It's an election year, and that means it's time to attack the federal judiciary (Texas Governor Rick Perry likes to call the Supreme Court justices oligarchs- or, better still, unelected oligarchs, but never mind that he can't remember how many there are, oligarchs don't need no stinkin' quorum). Forty years ago the mantra on the right was appointing "strict constructionists" to the bench- sound, intelligent but uninquisitive men who wouldn't go roving about- like Justice William O. Douglas- finding a right of privacy under a bush somewhere.
Strict contructionism seems to have been supplanted, over time by "originalism." That's the analytic framework championed by current Supreme Court Justice Antonin Scalia. Originalism holds that the Constitution only permits what the founders understood and articulated in 1787. After that, it's up to the states to regulate modernity. Strict constructionists applied the letter of the law to cases. Justice Hugo Black, in interviews, would pull out his pocket Constitution and, of the First Amendment, declare it was clear as it could be. "Congress shall make no law..." Period.
Originalists get all the interpretation they need from the founders. They argue they interpret the law "reasonably." But originality is in the eye of the beholder, and the result is you can have two originalists who, looking at the same case, can reach two different conclusions about it.
Justice Scalia explained his view of the differences of interpretive methods in a 2005 speech:
This is such a minority position in modern academia and in modern legal circles that on occasion I’m asked when I’ve given a talk like this a question from the back of the room — “Justice Scalia, when did you first become an originalist?” — as though it is some kind of weird affliction that seizes some people — “When did you first start eating human flesh?”
Although it is a minority view now, the reality is that, not very long ago, originalism was orthodoxy. Everybody, at least purported to be an originalist. If you go back and read the commentaries on the Constitution by Joseph Story, he didn’t think the Constitution evolved or changed. He said it means and will always mean what it meant when it was adopted.
Or consider the opinions of John Marshall in the Federal Bank case, where he says, we must not, we must always remember it is a constitution we are expounding. And since it’s a constitution, he says, you have to give its provisions expansive meaning so that they will accommodate events that you do not know of which will happen in the future.
Well, if it is a constitution that changes, you wouldn’t have to give it an expansive meaning. You can give it whatever meaning you want and, when future necessity arises, you simply change the meaning.
A critical view of originalism came up at the wonderful blog Crooked Timber during the confirmation hearings of Justice Elena Kagan. John Holbo commented:
The point, rather, should be that conservatives can’t ask Kagan to be a constitutional originalist – and decide the health care case in the negative on that basis – without highlighting the fact that originalism gives no weight to precedent and is not an attitude of deference to the legislative branch. There’s no guarantee the original meaning was what precedent has long said it is. It would not exactly be a surprise if legislators today are doing things the framers didn’t have in mind.
‘Let justice be done, though the heavens fall’ is supposed to be the motto of the judicial activist advocate of a ‘living constitution’; but the more usual sort of ‘living constitution’ attitude is slightly backwards-looking Burkeanism: respect precedent. Rule out the former, you rule out the latter. ‘Let a 200-year old conception of justice be done, though the heavens fall’ is not a better way to keep the heavens from falling and is, in fact, plausibly more likely to let them fall. (It isn’t all that preposterous that strict originalism would rule out paper money, after all. There are a lot of words you might use to describe the court unilaterally ruling that all US dollars are not legal tender, but ‘restrained’ is not high on that list.)
If what you want most is judicial restraint, and no activist judges, originalism is near to the worst of all possible judicial philosophies.
This is not to say that originalists can’t find ingenious ways to square the circle, making space for precedent by adding sophisticated additional premises and superfine epicycles to their philosophies. Scalia has done so: “I’m a conservative, I’m a textualist, I’m an originalist, but I’m not a nut.”
Originalism is a philosophy of fiery revolution, wrapped in a rhetorical shell of keeping everything the same. (That’s what American conservatism is, too, in a nutshell. That’s why Americans are philosophical conservatives but operational liberals, come to think of it. But maybe that’s too much for one post.)
So far I've tried to give an idea of how the ideological place cards get set at an appellate court's conference table. It is in how one interprets the law that cries of "judicial activism" arise.
Of course, in these fevered times "judicial activism" has become a meaningless term, except that in use it means you personally don't like a decision a court made. In practice, when it comes to the most extreme form of judicial activism- overruling a law passed by a democratically elected legislature- conservatives are way out front; the most rightward justices of the Supreme Court have proven the most willing to substitute their judgments for that of Congress.
All of which makes it tricky to figure out how to get a case through a federal trial court, then a federal court of appeals, and then to the Supreme Court (which accepts 1-2% of the cases it's asked to review).
When you get a controversial case ruled on your way by the supreme court, it's generally less because of bored justices sitting there all day, drumming their fingers, wishing they could overturn some law or decision. It's because really smart lawyers figured out how to thread the needle of getting a case filed, framed in the right way for argument, and then applying the law to get a court to rule in his favor.
How's that done? Well, I could go on for another few thousand words trying to explain that, but it's easier to recommend Dahlia Lithwick's review of a book on the 1993 Supreme Court decision overturning its own precedents and invalidating state sodomy laws, Lawrence v. Texas. Lithwick, along with Lyle Denniston, is in the pantheon of Supreme Court reporters, and Dale Carpenter, the author of the book- Flagrant Conduct-, is a smart- very smart- law professor of a conservative turn of mind. Please give it a read; you'll not necessarily agree with the subject, the strategy of the case, or the result, but you'll understand better how cases get brought to courts- and decided by them.
Which is a useful thing in an election year.
Strict contructionism seems to have been supplanted, over time by "originalism." That's the analytic framework championed by current Supreme Court Justice Antonin Scalia. Originalism holds that the Constitution only permits what the founders understood and articulated in 1787. After that, it's up to the states to regulate modernity. Strict constructionists applied the letter of the law to cases. Justice Hugo Black, in interviews, would pull out his pocket Constitution and, of the First Amendment, declare it was clear as it could be. "Congress shall make no law..." Period.
Originalists get all the interpretation they need from the founders. They argue they interpret the law "reasonably." But originality is in the eye of the beholder, and the result is you can have two originalists who, looking at the same case, can reach two different conclusions about it.
Justice Scalia explained his view of the differences of interpretive methods in a 2005 speech:
This is such a minority position in modern academia and in modern legal circles that on occasion I’m asked when I’ve given a talk like this a question from the back of the room — “Justice Scalia, when did you first become an originalist?” — as though it is some kind of weird affliction that seizes some people — “When did you first start eating human flesh?”
Although it is a minority view now, the reality is that, not very long ago, originalism was orthodoxy. Everybody, at least purported to be an originalist. If you go back and read the commentaries on the Constitution by Joseph Story, he didn’t think the Constitution evolved or changed. He said it means and will always mean what it meant when it was adopted.
Or consider the opinions of John Marshall in the Federal Bank case, where he says, we must not, we must always remember it is a constitution we are expounding. And since it’s a constitution, he says, you have to give its provisions expansive meaning so that they will accommodate events that you do not know of which will happen in the future.
Well, if it is a constitution that changes, you wouldn’t have to give it an expansive meaning. You can give it whatever meaning you want and, when future necessity arises, you simply change the meaning.
A critical view of originalism came up at the wonderful blog Crooked Timber during the confirmation hearings of Justice Elena Kagan. John Holbo commented:
The point, rather, should be that conservatives can’t ask Kagan to be a constitutional originalist – and decide the health care case in the negative on that basis – without highlighting the fact that originalism gives no weight to precedent and is not an attitude of deference to the legislative branch. There’s no guarantee the original meaning was what precedent has long said it is. It would not exactly be a surprise if legislators today are doing things the framers didn’t have in mind.
‘Let justice be done, though the heavens fall’ is supposed to be the motto of the judicial activist advocate of a ‘living constitution’; but the more usual sort of ‘living constitution’ attitude is slightly backwards-looking Burkeanism: respect precedent. Rule out the former, you rule out the latter. ‘Let a 200-year old conception of justice be done, though the heavens fall’ is not a better way to keep the heavens from falling and is, in fact, plausibly more likely to let them fall. (It isn’t all that preposterous that strict originalism would rule out paper money, after all. There are a lot of words you might use to describe the court unilaterally ruling that all US dollars are not legal tender, but ‘restrained’ is not high on that list.)
If what you want most is judicial restraint, and no activist judges, originalism is near to the worst of all possible judicial philosophies.
This is not to say that originalists can’t find ingenious ways to square the circle, making space for precedent by adding sophisticated additional premises and superfine epicycles to their philosophies. Scalia has done so: “I’m a conservative, I’m a textualist, I’m an originalist, but I’m not a nut.”
Originalism is a philosophy of fiery revolution, wrapped in a rhetorical shell of keeping everything the same. (That’s what American conservatism is, too, in a nutshell. That’s why Americans are philosophical conservatives but operational liberals, come to think of it. But maybe that’s too much for one post.)
So far I've tried to give an idea of how the ideological place cards get set at an appellate court's conference table. It is in how one interprets the law that cries of "judicial activism" arise.
Of course, in these fevered times "judicial activism" has become a meaningless term, except that in use it means you personally don't like a decision a court made. In practice, when it comes to the most extreme form of judicial activism- overruling a law passed by a democratically elected legislature- conservatives are way out front; the most rightward justices of the Supreme Court have proven the most willing to substitute their judgments for that of Congress.
All of which makes it tricky to figure out how to get a case through a federal trial court, then a federal court of appeals, and then to the Supreme Court (which accepts 1-2% of the cases it's asked to review).
When you get a controversial case ruled on your way by the supreme court, it's generally less because of bored justices sitting there all day, drumming their fingers, wishing they could overturn some law or decision. It's because really smart lawyers figured out how to thread the needle of getting a case filed, framed in the right way for argument, and then applying the law to get a court to rule in his favor.
How's that done? Well, I could go on for another few thousand words trying to explain that, but it's easier to recommend Dahlia Lithwick's review of a book on the 1993 Supreme Court decision overturning its own precedents and invalidating state sodomy laws, Lawrence v. Texas. Lithwick, along with Lyle Denniston, is in the pantheon of Supreme Court reporters, and Dale Carpenter, the author of the book- Flagrant Conduct-, is a smart- very smart- law professor of a conservative turn of mind. Please give it a read; you'll not necessarily agree with the subject, the strategy of the case, or the result, but you'll understand better how cases get brought to courts- and decided by them.
Which is a useful thing in an election year.
No comments:
Post a Comment