Brent Nyitray
Fairlington Blade
Let the mutherfuker burn!
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Kevin S. Willis
Michigoose
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Memetrics
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quarterback
ScottC
yellojktEver since last week I have been contemplating writing a post about the Supremes and judicial philosophy, but have not had the time to really put my thoughts in order, so I have put it off. Today, however, William McGurn, writing in the WSJ, noted in passing precisely the topic I wanted to write about, so I figured I would just highlight what he said. His article is primarily about Chief Justice Roberts’ decision to switch votes on the ACA case for what are seemingly political rather than constitutional reasons. But what caught my attention, and what I have been thinking about for a few days now, was the following aside:
Justice Scalia’s dissent in Casey illuminates a political handicap imposed on conservatives by their own principles. Whereas the liberal belief in a living Constitution allows them to stretch its limits to justify almost any desired outcome, conservatives believe the Constitution imposes real limits.
This strikes me as a real handicap. This is not to say that conservatives on the Court everywhere and always apply that belief and those limits consistently. We need look no further than Roberts and the recent decision itself to know that. But it seems to me that conservatives are uniquely open to the charge of failing to uphold their self-proclaimed principles because they actually profess to have some.
Putting aside whether or not the charge of hypocrisy actually had merit, at the very least it is fair to question whether or not the conservative bloc ruling in Bush v Gore set aside ostensible principles (eg states rights) in order to reach a politically desireable result. But imagine a mirror situation in which the reverse had happened. Imagine that a liberal majority on the court had made precisely the same ruling resulting in a Gore victory. The liberals might be accused, as they often are, of simply ignoring the constitution out of convenience. But who could ever seriously charge them with judicial hypocrisy? If liberal constitutional philosophy is correct and it is true that the constitution is “living” and therefore its meaning perpetually in flux depending social norms, circumstances, or who knows what else, then at any given time their interpretation of it may well be the “correct” one, even if it stands in contrast with the plain words of the constitution itself.
Basically, it seems to me that conservatives advance a theory of constitutional interpretation that makes conservative opinions objectively critique-able on their own terms, while liberals do not. That is why hand-wringing over the legitimacy and politicization of the Court inevitably centers around conservative Court opinions, and never, ever around liberal Court opinions. Again, the recent ACA case is instructive. Conservatives are now attacking Roberts, not the liberal bloc that voted with him and made up 80% of the majority, for what seems to be a politically inspired opinion, not because they think liberals aren’t being political, but because Roberts seems to have gone against his principles, while the liberals were just doing what liberals do.
Filed under: Supreme Court |
All Things in Moderation 
This is going to be a hit and run, since I’m about to get tied up for a few hours, but I wanted to ask this question. . . and now you’ve got however much time you want to answer it. The WSJ article (and you) bring up a point that I’ve long known is true: since Conservatives want the Court to be conservative, you put your own shackles on it (Liberals do it to other institutions or groups, but I think we know it)(we, after all, are the ones who pride ourselves on being cats who can’t be herded)(or Higgs bosons which can’t be put into a box).
I wouldn’t have gone to Bush v Gore, but rather to Citizens United in this exercise: how do you reconcile the Constitution–as originally framed–with that decision? I do not, at all agree that money and speech are the same thing, so you’re going to have to use a different argument than that to convince me that that ruling falls within the framers’ original intent. Can that be done? Or are you going to have to try to get me to agree that $$$ = blah blah blah?
And, secondly, what is quite wrong with the Constitution being a living document? This, of course, gets to the core of the difference between Conservatives and Liberals. Looking forward to jumping back into this one later today–thanks for the food for thought, Scott!
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This sounds like it would be an interesting discussion but I think I’ll beg off this one because I envision myself debating this statement all day, which I don’t believe was the point of the post. The first thing that popped into my mind was torture so I’m out.
But it seems to me that conservatives are uniquely open to the charge of failing to uphold their self-proclaimed principles because they actually profess to have some.
Conservatives good, liberals bad.
Happy July 4th. Eve everyone.
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lms:
Conservatives good, liberals bad.
No, that’s not what I meant. Basically what I meant is that conservative interpretive theory offers the means by which conservatives can be judged to be faithful (or not) to the theory. I don’t think that is true for a theory which views the constitution as “living” or “evolving” and therefore perpetually open to new and different understandings.
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This is quite true.
Liberal constitutional construction reliably conforms to the latest in liberal politics, and it is typically reached without reservation or reluctance.
As to michi’s comment, the issue in CU was not whether regulating spending for speech is regulating speech. That was decided in Buckley v. Valeo. The issue in CU was whether corporate speech can be prohibited.
If you don’t think that regulating spending for speech infringes the 1st Am., try to imagine a blanket prohibition on spending any money to speak. You can’t buy paper, pens, word processors, etc. Would that infringe freedom of speech?
Perhaps you could resort to freedom of the press, but then are you really going to say the NYT has the right to speak but you don’t? They could publish a newspaper, but you could be banned from spending money to send a letter to the editor? How would you send a letter to the editor if you could not spend any money for the means to do so?
As for corporate speech, the 1st Amendment says that Congress shall make no law infringing freedom of speech. It doesn’t say, except when people form corporations or other organizations, or when people act in a corporate position. It doesn’t say natural persons. Ask yourself whether “corporate speech” is speech. If it is, the 1st Am. says it may not be infringed.
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“how do you reconcile the Constitution–as originally framed–with that decision?”
I agree — in the sense that CU didn’t go far enough in striking down campaign finance restrictions. Congress shall make no law. full stop. it’s its political speech — or if its facilitates political speech, and money clearly does — and it deserves the most protection from the political system, which is interested in advancing its own agenda, at the expense of our political rights. CU wanted to run a campaign ad/movie. the fact that is is controversial in the slightest baffles me.
banning and/or limiting money in my mind is no different than saying, “hey you can speak all you want. but you can only run one printing press, and you can distribution your fliers on every other Tuesday. but not within 100 miles of a school”
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OK (quick question, still not able to spend much time), then how do you reconcile CU vs the decision that was handed down on 6/21 restricting unions’ ability to spend $$$ for “free” speech?
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OK (quick question, still not able to spend much time), then how do you reconcile CU vs the decision that was handed down on 6/21 restricting unions’ ability to spend $$$ for “free” speech?
The cases really have very little connection, and the SEIU case did not affect unions’ ability to spend; it affected their ability to extract dues from employees by operation of state law to be used for political compaigns. The SEIU case thus concerned the speech rights of dissenting employees, not the union. The court held that dissenting employees were being subjected to compulsory speech because the union was explicitly extracting the challenged dues, which state law allowed it to extract from unwilling employees (that is key), to fund a political campaign opposed by the unwilling employees.
Breyer and Kagan were the only dissenters, and their dissent is based on technical arguments that employees were really being forced to fund the political speech.
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But it seems to me that conservatives are uniquely open to the charge of failing to uphold their self-proclaimed principles because they actually profess to have some.
Heh. Obviously, liberals and conservatives both profess to have principles, and both can get called out on hypocrisy as regards those principles. I think the point Scott is getting at is that conservative tends to be originalists, and don’t see the constitution as being easily malleable to fit the flavor of the day, and say so, where liberal jurists don’t tend to constrain themselves in such a manner.
Goose: And, secondly, what is quite wrong with the Constitution being a living document?
Thomas Jefferson thought the constitution ought to be torn up every generation (he was not a fan of the original constitution, BTW) and re-written for the current generation. Given what people normally come up with in “contemporary” constitutions (i.e., laundry lists of entitlements and bureaucratic power expansions), it’s good that we don’t do what Jefferson would have preferred.
Given the choice between new constitutions being routinely written or having a “living, breathing” constitution, I will pick the latter.
As regards Citizens United, speech is not explicitly defined, but clearly the first amendment was intended to protect pamphleteers and others investing some moneys towards the promotion of ideas and people, and early on, newspapers were routinely partisan and devoted considerable fortunes, at the time, to advocating for one political side or the other.
Perhaps it’s a bad idea of equate money with speech, or allow corporations to fund political campaigns, but I’m not sure Citizen’s United is inconsistent with the framer’s intent, or that there is anything inconsistent with conservative interpretation of the constitution and Citizen’s United.
Having the government constrain speech by controlling how much money can be spent getting the word out, or deciding what sorts of groups of people get to spend how much money getting the word out, seems inconsistent with the 1st Amendment to me, and thus Citizen United was rightly decided, with an originalist interpretation of the constitution (I am in no way an expert on constitutional law, however).
The 1st does not guarantee equal access, or that people must listen to you. It represents a restriction on the government’s ability to censor. Citizens United, in that regard, seems much more consistent with the 1st than CFR, or other efforts that have been advanced in insuring incumbents remain unchallenged—I mean, that we “get money out of politics”.
Of course, what constitutes government constraints on free speech can be different to different people. I like full disclosure of donations, so everybody knows what person or company or institution is funding a campaign, and who is funding them. Some would argue that this lack of anonymity represents a restraint on free speech, thus making it an abridgment. I disagree, but I don’t think disagreeing with that is a political calculation on my part, or represents a non-originalist interpretation.
So, part of originalist interpretation may be debatable. John Roberts might arguably have been making an originalist decisions with the ACA, but interpreting the mandate as a tax and finding the government’s ability to tax well-established and . . . so on.
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Ask yourself whether “corporate speech” is speech. If it is, the 1st Am. says it may not be infringed.
The 1st amendment doesn’t guarantee speech equality, or that everybody will have equal access, or that my political speech will have the power of the Koch bros. It just says (as I understand) that the government cannot abridge free speech.
As regards the 6/21 decision. I’m not familiar, but I found this:
If that’s accurate, that doesn’t seem to be an issue of abridgment of speech. Ruth Bader Ginsburg and Sonia Sotomayor decided against the union, apparently.
Compelling non-members to pay union dues (essentially) seems (?) to be what was actually at play there.
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Kevin
Heh. Obviously, liberals and conservatives both profess to have principles, and both can get called out on hypocrisy as regards those principles.
Heh. Yes I’m sure that’s accurate……………………………
Liberal constitutional construction reliably conforms to the latest in liberal politics, and it is typically reached without reservation or reluctance.
Like I said, conservatives good, liberals bad. According to the premise they may both profess to have principles, but conservatives are the only ones who, you know, actually have them.
And, I’m also sure this is accurate……………..
That is why hand-wringing over the legitimacy and politicization of the Court inevitably centers around conservative Court opinions, and never, ever around liberal Court opinions.
Gosh, I can hardly think of a single liberal court opinion that was challenged over legitimacy or politicization. Oh wait, those don’t count because they’re unprincipled. Sorry if I’m being a little negative but essentially I reject the premise in case anyone wonders where I stand. Have fun you guys, I’ll back my illogical self out of this one.
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lms:
Sorry if I’m being a little negative but essentially I reject the premise in case anyone wonders where I stand.
What premise do you reject? My premise is that liberals and conservatives have different approaches to constitutional interpretation, and the difference hinges on the notion of a “living” or “evolving” constitution. Is this the premise you reject?
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Like I said, conservatives good, liberals bad.
That really wasn’t the point. The point was that liberal constitutional theory in fact does call for the Constitution to be reinterpeted to fit political goals. One could fairly say that is the single unifying and defining characteristic of it, one that is proudly proclaimed. Some like Bruce Ackerman go so far as to argue that the Constitution is legitimately “amended” through the informal process of court decisions and elections.
I do happen to think that this kind of theory does not have the same legitimacy as more “conservative” approaches, but the point was simply that it is empirically accurate to say that liberal jurisprudence makes the Constitution malleable to perceived policy needs of the moment. Liberal judges like Ginsburg, Brennan, and Marshall saw and see this not as something to be ashamed of but as the glory of their approach. That is why you often see their opinions accusing the other side of a “crabbed” or “cramped interpretation” of the Constitution–which means those on the other side were sticking too closely to the words and structure and not taking enough liberties with them to reach what they take to be the desirable result.
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Given the plurality of unanimous decisions each term, I’d say that a significant number of constitutional principles are shared between the “conservatives” and “liberals” on SCOTUS. Hosanna-Tabor this term was a particular rebuke to the EEOC by allowing religious organizations to define the “ministerial exception” for themselves.
Even in non-unanimous cases, it is not so easy to see where the various Justices’ lines are. For example, Snyder v. Phelps (Westboro Baptist case) was an 8-1 decision, Alito dissenting. But in US v. Alvarez (Stolen Valor Act), Scalia and Thomas joined Alito in dissent. Alito’s vote in both cases (in a simplistic sense, to limit free speech) was predictable — he’s the only member of the current Court to have served in the military (Army reserves). In Reynolds, the Court ruled 7-2 that sex offenders who committed their crimes before the Sex Offender Registration Act were not required to register. The dissent was by Scalia, joined by Ginsburg.
I don’t think one can really generalize about what one thinks the constitutional principles of the Justices are, based solely on the 20% or so of cases decided by 5-4 (“conservatives” vs. “liberals”) votes.
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I don’t think one can really generalize about what one thinks the constitutional principles of the Justices are, based solely on the 20% or so of cases decided by 5-4 (“conservatives” vs. “liberals”) votes.
I don’t know that anyone has said that you can, but looking at opinions in sharply divided left-right cases is certainly the best way to tell. These aren’t imagined differnces. Breyer wrote a whole book mainly to contrast his philosophy with Scalia’s book on his.
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Here’s an interesting take from Ace on why Republicans can only seem to nominate blank slates for judgeships
http://minx.cc/?post=330654
Warning for dirty words and hilarious sockpuppetting in the comments. Greenwald would be proud.
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Conservative justices appear to be happy with the response, so what? I am too.
BB
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These aren’t imagined differnces.
Of course not. That the Justices differ in their views of the Constitution is undeniable. I just think it is difficult to ascertain what those views are by using the broad brush of “liberal” versus “conservative.” Plus, it would be hard to categorize Kennedy as one or the other, since he is usually the swing vote.
looking at opinions in sharply divided left-right cases is certainly the best way to tell.
OK. Let’s look at the last Term. According to SCOTUSblog, there were 10 ideological 5-4 decisions, 5 for each with Kennedy in the majority for all of them.
“Conservative” wins:
Coleman: sovereign immunity for states from self-care suits under FMLA.
FAA: sovereign immunity for the government from “emotional distress” suits under the Privacy Act of 1974
Florence: suspicionless strip searches for prisoners entering general jail population.
Christopher: no overtime pay for pharmaceutical sales reps (sorry, Troll).
American Tradition: Citizens United applies to Montana.
“Liberal” wins:
Douglas (consolidated): punted on the question of whether CA could be sued for Medicaid payment reductions, making the Ninth C. review whether Supremacy Clause challenge can go forward.
Frye and Lafler: Sixth Amendment right to effective counsel extends to plea bargaining.
Dorsey (consolidated with Hill): crack felons who were convicted before the Fair Sentencing Act but were sentenced after get the benefit of the lighter sentence.
Miller (consolidated with Jackson): no mandatory life without parole sentences for juveniles.
So, not too many constitutional principles to be gleaned, IMO. For the conservatives, the 4th Amendment protections apparently have limits, or rather, being put into a general jail population regardless of your guilt or innocence is reason enough for strip-searching. For the liberals, “criminal prosecutions” described in the 6th A include plea bargaining and I think we’ve been over Miller — whether mandatory life without parole sentences for juveniles is “cruel and unusual” (8th A).
BTW, Kennedy authored Florence, Frye, and Lafler. Miller was Kagan’s.
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Now that I’ve become a real constitutional scholar by reading decisions and everything rather than just parroting liberal talking points, I realize the Justice Thomas is the only True Conservative on the bench in that he only applies the literal words in the Constitution. To quote the Toobin article I linked to the last time we were arguing SCOTUS:
It doesn’t get more hardcore that saying that no new interpretations can be made after the ink is dry. So all the things that got created after 1793, like unions, medical insurance, and in vitro fertilization have to all be compared to their 18th century analogue such as indentured servitude, barbers performing surgery, and witchcraft.
You have to admire that kind of consistency and dedication.
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Here’s an interesting take from Ace on why Republicans can only seem to nominate blank slates for judgeships
I’m a more respected constitutional scholar than Trump and that is saying something. I agree with whoever said here earlier that Roberts was deferring to Congressional wishes and erred on the side of inferred constitutionality even if he had to give Verrilli an assist in oral arguments.
As for the vote flip-flop, maybe he just wasn’t willing to as far out on a limb as Kennedy would. But I would advise liberals in taking solace in Robert’s Road to Damascus moment. The pressure is now on him to earn back his right wing bona fides. He’ll overturn Griswold vs. Connecticut if he can find a way.
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Mike,
I am struggling to understand exactly what you are saying. If opinions and votes in sharply divided lef/right cases do not tell us much about how the constitutional jurisprudence of Justices, then I don’t know where else we could look for better information, outside of books they might write or speeches or interviews they give (which happen on occasion). Unanimous decisions? In that case, we apparently can’t know much of anything, which means, there really aren’t any discernible differences. Perhaps you are taking a strong legal realist position that all opinions are written to reach a political result, and none of the Justices are following any real principles?
One problem with your methodology is that you are looking at a very small sample–5-4 cases from one term (where you are also excluding the ACA case). Some of these Justices have been writing opinions for 20+ years.
Even in the handful of cases from this term, however, we in fact can clearly discern some broad trends just from the issues and votes (without even reading opinions). The liberal block trends against sovereign immunity of states, in favor of federal goverment power to regulate states and corporations, and in favor of broad and expansive reading of rights (4th, 6th, and 1st Am) except where it involves corporations. The conservative block trends in favor of sovereign immunity, against federal government power to regulate states, and for less expansive reading of rights and without deferring as much in the case of corporations. The liberal and conservate blocks thus have different views on issues broadly defined as federalism and rights. Kennedy happens to be on the side of both federalism and broad application of rights, which explains who won in all these cases.
Now, these are more observations about outcomes than of the underlying philsophies that lead to them, but they nevertheless are important in the discussion. The trends just in that one year make Kennedy’s vote on ACA more explainable in hindsight, but the wild card with him has always been his capricious tendency and willingness to put great stock in “institutional” or political considerations. That is what happened in part in Casey. The plurality opinion he joined pretty openly says, it is more important that the Court protect its own reputation than to admit an error in Roe, and it essentially chastises the pro-life movement for not bowing to the Court’s rulings and “ceasing” their opposition. Scalia and Thomas were outraged at this approach, calling it judicial imperialism.
Roberts’s vote on ACA came as more of a surprise to many, although some of us suspected it. Those of us who suspected it did so based on his perceived pattern of deference to federal government exercise of power, that is, a view of judicial restraint that defers to the other branches and avoids invalidating legislation. This is a clear difference from the other conservatives, who treat judicial restraint as more concerned with holding Congress to the terms of the Constitution, i.e., we are not doing our duty if we let Congress exceed its powers.
I fail to see how anyone can read the ACA opinions alone and not see clear differences in how the conservatives and the liberals approach constitutional questions. The same is true of all of what one might call telltale cases over the decades. The iconic, touchstone opinions written by liberals and conservatives in sharply contested cases reflect sharp differences in constitutional approaches. Griswold and Roe, after all, were based on the notion that various explicit and implicit rights create “emanations from penumbras” where we can find other rights. Another area where you can very clearly see these differences is in death penalty cases over the years. Some liberal justices have written that, as society has changed and views evolved over the years, captial punishment became forbidden cruel and unusual punishment, even though the Constitution explicitly contemplates that capital punishment is permitted. Conservatives utterly rejected not just these results but the approaches that led to them.
If you read these and many other opinions in divided cases, it is inescapable that liberals do in fact follow what can broadly be called “living constitution” approaches, while conservatives follow originalist, textualist, and strict constructionist approaches. This is why, for example, Ginsburg basically says in her ACA opinion that in 2012 we have “national” problems that are too important not to read the Constitution as granting Congress the power to address them. And the conservatives say, that simply is not part of constitutional analysis.
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QB:
Thanks for your detailed response. Got a few experiments cooking, but I just want to address a couple of points.
Perhaps you are taking a strong legal realist position that all opinions are written to reach a political result, and none of the Justices are following any real principles?
IMO, Thomas is the only Justice that consistently follows set principles in reaching his decisions. I think that his votes are fairly predictable when you look at the issues through his Constitutional lens. The other Justices appear to have “philosophies,” but those don’t necessarily seem to be binding, at least not compared with Thomas. The only case that I can remember in which I thought Thomas voted against his principles was the VA cross burning case. And given that Thomas grew up as a black man in the South, I probably would have been disappointed if he hadn’t dissented.
One problem with your methodology is that you are looking at a very small sample–5-4 cases from one term (where you are also excluding the ACA case). Some of these Justices have been writing opinions for 20+ years.
Sure. I’m not a legal scholar by any means; I’m not even a lawyer. So, my “analysis” is something that I could do easily in a few minutes. Another problem with my methodology is that I only took into account the results themselves and not any concurring or dissenting opinions that may have better described the Justices’ actual position on the cases, rather than whether they just agreed with the judgment. The ACA case wasn’t included in SCOTUSblogs “ideological” category, so I didn’t include it on the list. There were 5 5-4 decisions that weren’t included because they weren’t the typical “Kennedy joins the conservatives/liberals” ideological splits.
A couple of last things before I have to get back to work. “Cruel and unusual” punishment is a good example of the differences, I agree. Certainly, there are lots of forms of punishment that were acceptable during the 18th century that would not pass muster today. Is that a good thing or a bad thing?
Also, IIRC, Griswold and Roe were 7-2 decisions. It has been a while since I read the concurrences though, so I don’t remember what limiting principles might have been outlined. So, strictly focusing on ideological split decisions is probably not going to get the texture of each Justices judicial/constitutional philosophy.
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Marc Thiesson must have read the same essay as he wrote a column that covered the same ground. Without acknowledging his source, though.
“Liberal nominees can simply affirm liberal positions, while conservatives must speak cryptically in terms of their judicial philosophy.”
As for the original post, I seem to recall a lot of hand wringing over Roe v. Wade. Had Bush v. Gore been resolved differently, there would have been 12 hours of hand wringing and wailing over politicization of the court on AM radio every day. As has been exactly the case with Sebellius.
BB
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Marc Thiesson must have read the same essay as he wrote a column that covered the same ground. Without acknowledging his source, though.
That’s quite an assumption.
As for the original post, I seem to recall a lot of hand wringing over Roe v. Wade.
Roe is a fine example. It was a naked enshrinement of liberal policy into imaginary constitutional rights. The conservative critique is based on the Constitution and principle. The liberal reasoning isn’t.
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And the hand wringing continues…
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