Bench Memos

NRO’s home for judicial news and analysis.

Charles Lane’s The Day Freedom Died


I finished over the weekend former Washington Post Supreme Court reporter (and now Post editorial writer) Charles Lane’s new book The Day Freedom Died:  The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction.  Lane provides a remarkably vivid and thorough account of a horrific episode of white-supremacist terrorism in Reconstruction-era Louisiana—the massacre of more than 60 black men in the town of Colfax on Easter Sunday (April 13) 1873—and of U.S. Attorney James Beckwith’s effort to use post-Civil War federal statutes to bring the perpetrators to justice.  The convictions that Beckwith obtained were nullified first by a ruling by Supreme Court justice Joseph P. Bradley, riding circuit as one of the two trial judges, and ultimately by the Supreme Court’s 1876 ruling in United States v. Cruikshank, a ruling that quickly led to the abandonment of Reconstruction and of the promise of federal protection for the elementary rights of blacks. Lane has been guest-blogging about his book on the Volokh Conspiracy, so I’ll refer readers to his posts setting forth his explanation of why the rulings were wrong (here and here) and honoring Beckwith’s heroic efforts. 


Lane’s account provides a concrete picture of the epic challenges and failures of the Reconstruction era.  Among the areas of particular interest to lawyers is his discussion (pp. 117-123) of the Supreme Court’s ruling in the Slaughterhouse Cases (rendered, coincidentally, one day after the Colfax Massacre occurred).  Lane explains that the lawyer challenging the slaughterhouse law was trying to undermine the Reconstruction governments, but that he may have won more by losing, as the Court, in rejecting his arguments, adopted a definition of the 14th Amendment’s privileges and immunities that was so narrow that it ended up creating serious obstacles for Beckwith’s prosecution.

Tags: Whelan

The Wisconsin Lesson


In the weekend edition of the Wall Street Journal, John Fund has an interesting piece on Wisconsin supreme court justice Louis Butler’s electoral defeat last week.  Some excerpts:

On Tuesday, for the first time in over four decades, Wisconsin voters turned out an incumbent justice of their state supreme court. The election showed that, given a clear choice, voters usually prefer a judicial conservative to one with an activist bent.

The Wisconsin Supreme Court certainly bent the rule of law over the past four years, as a 4-3 liberal majority became the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices. Thus the defeat of Justice Louis Butler at the hands of Burnett County Judge Michael Gableman has national implications.… Judge Butler’s defeat sends a signal that a judge who dramatically oversteps traditional boundaries can be brought to account….

Wisconsin is in many ways a liberal state – it hasn’t voted Republican at the presidential level in decades – but its electorate showed this week that it favors judicial restraint over activism. 

The Wisconsin election provides further evidence that broad swaths of the public favor judicial restraint over liberal judicial activism.  That’s true not only in state judicial elections but in presidential politics and in Senate elections—when the candidates make the effort to tee the issue up properly. 

Tags: Whelan


This Week in Liberal Judicial Activism—Week of April 7


Intellectual obscenity, two Reinhardts, and three Barketts

Apr. 71969—Justice Thurgood Marshall’s majority opinion in Stanley v. Georgia declares that the First Amendment forbids criminalizing the possession of concededly obscene material.  Marshall blithely distinguishes away the Court’s previous categorical statements that obscenity is not protected by the First Amendment.  Stanley, Marshall grandiosely proclaims, is asserting “the right to satisfy his intellectual and emotional needs in the privacy of his own home.”  Yep, that carefully captures what viewing obscenity is all about.  (Three justices, including Brennan, decline to join Marshall’s opinion and instead separately find a Fourth Amendment basis for vacating Stanley’s conviction.)
Apr. 82005—A split Ninth Circuit panel, in an opinion by notorious activist judge Stephen Reinhardt (see This Week entry for Mar. 27), rules in a habeas case (Musladin v. Lamarque) that under clearly established Supreme Court law a defendant on trial for murder was deprived of his right to a fair trial by an impartial jury when the trial judge permitted family members of the victim (or, as Reinhardt insists on referring to him in quotes, the “victim”) to wear buttons bearing the deceased’s photograph.  In 2006, a mere two months after oral argument, the Supreme Court (in Carey v. Musladin) unanimously reverses the Ninth Circuit. 
Apr. 92001—More Reinhardt.  A Ninth Circuit panel, in an opinion by Reinhardt, rules in Doe v. Otte that application of Alaska’s Sex Offender Registration Act (commonly termed a “Megan’s Law”) to those whose crimes were committed before enactment of the Act violates the constitutional bar on ex post facto punishments.  The Act requires sex offenders in the state to register with law-enforcement authorities, and it provides that a central registry of information about offenders will be made public.  The Ninth Circuit concludes that the Act imposes criminal punishment and therefore may not be applied retroactively.

On review (styled Smith v. Doe), the Supreme Court in March 2003 reverses the Ninth Circuit by a 6 to 3 vote (with Stevens, Ginsburg, and Breyer in dissent).  The Act, the Court determines, creates a regulatory scheme that is civil and nonpunitive.  In his 39th and final argument before the Supreme Court, the attorney for Alaska, a fellow by the name of John G. Roberts, Jr., marks his last victory as an advocate.

Apr. 121990—In Cross v. State, Florida chief justice Rosemary Barkett dissents from the Florida supreme court’s ruling that probable cause existed for an arrest.  After Cross consented to a search of her tote bag, police found a hard baseball-shaped object wrapped in brown tape inside a woman’s slip.  Having seen cocaine packaged in this manner on “hundreds of occasions” in their combined 20 years of law-enforcement experience, they then arrested Cross.  Barkett’s dissent incorporates the analysis of a lower court that did not even acknowledge, much less credit, the experience of the police officers.

2005—Sitting on the Eleventh Circuit (to which she was appointed by President Clinton in 1994), Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s en banc ruling (in Johnson v. Governor of Florida) that Florida’s felon-disenfranchisement law does not violate the Equal Protection Clause.  Barkett and another Clinton appointee also dissent from the ruling that the law does not violate the Voting Rights Act.

Apr. 132001—Judge Barkett issues a solo dissent from the Eleventh Circuit’s denial of rehearing en banc of a panel decision in Chandler v. Siegelman.  The panel, setting forth the complementary principles that public schools may neither sponsor nor censor student prayer, overturned a district court injunction barring a school from (as the panel put it) “‘permitting’ students to speak religiously in any sort of public context.”  Barkett asserts that the district court injunction properly barred “public student prayer”.

For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism

Leahy’s “Anti-Catholic” Smear


Last July, President Bush nominated federal district judge Robert J. Conrad to a putative North Carolina seat on the Fourth Circuit.  The ABA judicial-evaluations committee unanimously gave Conrad its highest rating of “well qualified,” and Conrad has the strong support of both North Carolina senators.  But nearly nine months after Conrad’s nomination, Senate Judiciary Committee chairman Pat Leahy has refused to afford Conrad a hearing.


At a committee meeting yesterday, Leahy tried to defend his obstruction by accusing Conrad of making “anti-Catholic comments about a nun.”  In fact, Conrad, himself a Catholic, had in 1999 criticized a nun for “the near total contempt [she] displayed for the Roman Catholic Church.”  In short, Conrad was defending the Catholic church from the anti-Catholic comments he believed the nun to have made.  It’s scurrilous for Leahy to accuse Conrad of being anti-Catholic, and it’s just further evidence that Leahy will stoop to ever new lows to obstruct judicial nominees.  

Tags: Whelan

Judge Posner’s How Judges Think—Part 7


My posts (parts 1, 2, 3, 4, 5 and 6) about Judge Posner’s How Judges Think have consisted heavily of my criticisms and disagreements.  That’s basically because they bear on Posner’s central arguments.  At the outset of this final (I think) post, I would like to make clear that there is much in Posner’s book that is interesting and insightful.  In particular, although (as stated in Part 2) I think that Posner falls far short of his stated goal of providing a descriptive model of judicial behavior, anyone interested in the topic will find his discussion worth reading.  There are also various collateral discussions that I haven’t touched on—modern legal academia, Justice Breyer’s Active Liberty, Justice Kennedy’s “moral vanguardism,” and the Court’s misuse of foreign legal materials, to name a few—that many readers will appreciate.


My overall assessment of How Judges Think, however, is decidedly negative.  Beyond the criticisms that I’ve already offered, I’ll add that the book is at least one thorough redraft short of being ready for publication.  Posner states in his acknowledgments section that he has “incorporated material” from nine previous articles of his, “though with much revision and amplification,” but the book reads like a hasty copy-and-paste compilation, with little attention to harmonious coherence.  Posner is indisputably brilliant and amazingly prolific, but brilliance and rigor, alas, do not always keep company.

Tags: Whelan


Judge Posner’s How Judges Think—Part 6


In my previous posts (parts 1, 2, 3, 4, and 5), I’ve addressed Judge Posner’s central arguments in How Judges Think.  In this post, I’d like to draw attention to a handful of lesser—but revealing—assertions that he makes:


1.  On the first page of his introduction, Posner refers to the “startling (to the naïve) right turn by the Supreme Court” in its 2006-2007 last term, a turn that “resulted from the replacement of a moderately conservative Justice (O’Connor) by an extremely conservative one (Alito).”  It’s bad enough that newspapers routinely use reductionist political labels to describe the Court and its justices.  I found it even more startling that an esteemed jurist would do so.  Except, of course, that I later discovered (as I discussed in Part 5) that Posner actually maintains that when justices decide most constitutional issues, they are merely imposing their political preferences (because Posner defines the concept of political preferences in an all-consuming manner)—and that anyone who thinks otherwise is deluded.  Given the fact that Posner reduces Supreme Court decisionmaking on most constitutional questions to mere politics, his resort to reductionist political labels is consistent.


But the particular political labels that Posner adopts don’t make sense, even within his scheme.  Let’s skip over Posner’s reference to the “startling (to the naïve) right turn” by the Court, as it’s not clear how sharp a turn Posner thinks the Court made.  (As I explain here, if crude political shorthands must be employed, the 2006-2007 term is best summarized as a small step towards the right—and towards the center.)  How can Posner label Justice Alito an “extremely conservative” justice?  Let’s assume, as Posner presumably does (and as I hope), that Alito’s general positions on constitutional law may, over time, largely comport with those of Justice Scalia.  As I discussed in Part 5 (5th paragraph), on the broad bulk of constitutional issues, the Scalia position is that the Constitution is substantively neutral and that the matter is left to the political processes for decision.  In a sensible system of reductionist political labeling (as I discuss in this essay), that position is moderate.  Even after one sprinkles in the much smaller number of instances in which Scalia would override the political processes, it’s difficult to see how Scalia would merit anything other than a label of moderate conservative—the label Posner mistakenly confers on O’Connor (who, among other things, voted to retain the radical abortion regime that the Court imposed in Roe).  Posner doesn’t offer a word of explanation for his mislabeling of Alito and of O’Connor, and it would seem that his labels merely signal that he finds his own positions closer to O’Connor’s than to Alito’s.


2.  Posner asserts that in his first two terms Chief Justice Roberts “demonstrated by his judicial votes and opinions that he aspires to remake significant areas of constitutional law.”  According to Posner, the “tension” between Roberts’s invocation of the umpire analogy at his confirmation hearing and “what he is doing as a Justice is a blow to Roberts’s reputation for candor and a further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings.” 


Posner’s characterization of Roberts’s first two terms is rank and conclusory hyperbole, and the tension that he posits, along with the supposed resulting “blow to Roberts’s reputation for candor,” is tendentious distortion.  As Posner recognizes, Roberts’s umpire analogy is legalist in nature.  If Roberts were to determine that previous umpires have misdefined the strike zone, it would be entirely consistent with his analogy for Roberts to strive to redefine it properly.  The tension is not between Roberts’s testimony and his performance, but between Roberts’s legalist understanding of judging and Posner’s pragmatism.


Posner’s curious and baseless attacks on Roberts and Alito invite attention to Posner’s discussion of the psychological theory of judicial behavior.  Might Posner resent the fact that his juniors have become his superiors?  Unfortunately, his brief discussion of the psychological theory does not address the possible phenomenon of SCOTUS envy.


3.  Posner asserts that “[m]ost judges who oppose abortion rights do so because of religious belief rather than because of a pragmatic assessment of such rights.”  This statement is remarkably sloppy.  First, Posner offers no empirical or even anecdotal support for it.  Second, Posner fails to make clear whether the phrase “oppose abortion rights” means merely “believe that the Constitution does not confer a right to abortion” (in which case, of course, the legislative process remains available to protect abortion) or means also “opposes the legislative conferral of abortion rights.”  (We can exclude a third possible meaning—“believes that the Constitution prohibits permissive abortion laws”—only because few if any judges have ever taken that position.)  Third, Posner presents a false dichotomy:  There are plenty of legalist reasons beyond “religious belief” or “a pragmatic assessment” to recognize that the Constitution does not confer a right to abortion—and not even Posner contends that judges can adopt legalism only out of “religious belief.”


4.  Posner asserts, in the context of discussing judicial confirmations, that “the Republican Party is more disciplined than the Democratic Party and therefore better able to organize opposition to a nominee.”  Posner offers no evidence for this startling assertion.  Nor does he confront the most obvious contrary data:  (a) Whereas Justices Ginsburg and Breyer received strong support from Republican senators and were confirmed by overwhelming majorities (96-3 and 87-9, respectively), Roberts and Alito encountered ardent opposition from Democratic senators and much closer vote margins (78-22 and 58-42, respectively).  (b) Senate Democrats have taken the unprecedented step of resorting to partisan use of the filibuster against President Bush’s lower-court nominees.  In 2003 and 2004, they succeeded in defeating some 20 cloture petitions on ten different nominees, five of whom were never ultimately confirmed.

I would have thought that the necessary intellectual temperament of a pragmatist would be empirically focused, skeptical of his own initial certitudes, and meticulous—not abstract, dogmatic, and sloppy. 

Tags: Whelan

Judge Posner’s How Judges Think—Part 5


Chapter 10 of Judge Posner’s How Judges Think is titled “The Supreme Court Is a Political Court,” and Posner argues in favor of the proposition in the chapter title.  But in so doing, he renders the seemingly significant and surprising proposition entirely vacuous—devoid of any meaningful content.  Consider:


Posner argues that the Supreme Court is inescapably a political court when it deals with constitutional issues.  He intertwines two arguments.  The first argument is that a constitution “deal[s] with fundamental issues” that “are political issues:  issues about political governance, political values, political rights, and political power.”  (Emphasis in original.)   “Political issues by definition,” he asserts, “cannot be referred to a neutral expert for resolution.”  This argument is simply incoherent.  By the same illogic, Posner could argue, say, that legal questions dealing with Department of Agriculture manure regulations are manure issues—issues about manure governance, manure values, manure rights, and manure power—and that manure issues by definition cannot be referred to a non-manure expert for resolution.


Posner’s second argument is coherent, but doesn’t come anywhere close to establishing (either by itself or together with his first argument) his proposition that the court is, in ordinary parlance, necessarily a “political” court when it deals with constitutional issues.  Posner argues that constitutional provisions “tend … to be both old and vague” and that the “political preferences [of justices] are [therefore] likely to determine how they vote.”  There is, of course, always a danger that justices will indulge their political preferences.  That danger is compounded when justices subscribe to a theory of constitutional decisionmaking (e.g., living constitutionalism) that invites them to indulge those political preferences, and, as I’ve extensively documented, it would seem that that danger has frequently been realized.  But Posner offers no evidence for his assertion that each justice’s political preferences are “likely” to determine how that justice votes, nor does he recognize that even the threshold of likelihood falls short of establishing that political decisionmaking is inevitable.


It gets worse.  Later in the chapter, Posner asserts that “discrepancies between [a justice’s] personal and judicial positions usually concern rather trivial issues, where the judicial position may be supporting a more important, though not necessarily a less personal, agenda of the Justice.”  Further, Posner maintains, a justice’s “doctrinal beliefs [on constitutional meaning] are as personal or political as the desire for a particular outcome; they are not the products of submission to the compulsion of the constitutional text or of some other conventional source of legal guidance (though the judge many think they are) because there are no such compulsions in the cases that I have been discussing” (i.e., cases that Posner considers typical of constitutional cases).  (Emphasis added.)  Where there are discrepancies between a justice’s personal and judicial positions, the justice is unconsciously “trad[ing] a minor preference for a major one.”


It simply isn’t true that discrepancies between, say, Justice Scalia’s personal and judicial positions “usually concern rather trivial issues.”  Take the issue of abortion.  Let’s assume, as Posner does, that Scalia’s personal position would favor substantial restrictions on abortion.  Scalia, in arguing that Roe v. Wade was wrongly decided and should be overturned, has never taken the position that the Constitution should be construed to prohibit permissive abortion laws.  On the contrary, his position is that the Constitution is substantively neutral on the question of abortion—and that state legislators should generally be free to permit or proscribe it.  Of course, it is true that Scalia’s judicial position, if adopted, would make it possible for a legislature to implement his putative personal views.   But that does not alter the fact that there is a huge gap between his personal and judicial positions.  (I develop this elementary, but somehow widely misunderstood, point in this essay.)  Ditto for Scalia on an endless list of issues like the death penalty, pornography, criminal procedure, and same-sex marriage.


More importantly, Posner’s dogma that a doctrinal position on a vague constitutional provision is necessarily “as personal or political as the desire for a particular outcome” renders tautological and meaningless his proposition that the Court is inescapably a “political” court (as well as his taunt that only “the self-deluded believe that ‘ideological commitments’ play a significantly smaller role in the decisions of legalists … than in those of” other judges).  For whenever a legalist’s position is determined by legalist materials, Posner’s response is that the legalist’s adoption of his legalist approach was itself a political (or ideological) decision.


At bottom, Posner’s charge that the Supreme Court is necessarily a “political” court is empty and deceptive wordplay.


(Here are my previous posts in this series:  Parts 1, 2, 3, and 4.)

Tags: Whelan

Judicial Showdown -- and a Nominee Advances


As Senator Arlen Specter promised, Senate Republicans put pressure on Judiciary Chairman Patrick Leahy at today’s committee meeting.  Specter and his colleagues detailed the unprecedented level of delay in advancing nominations, and pointed out that some pending nominees clearly meet Leahy’s criteria for moving the nominations (specifically home-state Senator support and a judicial emergency).  The CfJ blog has more here.

Perhaps due to the GOP Senators’ hard line, the Judiciary Committee did approve one nomination today: Catharina Haynes for the U.S. Court of Appeals for the Fifth Circuit.

Judge Posner’s How Judges Think—Part 4


Judge Posner’s primary argument for judicial pragmatism is that “there is no alternative” to it.  As I discussed in Part 3, I am not persuaded that Posner has demonstrated the inadequacy of legalism. 


Posner’s secondary argument for judicial pragmatism is that it produces “better consequences” than legalism.  I am not particularly interested in contesting Posner on this ground.  As Posner suggests, it would be curious to rest the defense of legalism on pragmatist grounds.  At bottom, the only legitimate test of a legalist approach is whether it produces legally right results, not whether those results are, in the judgment of some grand social engineer, better for society than what pragmatism would yield.


That said, I would like to call into question briefly whether pragmatism can really be expected to yield the favorable consequences that Posner claims.  (I certainly don’t claim any particular familiarity with the academic literature that must exist on this point, or on the broader competition between legalism and pragmatism, and I have no illusion that my brief observations are original—it would be troubling if they were—or complete.) 


First, as a simple matter of institutional competence, I question whether the typical federal judge is able to weigh the relative social consequences of different possible rulings.  I don’t mean this comment to slight the intellect or ability of judges; I mean, rather, to recognize the inevitable narrowness of their training and the limited empirical perspective that they have on the real world.  It will be rare that any judge will have the remarkable breadth of learning and undeniable brilliance that Posner has, and, as my next couple posts will suggest, it’s far from clear that even a Posner has the makings of a competent pragmatist.


Second, as Posner acknowledges, different judges “will weigh consequences differently depending on a judge’s background, temperament, training, experience, and ideology”—and, of course, intellect.  Posner’s criticism of Justice Breyer (in a different part of his book) is particularly telling, as Breyer, an avowed pragmatist and an extremely bright man, would seem to be Posner’s closest intellectual soulmate in the federal judiciary:


“[L]aw” for Breyer, or at least constitutional law, seems more his own creation than a body of thought external to his personal views.  I am tempted to describe him as a bricoleur—one who uses “the instruments he finds at his disposition around him, … which had not been especially conceived with an eye to the operation for which they are to be used and to which one tries by trial and error to adapt them, not hesitating to change them whenever it appears necessary.”  [Quoting Derrida]  …  Such eclecticism leaves a judge with complete freedom to indulge his political instincts—liberal, conservative, or moderate—as it can accommodate any result that a judge might want to reach for reasons he might be unwilling to acknowledge publicly, such as a visceral dislike for capital punishment, abortion, affirmative action, or religion in the public sphere.


Posner calls Breyer an “intermittent pragmatist whose pragmatism is heavily leavened with liberal political commitments,” but it is difficult to see how Posner’s criticisms of Breyer don’t apply to Posner himself and to any pragmatist.


Third, Posner claims that self-conscious pragmatists “are less likely to be drunk with power if they realize they are exercise discretion” than legalists are.  This wishful thinking rests on mere assertion.  It also contradicts Posner’s interest earlier in the book on the external and internal constraints on judges:  within Posner’s own scheme, it makes no sense that a lessening of constraints would make a judge more constrained.  Curiously, whereas Posner had previously emphasized how weak the remaining constraints on federal judges are, he here plays up their significance.


In my next posts, I intend to turn to some sharper criticisms of Posner’s book.  (Here are my previous posts:  Parts 1, 2, and 3.)

Tags: Whelan

Judge Posner’s How Judges Think—Part 3


Judge Posner’s argument that judges should be Posnerian pragmatists hinges on his claim that “the materials of legalist decision making fail to generate acceptable answers to all the legal questions that American judges are required to decide.” This claim, as I understand it, in turn rests on three underlying contentions:  (1) the interpretive rules that legalists (or, if you prefer, formalists) adopt cannot in fact “be derived by reasoning from agreed-upon premises” but instead depend on “choices that entail the exercise of legislative-like judicial discretion”; (2) even these interpretive rules will leave lots of cases without “right” answers; and (3) these interpretive rules will yield some “right” answers that we reject as unacceptable.  Let me address these one by one.


First:  I readily concede that the interpretive rules that legalists adopt cannot all be derived, with mathematical precision, “by reasoning from agreed-upon premises.” Given that academic philosophers might have difficulty agreeing, say, on premises from which one could reason to the conclusion that Judge Posner really exists, the standard that Posner would hold legalists to seems an impossible one to reach.  But is that the proper standard?  And is the exercise of freewheeling “legislative-like judicial discretion” the only alternative?  Why isn’t it coherent for legalists to advocate for particular interpretive rules on the grounds that those rules are most faithful to text and history, or to separation-of-powers principles, or to the properly limited role of the judiciary?  I don’t doubt that “discretion” will be involved in determining which interpretive rule is best, and I don’t doubt that there will sometimes be room for reasonable disagreement.  But I don’t think that the result is open-ended “legislative-like judicial discretion,” and I don’t see why the set of interpretive rules available to legalists needs to be as limited as Posner maintains.


Second:  Only after the full set of interpretive rules available to the legalist is established is it possible to try to demonstrate that those rules would leave cases without “right” answers.  Given the availability of default canons of construction, it’s not obvious to me that there would be such cases.  (At one point, Posner seems to argue that because deferential appellate review might leave in place opposite rulings below, “it must be that legalism … countenances a great deal of error.”  But surely he doesn’t mean to imply that legalists must support de novo appellate review of all questions.  The fact that there is a right appellate answer in the cases he posits—uphold both rulings—means that legalism is determinate in those cases.)


Third:  Posner offers a laundry list of unacceptable results that would flow from “strict construction.”  An aside:  I’m not aware that any legalist these days argues for strict construction.  As Justice Scalia has put it (in A Matter of Interpretation), “I am not a strict constructionist, and no one ought to be.…  A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”  It’s rather strange that Posner’s refutation of legalism has strict construction front and center, and it’s also surprising that he confuses “original meaning” with the “original understanding” variant of originalism. 


Back to the point:  Let’s assume that each legalist approach, if it were adopted today and employed to overturn contrary precedents, would yield some results that we find unacceptable (and let’s set aside any questions about what Posner’s standard of acceptability is).  Why would that amount to an indictment of legalism?  Our perception of acceptability is surely path-dependent:  the existence of wrong, but long-entrenched, precedents makes us more likely to see their reversal as problematic.  But that fact says nothing about the validity of a legalist approach ex ante (nor about the world that would have resulted if that approach had been consistently followed).  Nor is it obvious why legalists should be compelled to seek the reversal of all wrong precedents.  As Scalia has explained, “Originalism, like any other theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis; it cannot remake the world anew.…  Where originalism will make a difference is not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpatious new ones.”


Bottom line:  I’m not persuaded that Posner has demonstrated the inadequacy of legalism.

Tags: Whelan

Senate Shutdown over Judicial Nominees?


According to this Wall Street Journal editorial today, Senator Specter is threatening to shut down the Senate’s proceedings if the Democratic obstruction of judicial nominees continues.  As the editorial puts it, and as Specter clearly understands, the “only way to get [Democrats] to move is to force them to pay a political price for their obstructionism.” 


Kudos to Specter for his continued leadership.

Tags: Whelan

Judge Posner’s How Judges Think—Part 2


In How Judges Think, does Judge Posner succeed in his stated goal of providing a “cogent, unified, realistic, and appropriately eclectic account of how judges actually arrive at their decisions in nonroutine cases”?  I certainly don’t think so.  As Posner himself acknowledges, his “nine overstated or incomplete” theories of judicial behavior—attitudinal, strategic, sociological, psychological, economic, organizational, pragmatic, phenomenological, and legalistic—“make for an unwieldy analytic apparatus.”  That analytic apparatus becomes even more unwieldy when Posner adds in his insights on the various factors that motivate and constrain judicial decisionmaking.  The fact that Posner’s approach is highly theoretical and abstract, not empirical, compounds the problem.  In the end, the reader is left with a hodgepodge of considerations—an interesting hodgepodge, but a hodgepodge nonetheless—that might or might not affect how various judges decide various cases. 


I don’t mean to suggest that Posner should have been able to do better.  Instead, it seems to me that his stated goal was wildly unrealistic.  What we have is not a book that sheds any particular insights about how judges actually think, but rather a book that, in the end, is really much more about how Judge Posner thinks judges should think.

Tags: Whelan

Judge Posner’s How Judges Think—Part 1


I’ve recently read (though I may still be digesting) Seventh Circuit judge Richard A. Posner’s newest book, How Judges Think.  I hope to offer some commentary on the book in a series of posts in coming days.  In this post, I aim to provide a neutral summary of Posner’s central arguments.  (The book—I have the uncorrected-page-proofs version—runs 377 pages, so my brief summary is necessarily selective.)


Posner’s stated goal is to offer a “cogent, unified, realistic, and appropriately eclectic account of how judges actually arrive at their decisions in nonroutine cases”—that is, in those “rather frequent” instances in which judges can’t “just apply rules.”  In developing his “basic model,” Posner presents nine “overstated or incomplete” theories of judicial behavior; explores various factors (such as power, respect, leisure, and the intrinsic satisfaction of the judicial craft) that motivate judges as “labor-market participants”; and discusses the role that preconceptions and ideological world views play in judicial decisionmaking.


In elaborating his model, Posner looks at “external constraints” on federal judges (such as desire for promotion, concern for reputation, and the possibility of political retribution) and finds those constraints to be weak.  Nor does he find significant “internal constraints” on judging.  Legalism—the concept that “law is distinct from politics and policy [and] is the realm of rules, rights, and principles”—gives judicial decisionmaking the false “appearance of judicial rigor.”  But, Posner argues, the interpretive rules that various versions of legalism (strict construction, textualism, originalism) adopt cannot “be derived by reasoning from agreed-upon premises” but instead depend on “choices that entail the exercise of legislative-like judicial discretion.” 


Pragmatic adjudication, which has as its core “heightened judicial concern for consequences and thus a disposition to base [judicial] policy judgments on them rather than on conceptualisms and generalities,” is therefore inescapable.  “Sensible pragmatic judges,” unlike their shortsighted brethren, will consider “systemic, including institutional consequences.”  They, in contrast to legalists, are “less interested in whether the facts of a case bring it within the semantic scope of the rule agreed to govern the case than in what the purpose of the rule is—what consequences it seeks to induce or block—and how that purpose, those consequences, would be affected by deciding the case one way or the other.”  Pragmatism won’t “grind[] out certifiably correct answers to legal questions”; it “sets no higher aspiration for the judge than that his decisions be reasonable in light of the warring interests in the cases, although a reasonable decision is not necessarily a ‘right’ one.”  Pragmatism can’t be banished, and efforts to banish it would “make judges even less candid than they are” and would inadvertently give greater play to judges’ personal and political preconceptions in cases involving discretion.


The Supreme Court, Posner argues, is a “political” court, especially when deciding constitutional issues, because a constitution deals with “political issues:  issues about political governance, political rights, and political power.”  “Political issues by definition cannot be referred to a neutral expert for resolution.”  The Court is “awash in an ocean of discretion,” as illustrated by the issue in Roper v. Simmons—whether execution of murderers who were 17 at the time they committed murder violates the Eighth Amendment.


In my coming posts, I’ll offer some critical commentary on these and related arguments.

Tags: Whelan

Native Sons


Today the Supreme Court decided one of its rare cases of original jurisdiction, a suit tried in the Court itself (though with the arguments mostly filtered through the work of a “special master” appointed by the justices).  In New Jersey v. Delaware, if I may oversimplify the issues, the Court decided that Delaware’s sovereign power over the uses of the Delaware River extends right up to the New Jersey shore, and that Delaware may therefore veto the construction of certain industrial facilities jutting into the river that New Jersey wishes to permit on its shore.

I am not one to impute to the justices a spirit of hometown favoritism for its own sake.  But I do find it interesting that the only dissenters in this 6-2 case are the two justices–Scalia and Alito–born in the Garden State.

Or perhaps I noticed this as a gleeful native son of the First State myself.

Professor Rosen and Justice Scalia


Over at The Corner, Ramesh remarks on a TNR piece by Jeffrey Rosen, who takes the resignation of Eliot Spitzer as a sign that, contrary to the predictions of Justice Antonin Scalia in Lawrence v. Texas (2003), “[m]orals legislation is alive and well.”  I agree with everything Ramesh says about how Rosen has misstated the point Justice Scalia was trying to make.  But I would add that Rosen makes the categorical error of supposing that the resignation of a public official, a form of “old-fashioned shaming punishment,” in Rosen’s own words, has anything to do with the future survival, as a legal or constitutional matter, of criminal laws against “victimless” moral offenses.

Steven M. Teles’s The Rise of the Conservative Legal Movement


In The Rise of the Conservative Legal Movement, Steven M. Teles, a professor of public policy at the University of Maryland, explains “how the conservative legal movement, outsmarted and undermanned in the 1970s, became the sophisticated and deeply organized network of today.”  Based heavily on his interviews with movement leaders and on his review of internal documents of key organizations, the book is a sober and sophisticated work of political science.  But, far from being jargon-laden, it’s crisply and clearly written and provides a very interesting read.  It’s not every book that bears favorable blurbs from folks spanning the political spectrum—from Al Gore and Yale law professor Jack Balkin to AEI president Christopher DeMuth and Princeton professor Robert P. George—but Teles’s book deserves the praise.


Orin Kerr at the Volokh Conspiracy has provided a good summary of the book, so I won’t provide an extended summary here.  Readers who will enjoy the book include those who have a particular interest in the subjects and entities that are highlighted—(1) the law-and-economics movement, including Richard Posner, Henry Manne, the Olin Foundation and the Olin programs, and George Mason University School of Law; (2) the Federalist Society (“without a doubt, the most vigorous, durable, and well-ordered organization to emerge from [the] rethinking of modern conservatism’s political strategy”); and (3) conservative public interest law, especially the Institute for Justice and the Center for Individual Rights.  But the book also offers important insights for anyone who aims to think strategically about “large-scale political change,” conservative or otherwise.  

Tags: Whelan

Senator Hatch Sets the Record Straight


On NRO’s home page today is a fine piece by Senator Orrin Hatch (for whom I worked from 1992 to 1995) putting in useful context the current state of affairs on judicial confirmations.  Here’s an excerpt:


Democratic leaders are fond of saying that they will not treat President Bush’s nominees as the Republicans treated President Clinton’s nominees. Indeed, they are not. In the last ten months, for example, the Judiciary Committee has held a hearing on just three appeals-court nominees. During the same period under President Clinton, the Judiciary Committee held a hearing on 11 nominees.

When I chaired the Judiciary Committee during the Clinton presidency, we held no fewer than ten hearings that included more than one appeals court nominee. Democrats have not held a single one when they controlled this body under President Bush.

When I chaired the Judiciary Committee, Democrats complained every time a nomination hearing did not include an appeals-court nominee. Under Democratic leadership, the Judiciary Committee has held nearly a dozen hearings on President Bush’s judicial picks, the latest just last month, that did not include an appeals-court nominee.

The picture is the same when we look past the Judiciary Committee to the Senate floor. Under Presidents Clinton, Bush 41, and Reagan, the opposition-controlled Senate confirmed an average of 75 district-court and 17 appeals-court nominees during the president’s final two years in office. So far in the 110th Congress, we have confirmed 31 district-court and just six appeals-court nominees for President Bush. Simply meeting the historical average will require confirming 44 district-court and nine appeals-court nominees in the next several months. If anyone believes that will happen, I have some ocean-front property in Utah’s desert I would like to sell him.


Read the whole piece.

Tags: Whelan

This Week in Liberal Judicial Activism—Week of March 31


Evolving standards, Douglas’s arrival, and Blackmun’s departure: 

Mar. 31     1958—In Trop v. Dulles, the Supreme Court, by a 5 to 4 vote, invalidates the sentence of forfeiture of citizenship imposed on a soldier who deserted during wartime.  Illustrating two of the gimmicks of the liberal judicial activist—abstraction far removed from the text of the Constitution and invocation of the Living Constitution—Chief Justice Warren’s plurality opinion declares that the “basic concept underlying the Eighth Amendment[’s bar on cruel and unusual punishments] is nothing less than the dignity of man” and that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  (Somehow those “evolving standards” are seldom broadly reflected in actual legislation.)    

Justice Frankfurter’s dissent for four justices points out that wartime desertion is a capital offense “and has been so from the first year of independence.”  Therefore, “to insist that denationalization is ‘cruel and unusual’ punishment is to stretch that concept beyond the breaking point.”  Asks Frankfurter rhetorically:  “Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death?”  Even far more in recent decades than in 1958, the answer to Frankfurter’s question is plainly yes. 

Apr. 4        1939—Two weeks after President Roosevelt nominates SEC chairman (and former Yale law professor) William O. Douglas to the Supreme Court, the Senate confirms the nomination by a 62-4 vote.  On the Court from 1939 until 1975, Douglas is the longest-serving justice in history.

In his 2003 New Republic review of a biography of Douglas (Wild Bill:  The Legend and Life of William O. Douglas, by Bruce Allen Murphy), Seventh Circuit judge Richard A. Posner offers this succinct summary of Douglas’s judicial career:  “For Douglas, law was merely politics.”  Here’s Posner’s colorful fuller assessment:  “Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice who regularly left the Court for his summer vacation weeks before the term ended.  Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless—at once a big spender, a tightwad, and a sponge—who, while he was serving as a justice, received a substantial salary from a foundation established and controlled by a shady Las Vegas businessman.” 

As Posner acknowledges, one can, of course, “be a bad person and a good judge, just as one can be a good person and a bad judge.”  By the evidence, Douglas was both a terrible person and a terrible judge.


Apr. 6        1994—Justice Harry Blackmun announces his impending retirement after 24 years on the Court.  His majority opinion in Roe v. Wade (1973) is rivaled only by Dred Scott as the worst opinion in Supreme Court history.  As one of Blackmun’s own former clerks, Edward Lazarus (who described himself as “someone utterly committed to the right to choose [abortion]” and as “someone who loved Roe’s author like a grandfather”), aptly put it, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.”  Also from Lazarus:  “Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.”  (My June 2005 Senate testimony (in parts 1 and 2) presents additional criticisms, including from other supporters of legal abortion, and explains why abortion policy needs to be restored to its rightful place in the democratic political processes.)  


For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism

At Ease


Earlier this week retired Justice Sandra Day O’Connor was honored at Virginia Military Institute with the Harry F. Byrd, Jr.* Public Service Medal.  They sure know how to put on a ceremonial occasion at VMI, with the snappy uniforms, the honor guard, the flags and salutes.  But see photo number 6 in this slide show at The Roanoke Times website for a candid response by the cadets to the speech given by Justice O’Connor.  Ouch.

My question is, when will it be Justice Clarence Thomas’s turn?  Thomas is alone among the justices in actually having a connection to VMI.  He recused himself from U.S. v. Virginia, the 1995 case that forced VMI to admit women, because his son was attending the Institute at the time.  And I’ll bet he’d give a speech that keeps the “Keydets” awake.

*(Note this is Byrd junior.  Harry F. Byrd, Sr. was a staunch defender of southern racial segregation.  His son and successor as U.S. senator was in VMI’s class of 1935, hence the medal.)

How to Win World Favor


What “bring[s] America into total and utter contempt around the world”?  What American practice “is regarded almost universally outside the U.S. with a high degree of disfavor”?  According to this New York Times article, the answer is … large jury awards of punitive damages.


For the many Americans, especially on the Left, for whom pleasing supposed world sensibilities is a high priority, it’s clearly time to press for serious reform, or abolition, of punitive damages. 

Tags: Whelan


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