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NINOMANIA:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: Monday, June 30, 2003 ::
There is no doubt Lawrence Silberman, a senior judge on the U.S. Court of Appeals for the District of Columbia, had O'Connor in mind when he skewered the Supreme Court in a candid speech to the conservative Federalist Society last November. Pointing to the court's decisions on abortion, religion and (even before last Thursday) homosexual rights, Silberman declared: ''I do not think it even can be seriously argued that any of these lines of decision had a shadow of true constitutional justification.''
''How does the court get away with it?'' Silberman asked. His answer: ''It maintains its legitimacy so long as its activist opinions coincide with the views of a broad national consensus of elite opinion.''
:: David M. Wagner 11:49 AM [+] ::
At least I think it's ironic.
At least I think it's a paraphrase....
:: David M. Wagner 8:12 PM [+] ::
 Then Nebuchadnez'zar in furious rage commanded that Shadrach, Meshach, and Abed'nego be brought. Then they brought these men before the king.
 Nebuchadnez'zar said to them, "Is it true, O Shadrach, Meshach, and Abed'nego, that you do not serve my gods or worship the golden image which I have set up?
 Now if you are ready when you hear the sound of the horn, pipe, lyre, trigon, harp, bagpipe, and every kind of music, to fall down and worship the image which I have made, well and good; but if you do not worship, you shall immediately be cast into a burning fiery furnace; and who is the god that will deliver you out of my hands?"
 Shadrach, Meshach, and Abed'nego answered the king, "O Nebuchadnez'zar, we have no need to answer you in this matter.
 If it be so, our God whom we serve is able to deliver us from the burning fiery furnace; and he will deliver us out of your hand, O king.
 But if not, be it known to you, O king, that we will not serve your gods or worship the golden image which you have set up."
:: David M. Wagner 8:04 PM [+] ::
:: David M. Wagner 5:29 PM [+] ::
Ramesh Ponnuru in NR has an interesting take: the Texas sodomy statute did not, in fact, have a rational basis -- but then, why should states have to prove to federal judges that their legislative decisions have a rational basis?
Ramesh is even righter than he (perhaps) knows. When the modern form of the "rational basis test" first entered constitutional law (and Ramesh is right that it's a judicial gloss, not an authentic constitutional rule), in the wake of the New Deal, it was a thinly disguised form of "no review at all." So lenient towards legislation was this test that, as the Court demonstrated in Railway Express v. NY, one of the first of the modern r.b. cases, if the legislature can't produce a rational basis of its own, the Court will reach out and imagine one -- sort of like the way snooty restaurants used to provide ties to patrons who "forgot" theirs.
One of the interesting sidelights to Lawrence is that Justice Kennedy, and perhaps others on the Court, seem to be reaching back to the way the r.b. test was applied before the New Deal -- i.e., Lochner-style. See e.g. Kennedy's concurrence/dissent in Eastern Enterprises v. Apfel ("Although we have been hesitant to subject economic legislation to due process scrutiny as a general matter, the Court has given careful consideration to due process challenges to legislation with retroactive effects") and his opinion for the Court in State Farm v. Campbell ("The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor").
So, from the point of view of a 1940s liberal, Lawrence is reactionary, not progressive. I don't pretend to be a 1940s liberal, but I am definitely a fan of irony in "constitutional decisionmaking" (a phrase that, I am forced to concede, may be much more accurate than "constitutional law").
This is not said in mitigation of Lawrence. If the Court was going to revive Lochner jurisprudence, it should have done so in a principled, non-selective fashion -- in short, it should have adopted the views of Prof. Randy Barnett's brief for the Institute for Justice. (For the record, however, I do not agree with Ramesh that the Robert George/Gerard Bradley brief for the Family Research Council "fails to persuade." But I'm not going into the subtleties of new-natural-law theory today.)
:: David M. Wagner 10:31 AM [+] ::
On the one hand, the Court tells us there is an "emerging" international consensus against sodomy prohibitions. Yet it also tells us (based on unquestioning acceptance of the version of history served up by Professors Tribe and Eskridge, in their briefs for the ACLU and the Cato Institute, respectively) that in the U.S., such statutes are really quite recent.
Well, which "emerging" trend should control? Maybe the point is that an "emerging" international consensus should trump an equally "emerging" U.S. consensus, but the Court never makes an argument for that preference -- or even notices the contradiction.
:: David M. Wagner 10:09 AM [+] ::
Well, Rick Santorum may as well save that little list of his. It's going to be the syllabus of much of the Court's agenda over the next few years. Assuming, that is, that the Court views what it says today as binding in the future. "You can't assume a g__d___ thing in this Navy," said Capt. Queeg, or in the Court, say I.
For instance, who would have thought that the Casey mystery passage would ever be heard from again? Dismissed as a legal embarrassment even by some who agreed with it as a matter of political philosophy (assuming any meaning at all can be inferred from it), the Court barely even acknowledged it the one time between Casey and today that it had occasion to apply it: Washington v. Glucksberg. Today, the Court does not even mention Glucksberg, and quotes -- actually quotes -- the Casey mystery passage.
The revival of the Casey mystery passage means that the Court -- at least in cases involving "intimate" personal rights claims, cases that have "culture-war" overlay -- has abandoned law in favor of abstract normative political theory. There's a distinction there that used to be maintainable; now, after decades of Critical Legal Studies, plus Casey and Lawrence, I doubt that there any longer is.
But the Court's institutional prestige (not to mention the life tenure and salary protection that the Framers gave its members) is premised on its doing something different from what the political branches do. Today that premise is a smoldering ruin, by the Court's own hand, and the Court should be made to pay the price for its vandalism. We need a return to the constitutionalism of Lincoln's first inaugural address: no Supreme Court decision should be taken as permanently settling anything, and the coordinate branches of the federal government may and should make their contrasing views known.
By the way, I'd like to come to Dick Gephardt's defense on this. I don't know what he meant by executive orders opposing (hypothetical) Supreme Court decisions against affirmative action; I don't know whether he knew what he meant by that. But there was no need for him to retreat: whether he knew it or not, he was endorsing the Andrew Jackson/Abe Lincoln view of judicial supremacy, and he shouldn't have backed down.
In the interesting interview I just did with Nina Totenberg, she gave it as her impression that the Court was uneasy about Bowers as soon as they handed it down, and became more so over the years as people in general, including Supreme Court Justices, become more personally familiar with gay people. I think this is factually correct and has much explanatory power re today's decision. But still, one can imagine a decision that would have gone something like this:
"Seventeen years ago we held that sodomy laws are not prohibited by the Constitution. But that holding left states free to adopt, retain, or repeal such laws. Since that time, as societal attitudes towards homosexual persons have changed, many states have in fact repealed their sodomy statutes. Today we are called upon to overrule Bowers and hold that the Constitution forbids sodomy laws. But the very fact of widespread repeal of such laws shows that such overruling is unnecessary. The democratic process is today, as it was in 1986, an adequate vehicle for the reflection of society's moral views, including changes in those views. To overrule Bowers would give an unneeded boost to a political movement that is making progress anyway; it would also create further confusion in this already-confused area of constitutional law, and would unnecessarily brand as discriminators, and hence as bad people, those who in the democratic arena voice opposition to the progressive trends we have described."
I think there is tremendous significance in the fact that the Court did not issue the above-sketched opinion. For the gay movement, political progress is not enough, because it fails to place legal obstacles in the way of political counter-change, and (is this perhaps the most important gain of all?) it fails to bring down on the opposition the stigma of being bigots and discriminators as a matter of law.
We read a lot in the Lawrence opinion and briefs about negative stereotyping; the decision will accelerate the negative stereotyping of all who are not on board with the "gay movement"'s agenda. This is crucial for the cultural revolution: moral conservatives must be seen as KKK activists; Ken Connor must become Bull Connor. This is not about incremental political reform: it's about scorched-earth cultural politics. And the Supreme Court has just joined in the scorching, while preening over its own broadmindedness.
Read Our Hero's dissent here.
:: David M. Wagner 1:55 PM [+] ::
makes "a flexible assessment of applicants' talents, experiences, and potential …" blah blah blah. This is how it should be done, the court said.
Yes, but does the law school give an advantage in admissions to blacks and other minorities? Well, says the court, quoting the law school's brief, it "aspires to 'achieve that diversity which has the potential to enrich everyone's education.' " The law school "does not restrict the types of diverse contributions eligible" for special treatment. In fact, it "recognizes 'many possible bases for diversity admissions.' "
Yes, yes, yes, but does the law-school admissions policy favor minorities? Well, since you insist, yes: "The policy does … reaffirm the Law School's longstanding commitment to 'one particular type of diversity,' " i.e., "racial and ethnic diversity." But O'Connor's opinion immediately sinks back into a vat of fudge, trying not to acknowledge that "racial and ethnic diversity" means that some people will be admitted because of their race and others will be rejected for the same reason—exactly as in the undergraduate admissions system the court finds unconstitutional.
Zeroing in further, he adds:
The majority opinion says that its preferred flexible-flier style of affirmative action does "not unduly harm members of any racial group." Well, this depends on what you mean by "unduly," doesn't it? As noted, we're dealing with an all-or-nothing-at-all decision here. Every time affirmative action changes the result, a minority beneficiary benefits by 100 percent and a white person is burdened 100 percent, in the only currency on issue, which is admission to the University of Michigan. This burden may be reasonable or unreasonable, but it is precisely the same size as the burden imposed by the mathematical-formula-style affirmative action that the court finds objectionable.
Kinsley perhaps finds the burden reasonable because it remedies the effects of past discrimination, or he may, like the dissenters, find it unreasonable because it departs from more than a half-century of equal protection jurisprudence. But the Court takes neither view, holding that equal protection jurisprudence must be tweaked to achieve diversity within elites. See post immediately below.
:: David M. Wagner 10:13 AM [+] ::
Washington Post analyst Charles Lane implicitly picks up on the point raised in the Thomas dissent: this isn't about "diversity" (or, as Thomas would have it, "aesthetics") as such, nor even about diversity/aesthetics in higher education, but about diversity/aesthetics within elites.
The Court's opinion represents a strange reversion to good old pre-1960s WASP noblesse-oblige elitism, with the WASP aspect suppressed as far as race is concerned, but flourishing in spirit. America, the Court has saying, has an elite, needs an elite, and needs to have confidence in its elite. This requires that the elite have a racial composition such that the rank-and-file can have confidence in it. And achieving all this is a "compelling state interest," comparable, apparently, with protecting the United States against a hostile foreign invasion (the original compelling state interest, from Korematsu.)
:: David M. Wagner 9:31 AM [+] ::
After Grutter, is it permissible for states to maintain HBUs? After all, diversity in university education is a compelling state interest. A compelling state interest justifies every otherwise-unconstitutional action that the Court has ever considered (assuming that action is "narrowly tailored"). May a state act directly contrary to a compelling state interest?
See the Claremont Institute's amicus brief.
:: David M. Wagner 10:42 PM [+] ::
Links to Grutter and Gratz via How Appealing, here. Some early commentatin' here and here.
These decisions have already proved controversial within the Regent Law faculty. Some us are Ninomaniacs on this issue; others believe "equal protection of the laws" does not necessarily mean "equal laws" or "equal protection of social policy." Under the latter view, a law saying whites but not blacks may sue and be sued, or that homicide shall consist of the intentional killing of a white person (or of a black person, for that matter), would be a core EP violation -- but that beyond those "clear mistake" cases, federal courts should not interfere with decisions that state officials (responsible to their state's legislature, which in turn is responsible to the voters) make in pursuit of what they take to be their mandate.
:: David M. Wagner 11:48 AM [+] ::
Here's how I'm calling it: Bowers is upheld, but the Texas statute is struck down on equal protection grounds. Sodomy laws are permissible, but must be "gender"-neutral.
The controlling opinion will be plurality only. Rehnquist will write it, joined in full by O'Connor and Kennedy, conceivably by Souter as well (on stare decisis grounds). There will be a "scathing concurrence" by Scalia (dissenting on striking down the statute, obviously), joined by Thomas. Breyer will write the opposite concurrence-dissent, joined by Ginsburg, Stevens, and Souter if he doesn't join the controlling opinion. Stevens will file an opinion condemning morals laws and blaming them on religion.
My major reasons for this prediction: Rehnquist's recent run of sex-equality opinions (VMI, Hibbs); Kennedy's opinion for the Court in Romer; O'Connor's love for splitting the difference and "contriving to do nothing of national importance" (I'm trying to quote from memory here from Scalia's Webster concurrence); Rehnquist's possible preference for keeping -- let's call it -- control of controlling opinions that could get out of control.
:: David M. Wagner 9:58 PM [+] ::
:: David M. Wagner 9:54 PM [+] ::
:: David M. Wagner 10:10 PM [+] ::
According to this Washington Times report, separate polls by Democrats and Republicans show that most Hispanics don't know about the Estrada nomination, but that when told that an Hispanic judicial nominee is being blocked, they support his confirmation. Sounds like getting merely the word out is make-or-break. But Republicans don't always do such a good job of getting the word out.
:: David M. Wagner 9:16 PM [+] ::
:: David M. Wagner 3:53 PM [+] ::
:: David M. Wagner 3:50 PM [+] ::
Yesterday's forced-medication decision may be less about when defendants may be compulsorily medicated than about when and how they can appeal forced-medication decisions. Justice Scalia's dissent, joined by Justices O'Connor and Thomas, says nothing about the constitutional propriety of the forced medication decision of the trial court, but a great deal about how it should have been appealed, versus how it was. Here is the dissent.
I draw attention to this section:
[T]he adverse effects of today’s narrow holding are as nothing compared to the adverse effects of the new rule of law that underlies the holding. The Court’s opinion announces that appellate jurisdiction is proper because review after conviction and sentence will come only after “Sell will have undergone forced medication–the very harm that he seeks to avoid.” Ante, at 9. This analysis effects a breathtaking expansion of appellate jurisdiction over interlocutory orders. If it is applied faithfully (and some appellate panels will be eager to apply it faithfully), any criminal defendant who asserts that a trial court order will, if implemented, cause an immediate violation of his constitutional (or perhaps even statutory?) rights may immediately appeal. He is empowered to hold up the trial for months by claiming that review after final judgment “would come too late” to prevent the violation. A trial-court order requiring the defendant to wear an electronic bracelet could be attacked as an immediate infringement of the constitutional right to “bodily integrity”; an order refusing to allow the defendant to wear a T-shirt that says “Black Power” in front of the jury could be attacked as an immediate violation of First Amendment rights; and an order compelling testimony could be attacked as an immediate denial Fifth Amendment rights. All these orders would be immediately appealable. Flanagan and Carroll, which held that appellate review of orders that might infringe a defendant’s constitutionally protected rights still had to wait until final judgment, are seemingly overruled. The narrow gate of entry to the collateral-order doctrine–hitherto traversable by only (1) orders unreviewable on appeal from judgment and (2) orders denying an asserted right not to be tried–has been generously widened.
The dissenters -- who include O'Connor, remember -- also focus on the Court's use of the term "severity of the intrusion," not disputing that the intrusion is severe but rejecting the constitutional conclusions that the Court draws from that severity.
Hints about Lawrence? There, too, the "intrusion" is "severe," but does this have constitutional consequences? Finding O'Connor voting with Scalia and Thomas on a substantive due process issue in mid-June of 2003 has to set people wondering.
:: David M. Wagner 1:03 PM [+] ::
Paper Chase, the JURIST blog, notes that on June 15, 1215, Magna Carta (the first one, to be precise) was signed at Runnymede, England, and that on June 16, 1935, the New Deal legislative package was passed by Congress
:: David M. Wagner 7:51 PM [+] ::
Per Souter, the apparently tradition-based opinion rests on long-established regulability of non-profits' use of their funds.
Thomas, joined by Scalia, would impose strict scrutiny on regulations that limit political speech.
They would have an ally in Justice Joseph Story, not generally considered a libertarian, and certainly not one where free speech is concerned. Discussing the common law of libel, Story wrote in his Commentaries:
Nay; it has farther been held, that the truth of the facts is not alone sufficient to justify the publication, unless it is done from good motives, and for justifiable purposes, or, in other words, on an occasion (as upon the canvass of candidates for public office,) when public duty, or private right requires it. Frohnen, ed., The American Republic: Primary Sources, 358 (2002).
I.e., even for a non-libertarian like Story, who had no problem with post-publication prosecutions for seditious libel, as long as no prior restraints were imposed, discussion of political candidates was so important as to recognition of a wider liberty in such cases.
:: David M. Wagner 7:47 PM [+] ::
"Confusion over the constitutional implications of Tony Blair's reshuffle deepened last night amid claims that he committed a "gross discourtesy" by failing to warn the Queen of his plans to scrap the 1,400-year-old post of Lord Chancellor.
"Although Downing Street and Buckingham Palace tried to play down talk of a disagreement, the Queen was said to be 'livid'.
"The Prime Minister, who is due to visit Buckingham Palace tomorrow for his weekly audience, was under mounting pressure to explain the detail of his scheme to reorganise the judicial system....
"David Davis, who shadows the Deputy Prime Minister, said: 'If it is true that the Queen was not consulted it is entirely consistent with the haste and incompetence with which this whole exercise was carried out, as demonstrated by the fact that No 10 did not know that they needed primary legislation to remove the Lord Chancellor, and did not realise that without a Lord Chancellor the Lords could not sit.'"
:: David M. Wagner 12:02 PM [+] ::
:: David M. Wagner 11:31 AM [+] ::
Tory leader Iain Duncan Smith, smelling his first serious issue in months: the PM is acting like a "tinpot dictator" and treating the centuries-old British constitution as his "personal plaything".
Tory peer Lord Strathclyde: "trendy reforms cobbled together on the back on an envelope".
:: David M. Wagner 11:23 AM [+] ::
:: David M. Wagner 4:22 PM [+] ::
Having helped save the Iraqis and civilization (as to which, see this Charles Krauthammer column), Tony Blair is now reverting to his accustomed ways -- arbitrarily revolutionizing the British Constitution; or, in the inspired words of a Tory peer, "playing Pooh-sticks with 800 years of British history."
:: David M. Wagner 4:14 PM [+] ::
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:: David M. Wagner 1:17 PM [+] ::
Evidently the Iowa Supreme Court was more open to constitutionalized economic rights, as yesterday's SCOTUS decision overturned the Iowa court's decision reported at 648 N.W.2d 555 (2002).
:: David M. Wagner 12:56 PM [+] ::
Question that is sure to arise: If a less-than-lifelong appointment makes one not an Article III judge, then is a recess-appointed Art. III judge a real Art. III, since he can be "un-confirmed" by the Senate? It would seem he is not, yet recess appointments of Art. III judges have occurred -- someone named Brennan comes to mind -- with no loss of authority for their decisions during their recess-appointed periods.
:: David M. Wagner 12:49 PM [+] ::
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:: David M. Wagner 2:14 PM [+] ::
The Court has found an outer boundary to its 1990s project of building a high wall of state sovereign immunity out of the thin reed of the 11th Amendment. It has maintained all along that Congress can get around the 11th, and expose states as such to suits in federal court, by using one of its powers granted to it later than the 11th. In practice, this has always meant Sec. 5 of the 14th.
Hibbs, of course, concerns the Family Medical Leave Act. There is no doubt that Congress's commerce powers are adequate to allow Congress to impose this law on private actors (Katzenbach v. McClung, etc.). There is also no doubt that Congress can oblige state governments to conform to FMLA, at least as long as Garcia v. San Antonio is good law.
But can Congress make state governments suable in federal court? The Court has maintained that the 11th Amendment forbids this, unless Congress is acting not only under the commerce clause, but also under the 14th Am. It's the old Blackstonian later-in-time thing, you see. The 11th Am. comes later than the commerce clause, and so outranks it whenever they clash. But the 14th Am. would outrank the 11th.
Basically, when Congress was acting to remedy violations of the rights of the disabled (Garrett) or of the elderly (Kimel), the Court read such legislation as constitutionally permissible federal social policy under the commerce clause, but not as a use by Congress of its powers under Sec. 5 of the 14th Am. These come into play only when Congress is remedying, or preventing, a violation of the constitutional rights delineated in Sec. 1, of which delineation the Court itself remains the final arbiter (City of Boerne v. Flores).
Well, the Court has never held that disability or age are "suspect classifications" for 14th Am. purposes -- but it has held that sex (the Court keeps on saying "gender") is one, or at any rate a "quasi-suspect" classification (Craig v. Boren). Hence, it is easier for Congress to convince the Court that it is acting under its 14th Am. Sec. 5 powers when women, as distinct from the disabled and the aged, are the targeted beneficiaries.
But of course the purpose of FMLA is to mandate leaves of absence for fathers as well as mothers. Is it, therefore, legislation designed to relieve women, as such, from unconstitutional discrimination?
Yes, says Chief Justice Rehnquist's opinion for a 6-3 Court, because the policy goal of equalizing paternal and maternal leave is to eliminate "stereotypes" about women. This is the most controversial part of the opinion. Apparently one of the "stereotypes about women" is that they "naturally" or "usually" are primary caregivers to their children. For uncountable numbers of families, both today and throughout history, this arrangement has been the basis for family life that is happy, or, when not happy, at least stable, thus staving off worse unhappiness. But, according to the Court, government action that assumes a societal preference for this arrangement is a violation of the U.S. Constitution.
Perhaps the Court had to talk about "stereotypes," because there's no other way to raise the social goals of FMLA to constitutional dimensions, and thus, no way to find that FMLA is a valid exercise of Congress's 14th Am. Sec. 5 powers (as well as a valid of exercise of its commerce clause powers, which we're assuming it is). If Congress is merely legislating to implement its view of what's good for women, that's social legislation that Congress has the authority to pass (assuming modern commerce clause doctrine), but it's not necessarily action to remedy or prevent a violation of the Constitution.
But wait. Let's say a state government provides 12 weeks of parental leave to its female employees, but none, or less, to its male employees. Under existing Equal Protection precedents, such as VMI, "this is not equal protection." If we're bound and determined to find a constitutional violation, why not find one in the inequality of leave, without more? What does the rhetoric about "stereotypes" add? Except to show that Rehnquist is a feminist after all...?
BTW, Hibbs should betoken fair sailing for the Religious Land Use and Institutionalized Persons Act. RLUIPA is basically a much more refined and targeted version of the Religious Freedom Restoration Act (struck down in City of Boerne as lacking the "congruence and proportionality" to actual constitutional violations necessary to sustain a use by Congress of its 14th Am. Sec. 5 powers). The quantum of congressional fact-finding underlying RLUIPA was much greater than that underlying RFRA (essentially nil). Given the standards of congressional fact-finding required in Hibbs -- relatively low where an undoubted constitutional right is concerned -- I would predict the Court will uphold RLUIPA in an appropriate (and inevitable) case.
In other words, Morgan lives.
:: David M. Wagner 5:16 PM [+] ::
:: David M. Wagner 4:49 PM [+] ::