At Least She's More Qualified Than Michael Brown...

by hilzoy

As I said earlier, I would probably have voted to confirm John Roberts, on the grounds that almost anyone this President nominated to the Supreme Court would probably be worse. Unfortunately, today we see what worse would look like: Harriet Miers. Conservatives are, for the most part, upset. Bill Kristol is "disappointed, depressed, and demoralized". David Frum:

"In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met. She served Bush well, but she is not the person to lead the court in new directions - or to stand up under the criticism that a conservative justice must expect."

Andrew Sullivan:

"Think of her as a very capable indentured servant of the Bush family. (...) I think they've found someone whose personal loyalty to Bush exceeds even Gonzales'. And in some ways, I see this very personal, very crony appointment to be a response to being told he couldn't pick his main man, Alberto."

John Podhoretz (before the pick was announced):

"I am going to assume that this is a classic Bush head-fake gambit. If I'm wrong, I will spend the weekend banging my head against a concrete wall. This is the Supreme Court we're talking about! It's not a job for a political functionary!"

Mark Levin:

"But, in truth, we already know what's going on here, and that the president, despite a magnificent farm team from which to choose a solid nominee, chose otherwise. Miers was chosen for two reasons and two reasons alone: 1. she's a she; 2. she's a long-time Bush friend. Otherwise, there's nothing to distinguish her from thousands of other lawyers."

Todd Zywicki:

"At the time, of course, I had assumed that some minimum degree of luminescence would be required, in addition to Presidential trust. Little did I know that being close to the President would turn out to be the sole criteria for nomination to the Supreme Court. (...) I haven't double-checked the transcript from the press conference, but is everyone sure that he said "Supreme Court" and not "Secretary of Transportation"? The latter certainly seems somewhat more plausible..."

Krempasky at RedState:

"Mr. President, you've got some explaining to do. And please remember - we've been defending you these five years because of this moment."

And Erick:

"Me, the sources, everyone it seems was wrong. We've all heard the rumors, but not a one could believe the President would do that. (...) I think I'll let the President fight this battle himself, for now."

And just check out the comments on ConfirmThem.com. "Howls of anguish" doesn't begin to describe it.

(The always reliable Hugh Hewitt, by contrast, writes: "The president is a poker player in a long game. He's decided to take a sure win with a good sized pot. I trust him. So should his supporters." But even he has, essentially, to rely on faith.)

Reaction from the left is best summarized by Matt Yglesias at TAPPED:

"it's tempting to conclude that anyone whom the wingnuts dislike must be a good thing on some level. But au contraire! One of Bush's truly unique abilities is to undertake major initiatives (farm bill, medicare reform, steel tariffs) that conservatives don't like but which simultaneously don't do anything to please liberals. This may be another such case."

Yep. This is a nomination that shows us, once again, how little Bush cares about little things like a person's qualifications to hold a job, and his lack of respect for the Supreme Court. That should not please anyone, and apparently it hasn't.

Comments

[hilzoy]

Katherine: congratulations!

[liberal japonicus]

Hey everyone--I'm a lawyer, no longer just faking! I passed the bar exam!

Does this mean we take you more seriously or less?
;^)

CC's point about swearing in gives me an excuse to point to the last part of the NYT article about Roberts' first day

Just before the argument began, a fleeting moment in the courtroom underscored the inherent drama in the chain of events that had lifted Chief Justice Roberts into the Supreme Court's center chair. A member of the Supreme Court bar approached the bench to move for the admission of a dozen graduates of Pepperdine Law School.

It was Kenneth W. Starr, the former solicitor general, whom Chief Justice Roberts had served as principal deputy. Mr. Starr, who was a federal appeals court judge while in his 30's, was once widely considered a leading candidate for a Supreme Court seat. Now he is dean of a law school that overlooks the Pacific Ocean in Malibu, Calif., about as far from the center of action as it is possible to be.

"Dean Starr," Chief Justice Roberts said in acknowledgment, as their eyes met briefly.

"Mr. Chief Justice and may it please the court," Mr. Starr began.

and PTB, doesn't this call for an open thread?

[Katherine]

yeah, yeah, swearing in. details details. Unless they also expel you from the swearing in ceremony if your cell phone beeps?

[Dantheman]

Congrats, Katherine. But will you be sworn it or sworn at (by your clients) first?

[Jesurgislac]

Congratulations, Katherine!

[dutchmarbel]

congratulations Katherine.

[Sebastian Holsclaw]

"Katherine, congratulations, but of course you're not a lawyer til you're sworn in."

I avoided 4 years of fees that way with a job that I didn't need to be sworn in for. :)

Congrats Katherine.....I think. :)

[Sebastian Holsclaw]

"You're proving my point. You think this decision amounts to a knowing and intentional disregard of the Constitution, and is thus activism. The Court, however, said the result was compelled by the Constitution. To anyone who agrees that this is so, the decision does not amount to activism. "

The Court was not compelled to do any such thing and everyone knows it. There isn't even very good evidence that a particularly large majority of people think that executing a murderer who killed at 17 years of age is particularly cruel. And you can't play the 'minority rights' games with a phrase like "cruel and unusual" because it doesn't implicate minority rights--it implicates societal understanding.

Furthermore the very same issue had been ruled on already by many of the very same judges.

The decision was pure will-to-power. Kennedey got what he wanted and the pretense that he was compelled to it by the Constiution is just silly.

Katherine, do you think the Constitution compels that decision?

[Sebastian Holsclaw]

Katherine, I think you are agreeing with me when you write "If "activist" doesn't have anything to do with taking action, it is just being used as a less-accurate substitute for 'wrong'". Bob was seemingly try to define judicial activism as all possible judicial action, and then trying to classify it as good or bad activism. I'm not saying that 'activism' has nothing to do with action. I'm saying that not all judicial action is activism. And activism isn't the same as merely being wrong. I wrote above:

"You wouldn't define 'sexual activity' as all things that human beings do. That is "activity". If you define 'sexual activity' as "all things human beings do" then you have to talk about 'eating sexual activity', 'sleeping sexual activity', 'political sexual activity' and 'talking sexual activity' when you just mean "eating", "sleeping", "politics", and "talking". You haven't added anything to the discussion by doing things that way and you will completely confuse the average listener who understands the normal meaning of "sexual activity". Just because there may be fights about whether blow-jobs count as "sexual activity" doesn't mean that the term is completely unintelligible."

[Sebastian Holsclaw]

"Sebastian, I do not think that "legal realism" means what you think it means."

I'm pretty sure it does. See for example here or if you really want to look into the paper here (you can download the paper from the Stanford collection.

The problem is that the term doesn't mean what it sounds like it should mean.

[Mark]

CharleyCarp, I think the distinction you're missing is that "judicial activism," as Sebastian is using it, is not simply decisions that are wrong, but are wrong in a very particular _way_. Roper (sadly) is a good example in one direction; I happen to think, as Francis points out, that the Court's recent sovereign immunity decisions are good examples in the other direction.

[Jackmormon]

Congratulations, Katherine!

Sebastian, your sexual activity analogy is, um, slightly distracting.

[CharleyCarp]

The Court was not compelled to do any such thing and everyone knows it.

This is the complete basis of your argument and it's just not true. I don't "know it," and I does see any reason at all to believe that a majority of the justices "know it" either. As I've been saying all along, your argument is based on a presumption of bad faith that you're willing to impute to people who disagree with you. It's a mindreading foul of the first order, and is what makes the lament about 'judicial activism' nearly useless as intelligent discussion. I can as well say that Justice Scalia "knows" that there was no equal protection violation in Bush v. Gore, and indeed that everyone knows it. What have I got as proof? Simple, it's completely obvious that the intent element was completely lacking, and anyone with even half a half a brain can see it.

Of course, I can't really be sure that Justice Scalia is a liar. Maybe he's a fool. Or put more nicely (and closer to what I actually think), maybe he's completely missing the point (again) of what the Constitution is about. That prevents me from charging 'judicial activism' in your sense for this decision. And I think it fairly prevents you from saying the same thing about Roper.

[Mark]

Charley, do you think that Roper was rightly decided? And if so, why?

[Katherine]

I think Roper, like many if not most Supreme Court decisions, is wrongly decided in good faith.

[LizardBreath]

I'm not saying that 'activism' has nothing to do with action. I'm saying that not all judicial action is activism. And activism isn't the same as merely being wrong.

Okay, SH, I'd been following you until now, (not agreeing with you, mind you. When I've seen 'judicial activism' used in a concretely definable way, it has meant overruling or overturning laws or other actions of the other two branches of government, regardless of the rightness, wrongness or motivations involved) but I'm a little lost. If judicially activist decisions, to you, aren't those that are simply wrong, what are they?

A possible interpretation is that they are decisions that are knowingly wrong as a matter of law, because the judge feels that policy is best served by deciding a case wrongly. Is something like that your definition?

[LizardBreath]

And I should say: Woohoo Katherine! You'll be a credit to the profession.

[CharleyCarp]

Mark, that's a fair question, I guess. I'm not conversant in the facts upon which the finding is based, so it's hard for me to answer the ultimate question. I do believe, however, that standards under the Eighth Amendment are not fixed by what they were in 1789 (for the Feds) or 1868 (for states), but that a penalty is properly measured for reasonableness as of the time it is to be administered. And I think the the Constitution compels reviewability of the reasonableness of any punishment.

Speaking only for myself, I think execution of juveniles probably is over the line. But I haven't looked at the evidence re: the broader consensus that would su7pport this. Something is not an Eighth Amendment violation just because I don't like it, but only if my not liking it is in the mainstream.

A hard standard for states to apply? Sure. Who ever said the state's taking of life was going to be easy?

[Ugh]

Congratulations Katherine (I'd go on a long " the bar exam is stupid" rant here, but won't).

[Francis]

kath, great news. i still vividly remember the day 13 (!) years ago when i opened my bar results (yes, i passed on the first try -- thanks for doubting me you schmucks).

where are you going to practice? what kind of law?

as to cases like Roper, i think the majority overreaches when it states that the constitution compels the result. a better statement would be that the result is consistent with and a legitimate interpretation of the constitution.

after all, if you are saying that the result is compelled, and four justices disagree, then really what's happening is that the meaning of the word "compelled" is being distorted.

of course, abusing language is common practice in the law -- that's what zealous advocates do, at some level.

but the consequences of abusing language can lead to dangerous situations as well as some amusing ones. for example, as best i can tell, judicial activism means those cases in which SH "knows" that the justices are ruling in bad faith.

of course, how SH can know the contents of a Sup Ct justices mind is a question that we probably need Prof. Leiter (and Pharyngula?) to answer.

[Jesurgislac]

of course, how SH can know the contents of a Sup Ct justices mind is a question that we probably need Prof. Leiter (and Pharyngula?) to answer.

We could just give him a Karnak award every time he uses the term "judical activism".

[Sebastian Holsclaw]

"how SH can know the contents of a Sup Ct justices mind is a question that we probably need Prof. Leiter (and Pharyngula?) to answer"

It is revealed in their actions. Kennedy knows that the Supreme Court ruled that 16+ murderers could be executed because he was on the 1988 Court that so ruled.

It is also well in line with the history of interpretation of the clause over 150 years to allow it.

Also nothing has changed so dramatically in the treatment of juveniles in society as to warrant it--see for example the fact that children can get an abortion without parental consent (and in most cases notification) at ages as young as 14. See also that in most non-death penalty states juveniles can get sentenced to full life terms for murder, EXACTLY like adults--completely contradicting Kennedy's argument that juveniles can't be punished as adults because of various mental factors. If that were true, they shouldn't be subject to punishment exactly as if they had the same culpability as adults in non-death penalty states.

[Sebastian Holsclaw]

"We could just give him a Karnak award every time he uses the term 'judical activism'"

To be fair they could be grossly incompetent. I doubt it, but that is a possibility.

[LizardBreath]

So it sounds as if your meaning for 'judicial activism' is something like the definition I gave above -- knowingly deciding a case wrongly (as a matter of law) to serve policy considerations. Is that pretty much right, or am I missing something about your usage?

[Sebastian Holsclaw]

"So it sounds as if your meaning for 'judicial activism' is something like the definition I gave above -- knowingly deciding a case wrongly (as a matter of law) to serve policy considerations."

Pretty much. I think it gets a touch more complicated after years of judicial activism, because a judge could be groomed in an environment where he thinks that serving policy considerations is his job and then we get into trouble with the "knowingly deciding a case wrongly" because he wrongly thinks that policy considerations are how he is supposed to be judging.

[Katherine]

Take the statement "reasonable people can disagree about this." You can read that to mean:

1) there are two opposing views on this, both reasonable.

or

2) people who are basically reasonable can hold opposing views on this.

There are a lot of times when I think #2 is true even though I think #1 is not. Reasonable people can honestly hold unreasonable views.

I view originalism to be unreasonable, clearly wrong, disastrous for the country, a betrayal of the founders' intentions etc. etc. The idea that you're supposed to interpret the phrases "cruel and unusual", "due process of law", "equal protection", "unreasonable search and seizure," "freedom of speech" let alone the judicial tests like "shocks the conscience," "rational basis", "compelling state interest", "legitimate state interest", without reference to your policy views is naive, dishonest, and a total abdication of moral responsibility, etc. etc. Your goal should not be to serve your policy views but if you think they play no role you are simply lying to yourself.

But do I think there are reasonable people who are originalists, who honestly believe those views to be right, in good faith, after thinking about it carefully? Yes.

Sebastian won't admit this about his opponents. He constantly attacks the motives of liberal judges without any evidence other than that he thinks they're wrong.

[Katherine]

("won't admit this about his opponents" only in the contexts of liberal judges.)

[Sebastian Holsclaw]

"idea that you're supposed to interpret the phrases "cruel and unusual", "due process of law", "equal protection", "unreasonable search and seizure," "freedom of speech" let alone the judicial tests like "shocks the conscience," "rational basis", "compelling state interest", "legitimate state interest", without reference to your policy views is naive, dishonest, and a total abdication of moral responsibility, etc. etc. Your goal should not be to serve your policy views but if you think they play no role you are simply lying to yourself."

It all depends upon what you mean by 'your'. I do not accept that it is the proper role of judges to insert their own personal policy views into the Constitution. I believe that the view that judges ought to be inserting their own policy views is unreasonable, though reasonable people may indeed hold that incorrect view.

If you wish to argue that the societal understanding of phrases like "cruel and unusual" can change (somewhat) with time, I agree. (I won't agree that this is infinitely elastic e.g. that it could ever mean "plaid flowers are smooth" but I don't think you are arguing that). I do not agree that Kennedy in Roper showed that the phrase "cruel and unusual" has changed its societal meaning to any degree necessary to enshrine something as a new Constitutional right which is in direct opposition to the understanding that has been held for more than 150 years--and which has been directly ruled upon less than 15 years ago.

Even if you accept all sorts of general theorizing on protecting minority rights being some universalizing functino of the Court, a jurist can't pretend that the societal meaning of things like "cruel and unusual" is defined from a minority point of view. This is not a minority rights issue, it is a societal understanding issue. The idea that the society has changed such that a cold-blooded murderer who committed his murder at age 17 is not fully responsible for his actions such that he cannot be tried and punished as an adult is not supported in the opinion--mainly because society has not in fact changed that much in the last 15 years.

When a judge interprets a clause of the Constitution and all of the following are true, it should definitely be seen as judicial activism: it directly contradicts previous case law, it directly contradicts actual historical practice, and it does not enjoy overwhelming public support. I would argue that not all of those factors are necessary for an act to be defined as judical activism. I would suggest that sometimes indirect contradiction is enough. I would suggest that not all three factors have equal weight. We can have all sorts of discussions about how they should be weighed and whether or not all the factors are real issues. But in the case of Roper, where the opinion directly contradicts an on-point previous opinion, where it directly contradicts historical practice, and where the idea that 17-year olds cannot be punished for murder as adults does not enjoy overwhelming support, it is an excellent example of judicial activism.

I've read the opinion in its entirety and I don't see much in the way of good faith argumentation. It boils down to "I don't personally like it and if I squint really hard and play games I can sort of detect a trend that could be interpreted as favoring my personal moral judgment even though the method I use to explain that trend (that juveniles are not fully responsible) is deeply undermined by the fact that in non-death penalty states 17-year olds can be sentenced to the exact same sentences as adult offenders.

So even if you reject the orignalist position, you certainly can't argue that Roper is compelled by the Constitution unless you are willing to throw just about everything about interpretation out the window with it. Normally you (Katherine) don't seem like you want to do that--though the position you personally outline about jurisprudence has almost nothing to do with how Democrats actually operate when talking about or inhabiting the bench.

But you are right. If you can't say Roper is judicial activism than from your point of view the term cannot have a useful meaning. I don't know what you would want me to call it though. Maybe inserting personal moral preferences in direct contradiction to case law and historical tradition without the support of popular opinion in such a way as would be found by those on the left to be horrific if done by a fundamentalist Christian? That is a bit clunky.

[hilzoy]

Seb:"When a judge interprets a clause of the Constitution and all of the following are true, it should definitely be seen as judicial activism: it directly contradicts previous case law, it directly contradicts actual historical practice, and it does not enjoy overwhelming public support."

-- I haven't engaged with this discussion so far, mostly because I haven't had time to reread Roper, and don't remember it clearly enough. But I think the above is wrong. I think, for instance, that overturning Plessy would have met all three criteria. Despite this, however, one might think, completely reasonably, that Plessy was wrong, and that segregation in public accommodations was unconstitutional.

Likewise, although this is not one of my personal burning issues, I think that holding mandatory recitation of the 'under god' part of the Pledge of Allegiance to be unconstitutional in public schools, under the establishment clause, would be a perfectly reasonable position, as a matter of constitutional law. (I think it is unconstitutional, and if on the bench, I would so rule, even though if I were a parent, I would not take it to court, having absolutely no desire to see this become a major issue.)

Whether or not you agree with these particular examples, the general point is: the interpretation in favor of which one overturns case law in an unpopular way needs to be unreasonable, where unreasonable means not 'what I don't agree with', but 'an interpretation that makes it impossible for me to think that the judge who adopted it is just interpreting the law in a way I find reasonable though wrong.'

[Sebastian Holsclaw]

"'an interpretation that makes it impossible for me to think that the judge who adopted it is just interpreting the law in a way I find reasonable though wrong.'"

I don't use judicial activism to talk about all decisions I disagree with. I use them to talk about illegitimate abuses of judicial power, and Roper is most certainly that. It is a bald-faced insertion of the personal moral understandings of five judges. If done by fundamentalist Christians with the same level of 'interpretation' it would be denounced as an obvious step toward theocracy--unmoored from serious legal thinking. It is not based in custom, it is not based in the actual text, it is not based in popular understanding of the terms of the text (neither historically nor in present understanding), it doesn't even have internal logical consistency with respect to juvenile competence for the purposes of culpability and sentencing "as adults" in non-death penalty states. It is an exercise of pure judicial will. That is not how the Court is supposed to work.

[Francis]

the problem with SH's view of constitutional interpretation is that it leaves no room for error.

Sup Ct justices are extraordinarily reluctant to admit their own errors, and are even more reluctant to accuse former justices / courts of error.

this isn't surprising considering that our legal system derives from english common law which is based on precedent. If precedent can be ignored whenever 5 justices think that the prior court got the law wrong, then the law would have much less stability.

so, as justice roberts pointed out in his confirmation hearings, precedent should be reversed only when the court thinks that the earlier decision is really really wrong. (how does one distinguish wrong from really really wrong? one refers to precedent!)

there must, however, be some room for a court to declare that a prior decision was wrong. after all, the only person on this planet who claims infallability and isn't either homeless or a ward of the state is the Pope.

and if prior wrong decisions couldn't be reversed, there's not much point arguing about abortion, is there?

so kennedy changed his mind. I wish he had been more honest that he was simply changing his vote in Stanford rather than asserting that such a radical change in society had occurred justifying a different vote. but Stanford was also a 5-4 decision, so it's not like there was clear consensus on the court when the issue was before them previously.

as to SH's comment on legal realism: "Someone in "legal realist" theory has given up the ability to say that a decision was incorrect."

that statement is grossly overreaching.

Bush v. Gore was wrongly decided because the majority applied a legal doctrine in a way that it had never been used before, and said that it could never be used that way again. that's not law; that's the naked assertion of power.

for myself, i don't believe that the language of the bill of rights is infinitely malleable. but having practiced law for a while now, i'm also aware that many deals are closed through judicious use of structured ambiguity (aka we'll cross that bridge when we get there). given the diversity of views expressed by the founders in their contemporaneous documents, any legitimate theory of originalism must take into account the fact that the bill of rights is in many places deliberately ambiguous.

so now what? text, precedent, and analogy. If a state lacks the power to bar inter-racial marriage, does it retain the power to bar homosexual marriage?

sure, the argument goes. homosexual marriages are inherently infertile.

nuts, goes the counter. No state bars octegenarian marriages, or infertile marriages. no state dissolves the marriages of the voluntarily childless.

sure, the argument goes. homosexual marriage is revolutionary, contrary to this country's traditions, and icky. the majority should get to decide.

nuts, goes the counter. Bans on miscegenation are still on the books of several states, showing that racism is alive and well. Racism was not an adequate justification for barring inter-racial marriage and homophobia should not be an adequate justification for barring same-sex marriages. The bill of rights is inherently an anti-majoritarian document and the concepts of liberty, due process and equal protection written into the 5th and 14th amendment provide ample textual support for invalidating bans on same sex marriage.

i have a simple question for originalists/textualists. Was Loving v. Virginia correctly decided? How do you reconcile that case with the status of black americans at the time of adoption of the 14th amendment, where a legislator proposing to allow inter-racial marriages would have likely gotten lynched in most states?

[SomeCallMeTim]

it directly contradicts previous case law, it directly contradicts actual historical practice, and it does not enjoy overwhelming public support.

So, just to be clear, Sebastian, you now think overruling Roe would be judicial activism, correct?

[Sebastian Holsclaw]

"as to SH's comment on legal realism: "Someone in "legal realist" theory has given up the ability to say that a decision was incorrect."

that statement is grossly overreaching."

Read the links. If you are being grossly uncharitable to me I am slightly overreaching. If you think I'm wrong you are going to have to explain to me on what basis a legal realist could say that a decision was incorrect.

[hilzoy]

SH: what I meant with my little interjection was just: there is such a thing as a principled decision that overturns case law, contradicts historical practice, and has no popular support. I don't think your three criteria allow for this possibility. I didn't mean to suggest that you or anyone should call any decision you disagree with 'judicial activism', which I agree would be an abuse of language.

[Sebastian Holsclaw]

"If precedent can be ignored whenever 5 justices think that the prior court got the law wrong, then the law would have much less stability."

Yeah, exactly. Which is why I don't like the legal realists.

"I wish he had been more honest that he was simply changing his vote in Stanford rather than asserting that such a radical change in society had occurred justifying a different vote. but Stanford was also a 5-4 decision, so it's not like there was clear consensus on the court when the issue was before them previously."

He can't do that because it wasn't wrong before. And judges can't just change their minds. They have to explain why they changed their minds. The terms didn't change. The understanding of the terms didn't change. The jurisprudence didn't change. The society didn't change. The societal understanding didn't change. Nothing changed except the total number of Justices willing to substitute their own policy and moral decisions for that of the rest of the country in that case. If substituting your own moral judgment is ok, just come right out and say so. But don't expect me to support the Court as an institution if that is how it 'ought' to work. I don't see any reason whatsoever to support a 5-man lifetime oligarchy of rulemakers that aren't bound by the Constitution. Direct democracy is scary, but not as scary as a dictatorship of only 9 voting with majority rules and ruling everyone else.

[Sebastian Holsclaw]

"there is such a thing as a principled decision that overturns case law, contradicts historical practice, and has no popular support."

I'll agree. But if you are overturning case law, contradicting historical practice and don't have popular support, you had better have a super-duper-excellent-and-obvious reason to do so. Each of those factors ought to cause huge flags to cause you to really look at your decision. All three at once is a huge warning sign that you should be super-stringent about making sure you aren't just injecting your own personal views. And then when you are explaining yourself you had better be amazingly clear and point to the super-obvious.

Kennedy did no such thing in Roper. This can be seen pretty clearly in the rationale he chose--that state practice is such that 16 and 17 year-olds are not competent enough to be held fully accountable for murder. That is just not true. Even in most states that don't allow the death penalty for anyone, they can hold 16 and 17 year-olds to full adult status for purposes of punishment. If there really is a mental incapacity, that shouldn't happen. There is very little evidence of a dramtic shift in societal attitudes about the death penalty since 1985 when the last directly on point case was decided. If you are going to evaluate a phrase like "cruel and unusual" you can do so in one of four ways. First, you could try to understand what was meant when it was written. They cleary didn't do that. Second, you could try to define it as it has been defined by past precedent. Since this specifically overruled the 15-year old precedent and outlawed what had been legal for 200-years this is clearly not the explanation either. Third, you could try to understand what it means to the society as a whole. This was the pretext used but the evidence was not what Kennedy claims. Either Kennedy is math-challenged, or he wasn't entirely candid. Fourth, you can define it on your personal moral understanding. That is what legislators normally do. That is not what I want from judges. If I wanted that from judges, I wouldn't bother with a Constitution that they were supposed to 'defend'.

[Francis]

geez, did you even read the second half of the post, SH?

what limitations on the interpretation of the Bill of Rights should a judge consider?

Text, Precedent, Analogy, Logic, Understanding of History, Philosophy and Language, Appropriate Respect for and Deference to Other Branches of Government

in other words, have what is called "judicial temperment"

or, judges should be platonic philospher-kings.

when is a decision wrong? when it violates any of the above.

on the topic of the law, I have the following hypothetical that I'd like to hear some answers to.

An american takes his baby to a clinic in Canada for a procedure illegal in the US. The child dies. The reason the procedure is illegal in the US is that the procedure has a very high death rate. Canada refuses to prosecute and the American returns to live openly in his hometown, not showing any particular remorse over the death of his baby. You are the local prosecutor. What do you do?

now,

how does your answer change if the American is a woman, the baby is in utero and Roe is no longer law of the land?

[Sebastian Holsclaw]

Answer to both hypotheticals on the facts given is "nothing".

"what limitations on the interpretation of the Bill of Rights should a judge consider?

Text, Precedent, Analogy, Logic, Understanding of History, Philosophy and Language, Appropriate Respect for and Deference to Other Branches of Government"

So which ones did Kennedy violate. I think all of them. He definitely violates precedent. His explained analogy and logic fail based on a number of things, but especially since he is wrong about his mental ability claim vis-a-vis how states have discretion to treat 16 and 17year old murderers. He is going against the understanding of history. He goes against the common understanding of the language. I'm not sure what you mean by philosophy (his or something else). I'm sure he is ok with his own philosophy so I guess I'll give you personal philosophy. He doesn't give deference to other branches of government.

So he has what? One out of eight? One and a half out of eight?

Flat out, do you think it was judicial activism? If not, on what legitimate basis does it stand? I'm not going to try to talk about an emotionally invested case (for both sides) like Roe if we can't even talk about a recent and less invested case like Roper.

[liberal japonicus]

First of all, thanks for the links, especially the Leitner encyclopedia entry. As a linguist, seeing language philosophy refracted through another discipline is quite amazing. Two observations

First, Leitner says that the Legal Realism approach has been supplanted by 'legal process' school in the 50s and 60s, and seems to argue that Legal Realism no longer exists as an approach. In fact, you seem to argue precisely what the article has said has become the standard notion, which is that judges engage in 'reasoned elaboration of their decisions' (p 26)

You seem to take legal realism as a school which is still actively followed (perhaps it is, but from the Leitner article, it is not). If your argument is that people follow legal realism without knowing that they do, then it is a bit strange to present the foundations of legal realism as proof. Yet you refer to legal realists in the present tense. For you, this may be a 'By their fruit ye shall know them' observation, but it does strike me as a bit of a jump.

I'd also like to suggest that Kennedy's opinion in Roper was (I think) motivated by a further point, which is that international law should be taken into account. Now, Scalia thinks this is rubbish, I know, but even if you don't agree, can you see that some might (and obviously have) thought that this was reasonable?

In fact, the idea that democracy is something that is spread to other countries is basically the same idea, and only if you argue that the sole possibility is a one way transferral of ideas can you avoid the fact that it is hypocritical to argue for the former without acknowledging the latter.

Francis wrote:
up Ct justices are extraordinarily reluctant to admit their own errors, and are even more reluctant to accuse former justices / courts of error.

For a specific example of this, see Jerry Kang's Denying Prejudice: Internment, Redress, and Denial . Highly recommended.

[LizardBreath]

SH:

What do you do with Kennedy's argument that Stanford, the case being overruled, was inconsistent with prior 8th Amendment precedent in holding that judges were not permitted to use their own judgment, rather than societal consensus, as to what constitutes constitutionally 'cruel' punishment, and that under the prior precedent the opinion of the judge as to the cruelty of the punishment is a valid basis for a finding of constitutionality under the 8th Amendmendment? Because that argument seems like a sufficient support for the holding to me.

Now, I'm not terribly familiar with this case (that is, I just read it now, and hadn't read it beforehand) or with the earlier 8th Amendment precedent he cites. I can see arguing that the earlier precedent doesn't say what Kennedy says it said (I haven't read the cases). If the earlier precedent was good law and is as Kennedy represents it, though, the statement in Stanford that the opinion of the judges is not a valid basis for a finding of constitutional 'cruelty' seems to have been dicta, and erroneous dicta at that. At that point, there's nothing unprincipled about Kennedy holding that he considers, based partially on the evolution in state standards that he describes, the execution of minors to be constitutionally cruel in his own opinion, and to rule on that basis.

(Note: I'm not arguing that a judge's bare opinion as to rights and wrongs is generally a means of determining Constitutional rights, just that there seems to be precedent that it is a means of determining what counts as 'cruel' under the Eigth Amendment.)

[LizardBreath]

I should say, given that I can't edit the prior comment, that I can usually spell 'Amendment'. And 'banananana'.

[Dantheman]

Sebastian,

I've noticed you haven't responded to any suggestions that Bush v. Gore should be considered judicial activism. If you do not believe it is, please explain why.

Let me ask another question: if the Kelo decision went the other way (as nearly the entire right half of the blogosphere and signifcant portions of the left half wanted), why under your definitions would that not be judicial activism?

[Francis]

virtually all 8th amendment jurisprudence is, for me, what my father calls "ruminative jurisprudence", aka what your gut tells you, and is therefore inherently subject to judicial bias, even unconscious bias.

i think kennedy changed his mind. i guess that changing your mind and thereby changing the outcome of a constitutional interpretation is a form of judicial activism. i'm just not sure that activism in that context is necessarily a bad thing.

who was is who said, many years after Bowers was decided, that upon reconsideration he thought that the dissent had the better of the argument? Powell, i think.

having an open mind is tremendously difficult -- think how hard it is to see the legitimacy of your opponent's position. yet we ask judges to be neutral arbiters, persuaded only by argument.

which is a really interesting idea if you think about it. What is "argument"? How is it that people are persuaded to take one side or another of a position? Think about all the baggage that anyone brings to any position of being forced to pick a side in a dispute and what parts of that baggage are permissible factors to influence your decision making and what factors are not.

which is why it's a good idea to have really bright people on the Sup Ct with a proven record of teasing out legitimate legal arguments from the usual nonsense that counsel throws out.

which leads to one final point. I don't think anyone is truly capable of evaluating abortion cases neutrally. Knowing (or not knowing) someone who had an abortion and that person's struggles (or lack thereof) with the decision powerfully colors the views of everyone i've ever met. Abortion is probably the ultimate results-driven jurisprudence, on both sides.

[Francis]

the 9:46 post was written before I read Leiter's paper. wow, i guess i'm more of a realist than I thought.

but there's a reason for that. first day of law school, the professor says that the classic elements of negligence are: duty, breach, causation, damages.

But where does the scope of that duty end? How foreseeable must the harm be for duty to attach? Answer: because the judge feels that his decision is "right" / efficient / fair.

Or contracts law: contracts are to be enforced, except when they shouldn't be. what's the line between the two? See above.

or constitutional law: what does "due process" mean anyway?

cheers and goodnight.

p.s. I think many local prosecutors would disagree with SH's position on my hypo.

[felixrayman]

Has anyone else here realized how boring discussions about "what is legal" are, compared to discussions about "what is right"?

[freelunch]

Most court cases aren't about anything as simple as what is right. Both sides may be right or both wrong, but some solution has to be arrived at when rights conflict.

[kenB]

"realized"? Sounds like you think you're stating a fact rather than just your own opinion. Personally I think the legal discussions are much more interesting, since at least there are certain texts that everyone has to accept as authoritative.

[Katherine]

Souter isn't very far from how i'd like to think I'd operate, nor is Ginsburg. For every way in which I'm more moderate and "originalist" than them there's another in which I'm more liberal and activist.
Since when is Anthony Kennedy a Democrat?

[felixrayman]

Sounds like you think you're stating a fact rather than just your own opinion.

There's no "think" about it. There's reality, and then there is your argument, separate from that.

Personally I think the legal discussions are much more interesting, since at least there are certain texts that everyone has to accept as authoritative.

A falsehood, as a scroll upwards would detail.

You know, Hitler's seizure of power was legal. And you could spend all day arguing about that, but it doesn't take me long to know it was wrong.

Scroll up, same crap, different day. As long as there are a large number of people who believe that something being legal and something being right are isomorphic, we're gonna have a lot of problems.

And on the day that people realize that legality has nothing to do with morality, we will have the beginnings of a solution.

[kenB]

There's no "think" about it. There's reality, and then there is your argument, separate from that.

LOL. Behold the Voice of Moderation.

Personally I think the legal discussions are much more interesting, since at least there are certain texts that everyone has to accept as authoritative.

A falsehood, as a scroll upwards would detail.

Not at all, the question is in the interpretation of the authority, not the fact.

But I'm sorry you find this discussion so boring and pointless. Too bad there aren't any other blogs out there that might have a discussion more to your liking.

[felixrayman]

LOL. Behold the Voice of Moderation.

And, on your end, Behold the Voice of Made Up Crap.

That's your voice, if you didn't catch on, child. I can play your game too. Better than you can.

But I'm sorry you find this discussion so boring and pointless. Too bad there aren't any other blogs out there that might have a discussion more to your liking.

No, this blog is good. There are people here who want to discuss exactly what I do. That's awesome. And then, there are people like you, who confuse legality with morality. You chatter on and on.

I'll point out your confusion at every opportunity, and ignore, quite charitably, the slings and arrows of the terminably confused.

[rilkefan]

frm, where's the hostility coming from? You know what's right? Fine. Lot of people know what's right, like excluding you from political decisions and preventing you from acting immorally.. As a society we've decided you and they will coexist through laws, and some people find that stuff interesting, even though, as I'm sure you'll agree, iambic pentameter is infinitely more fascinating.

[Jackmormon]

Rilkefan, very much seconded.

Felixrayman, from your comments it's unclear whether you find legal decisions boring or vitally important. If the former, KenB's suggestion that you find somewhere else to comment judgmentally seems rather appropriate. If the latter, you've made a cryptic and poor case for yourself here. I'm probably on your side, but I have NO idea what you're actually arguing here.

I have no legal knowledge, but I've really been enjoying spying on the conversations of those who are willing to argue forthrightly and with evidence for what judicial approaches they believe in. I think it would be unfortunate if (cryptic, hostile) sniping from the sides derailed this discussion.

[DaveL]

Wow, things got interesting while I was away from the computer. Sebastian, I have some reading to do before I'm going to be able to fully engage your arguments about legal realism, and while it's on the to-do list, it's not going to happen tonight. But from what I do know, I'm fairly confident that you're misunderstanding what legal realists were trying to do, particularly in that you appear to view legal realism as an account of what judges should do rather than of what they do do or can do. I don't think it's a matter of "the law says x, but my policy preference is y, so I will decide y." It's more like "real human beings in the world we live in can't apply complex written rules to complex factual situations in such a manner that there is always one and only one correct answer, and because of that, when judges decide whether the answer in a close case is 'x' or 'y,' they necessarily are guided in part by conscious and unconscious views of their own."

[Sebastian Holsclaw]

"Note: I'm not arguing that a judge's bare opinion as to rights and wrongs is generally a means of determining Constitutional rights, just that there seems to be precedent that it is a means of determining what counts as 'cruel' under the Eigth Amendment."

Huh? How does that jibe with:

"under the prior precedent the opinion of the judge as to the cruelty of the punishment is a valid basis for a finding of constitutionality under the 8th Amendmendment?"

It sounds completely contradictory. I would be EXTREMELY skeptical of any claim that the legal definition of "cruel" in the Constitution is supposed to be held to the whim of any old judge who comes across it. That is asking for chaos.

"I've noticed you haven't responded to any suggestions that Bush v. Gore should be considered judicial activism."

I'm not engaging that question at this time for the same reason I'm trying not to talk about Roe--there is no point tackling the hard and emotionally invested cases when we can't even discuss the easy ones without coming apart at the seams. It would be like trying to tackle partial differential equations when we can't even agree on the principles of basic calculus (or arithmetic even).

"I'm fairly confident that you're misunderstanding what legal realists were trying to do, particularly in that you appear to view legal realism as an account of what judges should do rather than of what they do do or can do."

No I'm well aware of what legal realists started out to do. They initially saw the project as a scientific (though I would call it psuedo-scientific) description of how law works. They were the legal version of Skinner. The problem is that when they tried to invest truth value in what they described, it first undermined the rules they didn't like, but eventually was seen to undermine the entire rule of law. In legal realism a phrase like "government of laws not of men" is meaningless.

The legal realists got into trouble after they started fleshing out their ideas for the same reason why many people who tried out hard moral relativism had problems (and at about the same time). Their intial views operated in the field of norms which were informed by the principles they were denying. This offered an unconcious check on the how far their ideas could go. But when you start taking them seriously everything started flying out the window. When you take it too seriously legal realism can't be helpful in telling you how judges ought to rule on any particular case because it has denied that there are any real rules. (Or more precisely it says the rules are such that most outcomes can be selected for by the judge based on his personal whim and then cloaked in judicial language.)

[rilkefan]

"real rules"

A real rule might be, find for the party with the most vowels mod the date. Are you claiming there are real rules that decide all issues clearly? That can be applied the same way independently?

I mean, there are real rules for baking, but sometimes the bread comes out great and sometimes not. Surely anything complex as law is going to include a human element, and if one has to vote thumbs up or down, there will be cases where the judge says given the legal balance I'm going with the good guy here.

[liberal japonicus]

Perhaps I'm the only one interested in this, but since I found a number of interesting links about the question of foreign laws, I thought I would put them up in hopes of some discussion. Since Kennedy is the one in the hot seat for Roper, this Jeffrey Toobin article is very interesting. And while not the issue here, this anecdote was quite funny:

Kennedy mentioned that he belonged to the board of an American Bar Association group that advises judges and lawyers in China, where he travels about once a year. “There was a dinner for one of their vice-premiers,” he said. “I knew that I had to give a gift. We don’t have a budget for these things, so I went down to the Supreme Court gift shop, and I found one of these calendars. It was in a nice leather case, and it had some anniversary from American constitutional law for every day of the year. So we’re at this dinner, and I present the calendar to him, and he’s so pleased, so I just say, ‘When’s your birthday? Why don’t you look it up?’ And he says whatever the date was and hands the calendar to the interpreter. So the interpreter just stands there. He looks at me. He looks around. There was this silence. Clearly, he doesn’t know what to do. So I say, ‘Read it, read it.’ And the entry is for Dennis v. United States, affirming prison time for eleven American Communists. There was this silence again. My security guy headed to the door. Then the guest of honor just laughed and laughed.” Kennedy laughed, too, adding, “I am not a world-class diplomat.”

This TNR piece argues for the considered use of foreign precedents. This op-ed takes a dimmer view, and suggests at the bottom that Roberts may also have such a view, which was reinforced in the confirmation hearings in his questioning by Kyl. Ann Althouse took issue with that in this NYTimes op-ed (from Kenneth Anderson's blog, cause the op-ed is behind the sub wall. Anderson is also the author of this rather detailed piece against the use of foreign law here in Policy Review

Finally, the Breyer/Scalia debate on this question is here, with some interesting comments about the Eighth Amendment.

[Sebastian Holsclaw]

The TNR article comes up with two major reasons to consider foreign law: the other countries like it (foreign policy) and they may have thought things through about issues that we haven't considered yet. Both are great reasons for legislators to consider foreign law. Neither ought to have anything to do with judicial consideration of the Constitution of the Unitend States.

I'll have to look at the Breyer/Scalia debate when I get back from volleyball.

[LizardBreath]

Me: "Note: I'm not arguing that a judge's bare opinion as to rights and wrongs is generally a means of determining Constitutional rights, just that there seems to be precedent that it is a means of determining what counts as 'cruel' under the Eigth Amendment."

SH: Huh? How does that jibe with:

Me: "under the prior precedent the opinion of the judge as to the cruelty of the punishment is a valid basis for a finding of constitutionality under the 8th Amendmendment?"

SH: It sounds completely contradictory

All I can say is re-read. I said the same thing twice -- that Kennedy asserts that that there is valid controlling precedent for the position that constitutional 'cruelty' can be informed or determined by the moral judgment of the judge. From this:

I would be EXTREMELY skeptical of any claim that the legal definition of "cruel" in the Constitution is supposed to be held to the whim of any old judge who comes across it. That is asking for chaos.

it sounds as though you were unaware of the existence of that precedent, rather than disagreeing with Kennedy's characterization of it in an informed fashion. If Kennedy has characterized it accurately, do you have a basis for rejecting that precedent other than your personal distaste for it? How does that make you more principled than Kennedy?

(I should say, also, that as a matter of historical intution I think your rejection of the idea that 'cruelty' depends on the moral judgment of a judge is off base. Do you really think that the eighteenth century drafters of the Constitution contemplated that judges would consult statistics or nationwide surveys on a question like this rather than their own moral sense? The concept of social science had hardly been formed at that time.)

[liberal japonicus]

Look forward to it, Seb. Also glad that your leg (achilles tendon?) is healed.

It's strange, I read the whole TNR piece, or at least I think I did, but now, it shows up behind a subscription wall. I should point out that I just chose some pieces on both sides of the fence, and hope that you and others might link to some more.

I think there are a few other reasons that can be given. The first is that it seems strange to sequester off the Constitution from consideration (especially when it is unremarkable that we would view English law to make judicial considerations in regard to the constitution) The Anderson piece, which makes what seems to be a strong case against the use of precedents, has this bizarre footnote:
It is important to be clear that the controversy about foreign case law is specifically about the interpretation of the U.S. Constitution. All hands, including Justice Scalia, would readily acknowledge that the interpretation of statutes, conventions, international agreements, and so on frequently requires recourse to foreign and international law. U.S. statutes, for example, are often drafted with foreign and international law in mind. Moreover, the international law at issue is not that to which the United States has assented by ratifying a treaty, or customary international law acknowledged as such by the United States, but instead unratified international conventions and assertions of customary international law which the United States does not accept as custom. When this article refers to foreign law and international legal materials, this specific meaning is intended.

This seems to lay out a whole lot of international law that can be inserted and dealt with, so how logical is it to make the Constitution an island that can't be trod on?

The second is the one that Breyer enunciates, which is

I don't normally put these things in. Sometimes I do if I think they have some significance in my thinking and it will be useful to people. I think an opinion should be as transparent as possible. And for reasons of transparency, if I thought it was helpful I might put it in. And also I probably think that -- but these are not major things in the opinion. But occasionally it can help (to ?) show some of the other countries, as I said. But I think transparency is important in an opinion.

Ironically, the Miers nomination is defended precisely in the opposite way that you argue against this, in that Miers has experience outside the normal parameters, which makes her a good candidate (not saying that you are defending Miers, just noting this) Obviously (I think), we want our judges to be well and widely read and take into account a range of information, so we don't want them to go into some clean room in order to draw their conclusions about Constitutional issues.

I also was a bit taken aback by what I think is an undercurrent of racism in the discussion, where one of the examples against considering foreign law and decisions is 'why would we want to take the opinion of someone from Zimbabwe'. (Both Scalia and Anderson invoke this, I think) Perhaps a Zimbabwe precedent was cited, but I find what I think is the underlying notion that 'of course, Africans couldn't be expected to inform us of what is legal and right' disturbing, though I may be overreacting.

Stepping back from this as a debate in values, I see this as a development outside of that. In the New Yorker article, Toobin reports Kennedy as suggesting that this is a shift, just as the shift in using statistics and empirical data came at the turn of the century

At the beginning of the twentieth century, Louis Brandeis, then a Boston lawyer, began filing briefs with the Supreme Court which relied not only on judicial precedents but on empirical data, which was then beginning to be collected in a systematic way. His victory in the landmark 1908 case Muller v. Oregon, which upheld restrictions on the working hours of women—the Court’s opinion noted Brandeis’s references to “bureaus of statistics, commissioners of hygiene, inspectors of factories, both in this country and Europe”—changed the way lawyers and judges conceived of evidence.

I'm headed to bed right now, so I won't be able to answer until tomorrow morning. Y'all play nice, ya hear?

[Dantheman]

what happened? It brought in far more than I quoted. Kitten, please delete the prior post. Let's try again:

"I've noticed you haven't responded to any suggestions that Bush v. Gore should be considered judicial activism."

I'm not engaging that question at this time for the same reason I'm trying not to talk about Roe--there is no point tackling the hard and emotionally invested cases when we can't even discuss the easy ones without coming apart at the seams. It would be like trying to tackle partial differential equations when we can't even agree on the principles of basic calculus (or arithmetic even).

To me, Bush v. Gore is as naked a case of judicial activism as there comes, which I think even the justices realized when they said it could not have precedential value. If you do not want to discuss it in detail, will you at least concede that the right half of the court has engaged in judicial activism on occasion?

[Slartibartfast]

A very belated yet still heartfelt congratulations, Katherine.