely have a political split between the executive and the legislature. Our judiciary is not as political, on account of nearly all being small-c conservative but living within a social consensus that is much stronger than yours.

"You are right. We need more conservative nit-pickers."

Or alternatively we could have nit-pickers be more consistent about it.

"when I asked him what metric he would offer to support his assertion that Chief Justice John Roberts is "much closer to the American mainstream of opinion than Brennan or Marshall ever were."

On Roberts' controversial opinions thus far, he is in line with at least 50% of the population's understanding. Brennan and Marshall on the death penalty, or obscenity, or the positives of racial classifications, were never that close at the time (and if I read things correctly may still not be). (See for example here) Unless I'm reading this incorrectly, even if you included all the "refused to state" and "depends" people as anti-death penalty, there has never been a majority opposed to the death penalty, and for the most part opposition is around 30%. If you are going to ground it in the "moral views of the time", anti-death penalty views have never been ascendant enough to invoke the Eigth Amendment.

A majority of the population believes that virtually any campaign finance reform is unconstitutional? You must be looking at different opinion surveys than I am...

Oh, and of the three examples you mention, B/M had at least a plausible textual argument. Their position on obscenity was more consistent with the text of the Constitution than the opposing view, and their position on racial classifications is far, far better based on the original understanding of the 14th Amendment. So while these might be good examples for the (uncontroversial) argiment that they do not always advance majoritarian views, they're much more problematic for your position that liberal jurisprudence ignores the text and history of the Constitution while conservative justices just straightforwardly "apply the law."

"Their position on obscenity was more consistent with the text of the Constitution than the opposing view, and their position on racial classifications is far, far better based on the original understanding of the 14th Amendment."

I am open to the idea that obscenity is just too hard to divorce from protected speech and thus has to be left alone, but that absolutely doesn't square with the idea that political speech--the very core of the protection--could be limited in any way under campaign laws. Choose one position or the other, but the liberal position of trying to have both just exposes the disdain for the process and the ascendency of ends-oriented 'analysis'.

"Yes, Brennan and Marhsall made a bad legal argument in Furman (although the outcome in the case was clearly correct; I can't imagine how anyone could think that the death penalty as applied the last time that states were executing people at that time was consistent with the 14th Amendment.)"

You're aware that Gregg is post-Furman, right?

But I'd be interested in seeing your analysis of Marshall's opinion in Gregg. Is it 'wrong'? On what basis is it wrong? How does it differ from legitimate non-textualist analysis? Perhaps by deconstructing it you could show a liberal version of jurisprudence that has definable limits and avoids the pitfalls of "words are hard to understand" that you think are such devestating criticisms of textualist methods.

Brennan's opinion in the same case is also intructive, he repeats his earlier appeal to "evolving standards of decency" directly in the face of 37 states creating new death penalty statutes to replace those he struck down only 4 years before.

If you disagree with the opinions, what method of analysis leads you to believe they are wrong?

Seb,


I think you're wrong regarding to what extent commenters react differently to you and hilzoy. I hypothesize that liberal commenters may react more tolerantly to hilzoy for any of the following reasons:

1. because liberals are biased and automatically give other liberals a pass

2. because hilzoy doesn't generally say crazy things or because hilzoy carefully phrases her statements to be correct in ways that you do not

3. because hilzoy has demonstrated better judgment than you have in the past and is thus entitled to the benefit of the doubt more than you might be


You appear to believe that the primary (or only) explanation is 1. May I suggest that it is not a coincidence that you seem have chosen an explanation that places all the responsibility for an unpleasant situation on people you disagree with and absolutely none on yourself? Or, am I misreading your comments here? There's nothing wrong with that per se, but it seems pretty relevant since you're making accusations about human nature and its associated failings...

May I also suggest that you re-read the recent comment thread where hilzoy discussed Lebanon? Several commenters reacted rather harshly to part of her post, including myself. Note, however, that hilzoy engaged people in a discussion and clarified the more objectionable part of her post. In general, I have not seen conservatives deal as well.

Finally, it would be good if at some point, we could have a front page post to discuss this issue. If it matters (and I think it does), then an actual discussion seems preferable to letting the problem fester indefinitely.

Gary: That's how I read 'cruel and unusual'. I don't like it any more than you do, but -- and this, I guess, is the topic of this post, sort of -- I do not take the meaning of the constitution to be determined by what I like. I mean, that's why I chose it as an example. There are a lot of dreadful things not ruled out by the constitution, things that we depend on our fellow citizens not to enact.

There are all sorts of cases that are judgment calls, where various things other than "the text" have to come in (where "the text" means the specific bit under discussion, and those other things can therefore include stuff like: one's sense of how well this squares with the rest of the text, including not just explicit contradiction of some other part, but just not making sense as being written by the same people who wrote that other part, or being consistent with that other part but making it come out completely stupid, etc.) But there are also some where, in my judgment, the constitution comes down in a way I don't like. Sometimes: a way I don't like at all. This was, of course, obviously true before the Civil War; I think it's still true now. On balance, though, I quite like the constitution, and if we lived in a better time, I'd try to amend it to deal with the rest.

Hilzoy, are you arguing that the framers didn't intend to ban any sort of punishment assigned by statute (they were only concerned about rogue government officials assigning punishments without legal basis?), or that maybe they intended to ban such punishment but they drafted the amendment badly by using the word "unusual" and thus didn't actually do it?

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