Bench Memos

NRO’s home for judicial news and analysis.

Obama to D.C. kids: No hope for you!


A few days ago, when Sen. Barack Obama sketched his (flawed) proposal for a scaled-back version of President Bush’s Faith-Based Initiative, he suggested an understanding of the First Amendment’s no-establishment rule that, while imperfect (he seems to believe, for example, that the Constitution requires religious institutions to give up their right to hire-for-mission if they participate in publicly funded social-welfare programs), represents a welcome improvement upon the strict, no-aid-separationist thinking that, for too long, undermined reasonable efforts of governments to support the good work – the eminently public work – of parochial and religious schools. Indeed, the speech could have been taken as providing further support for the theory, even the hope, that Sen. Obama does not share the knee-jerk hostility to school-choice that so animates many of the most powerful interests in the Democratic coalition. After all, in February, Obama had hinted, tantalizingly, that he was open to voucher-experiments.

Not so fast! Even his much remarked “move to the center” has limits. The teacher-unions can rest easy. Sen. Obama has now made it clear, in a recent speech to the American Federation of Teachers, that he opposes school choice. Trotting out the old canard about “draining resources from the public schools” – as if the problem in America’s failing public schools is a shortage of funds – he dismissed as “tired rhetoric” the powerful, hopeful advocacy of those who have struggled to bring educational opportunities to low-income children, competition to public education, and religious freedom to all. Even the D.C. Opportunity Scholarship program, which enjoys bipartisan support – particularly from African-Americans in the District, who are paying the price for the Democrats’ willingness to pander – has lost Obama’s support. The “Audacity of Hope”? Try “The Unbearable Sameness of Disappointment.”

School choice, properly understood and designed, is a matter of simple justice. One might have expected that Sen. Obama would appreciate this, and that a candidate who is willing to buck the base on the death penalty and gun ownership might also be willing to let low-income kids in the District of Columbia benefit from the options that middle-class people in the suburbs take for granted. No such luck.

Friendly Fire on Obama on Judges


In a lengthy and wothwhile post on Slate last week, two Obama backers lament their man’s rhetoric on the judiciary. I regard their complaints as good news; may their man go from rhetorical weakness to weakness, I say. But Doug Kendall and Dahlia Lithwick are not pleased. They assert that Obama has over the last few weeks “tugged” the First, Second, Fourth, and Eighth Amendments to the center — which means to the right of where they think those texts should be “tugged”. The Slate writers do not question Obama’s political judgment. They recognize that in any campaign “political expedien[ce]” exacts a toll. They also recognize that some of the “rightward drift” has long been part of Obama’s “unorthodox constitutional thinking.” They specifically cite here Obama’s stance on capital punishment.

Kendall and Lithwick are, in fact, not much interested in this or that case result. The rightward drift they lament is “in the way progressive candidates” — such as Barack Obama — “should talk about judging and the Supreme Court.” They worry that Obama’s stated judicial philosophy represents a startling and unfortunate concession to McCain and to judicial conservatives generally. In this they are half right: Obama has indeed accepted the conservative way of talking about judges and judging. But this is neither politically nor philosophically unfortunate.

Basically, Obama has said that almost every single case that the Supreme Court decides can be decided by conventional legal reasoning about uncontroversial legal source materials. So far, Obama sounds just like John Roberts at his confirmation hearings: legal craft sans ideology can and should take the judge all the way home. Of course, McCain holds up Roberts as his ideal judge; Obama famously voted against confirming the present Chief Justice. The difference-make for Obama is his claim that in a very small number of cases, maybe in only one out of a hundred (no more that once each Supreme Court term), a Justice must rely upon “empathy” or personal values extrinsic to the legal materials to reach the result that Obama thinks is right.

The authors correctly see this (admittedly, rare) way of deciding cases for what it is: elitism. They rightly say that voters know it: “Voters see ["empathy"] as code for ‘latte-sipping, out-of-touch, smarty-pants elitism’”. Just so: the only difference between what Obama wants in a Justice and what McCain wants in a Justice is that Obama wants a judge who thinks the way he does about intolerant blue-collar underachievers who cling to guns and God — but who acts on that basis only only once a year. This stance is, I dare say, intrinsically very odd. It is also guaranteed to be unpopular. No surprise, then, Kendall and Lithwick report that 69 percent of Americans agree with McCain on judges, while just 41 percent agree with Obama. (Which means, I guess, that 10 percent of us agree with both. Go figure.)

The authors urge Obama to throw overboard all the conservative baggage about judging. There is no need or cause, they say, to describe the occasional decisional difference maker as “empathy”, much less as the judge’s personal values. No need, either, to concede that narrow craft resolves almost every case. They deny any such division or opposition between law and values. They assert that all the values a progressive judge needs — “civil liberties, civil rights, …equal access to courts and justice” — are already right there, in the law. They are “enshrined in the Constitution.” That is why judges can and should enforce them. Not because these are (as they say) “tender, liberal values” which Obama wants “judges to share” with him, but because the Framers put them in the fundamental law itself.

Kendall and Lithwick astutely describe this approach as one which “marr[ies] method to results, rather than divorcing these concepts”. They think it is the key to mobilizing progressives behind Obama.

Kendall and Lithwick may well be right: “progressives” will press something like this bracing rhetorical regimen upon Obama until he accepts it. But there is great risk to him in doing so. Many Americans — including centrist voters unsure of their course come November — will rightly wonder about the integrity of a Harvard Law Review President and constitutional law professor who flips and flops on judges. Obama may have to wager, in other words, the pearl of greatest price: his so-assiduously cultivated image of himself as a man of unsullied principle.


Egg On My Face This Time


Professional and personal peregrinations have hampered my blogging of late, but I should take a moment at this, my first opportunity, to note that I was simply negligent in my recent comments on the Supreme Court’s rules regarding petitions for rehearing.  As a couple of correspondents wrote to correct me, the Court explicitly says in rule 44.1 that “[a] petition for rehearing . . . will not be granted except by a majority of the Court, at the instance of a Justice who concurred in the judgment or decision.”  In answering Andy McCarthy’s query about this eleven days ago, I just let my eyes pass over that line in the rules without taking it in.  My thanks to my sharper-eyed colleages.

On Capitol Hill Today...


At 2 pm Senator Specter will convene a “Forum on Judicial Nominations”. The central concern of the hearing is not in fact nominations, but confirmations — or the lack thereof during the year and a half of this Democratic Congress. Specter will call the meeting to order in Russell 385, and give a brief opening statement. Each Senator present will have a chance to speak for a few minutes. The witnesses include Professor John McGinnis of Northwestern Law School and Steve Rutkus of the Congressional Research Service.

This Week in Liberal Judicial Activism—Week of July 14


Obscenity, economic obtuseness, and how, and how not to, replace bad judges:
July 141983—In a separate concurring opinion (in State v. Hunt), Judge Martha Craig Daughtrey of the Tennessee Court of Criminal Appeals offers her view that the Tennessee constitution is best read as protecting obscenity.  Daughtrey recognizes, alas, that the state supreme court has rejected her reading and foreclosed the path she would pursue if the question were “open for me to decide.”  Ten years later, President Clinton appoints Daughtrey to the Sixth Circuit.

2005—By a vote of 4 to 3, the Wisconsin supreme court, in an opinion by chief justice Shirley S. Abrahamson, rules (in Ferdon v. Wisconsin Patients Compensation Fund) that a statutory cap on noneconomic damages in medical-malpractice cases violates the state constitutional guarantee of equal protection (which supposedly derives from the declaration in the state constitution that “All people are born equally free and independent”).  Purporting to apply deferential rational-basis review, the majority concludes that the cap is not rationally related to the legislative objective of lowering malpractice-insurance premiums.  The rational connection between caps on noneconomic damages and lower premiums ought to be obvious.  Further, the dissenters complain, the majority “ignore[s] the mountain of evidence supporting the effectiveness of caps.”

July 152005—More mischief from the Wisconsin supreme court.  This time, the same four-justice majority as in Ferdon (see This Week for July 14, 2005), in an opinion by associate justice Louis B. Butler Jr., rules in Thomas v. Mallett that the “risk-contribution theory”—which essentially shifts the burden of proof on key issues from the plaintiff to defendants—applies in a product-liability action against manufacturers of lead pigment.  As the dissent puts it, the “end result is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.” 

In April 2008, Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat Butler’s bid to remain on the court.

July 201990—After nearly 34 years of liberal judicial activism on the Supreme Court, Justice William J. Brennan, Jr. announces his retirement.  As Jan Crawford Greenburg describes it in Supreme Conflict, “For conservatives, Brennan’s retirement gave George H.W. Bush the chance of a lifetime.…  It was that rare moment when a conservative president was positioned to replace a liberal giant.…  It would give conservatives a dramatic opportunity to cement their majority and firmly take ideological control of the Court.”  But “the president did not want the kind of bruising fight over the Supreme Court that Reagan was willing to endure.”  Five days later President Bush nominates … David H. Souter to fill Brennan’s seat.

For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism


Stuart Taylor on Who’s Out of the Mainstream


In his weekly National Journal column (currently available here), Stuart Taylor takes on a crazed New York Times editorial (pardon the redundancy) on the Court’s recent term as well as a badly misguided E.J. Dionne essay (which Jonathan Adler and I addressed and which somehow ended up being published both by the New Republic and the Washington Post). 


As Taylor points out in dry understatement, if one must resort to crude political terms to describe the justices, “Roberts and Alito are ‘far-right’ [the Times editorial’s label] and ‘radical’ (as Times columnist Frank Rich has called them) only to people who are themselves more than a little bit to the left on the public opinion spectrum.”  Further, “it’s misleading to brand as ‘far-right’ and ‘radical’ positions that in fact are more liberal than, or near the center of, mainstream public opinion.”

Tags: Whelan

Re: Short a Fact or Two


Catching up from my time away (before I head out again), I’d like to follow up on Matt’s posts (here and here) last week about the Supreme Court’s and the parties’ failure in Kennedy v. Louisiana to take note of a 2006 law authorizing the imposition of the death penalty in military prosecutions for the crime of raping a child.  My prediction:  Justice Kennedy will tweak his majority opinion to note the law and to dismiss its significance, perhaps in a way that obscures from future readers the fact that any change was ever made.  Never mind that the enactment of the law undercuts his analysis.


I base this prediction on my perception that Kennedy would not tolerate retaining a demonstrable factual error in his opinion, especially not one noted in the New York Times.  Massive jurisprudential errors, gross misreadings of the Constitution, mischaracterizations of precedent, and illogical reasoning—those are okay with Kennedy because he can always find cover (and they’re necessary if Kennedy is going to be Kennedy).  But a publicly known factual error?  Why, that might undermine what Kennedy imagines to be (as he and his co-authors inanely proclaimed in Planned Parenthood v. Casey—see This Week for June 29, 1992) the American people’s faith in the Court’s “authority to decide their constitutional cases and speak before all others for their constitutional ideals.”

Tags: Whelan

The Daringly Heterodox Barack Obama?


In this recent essay, FindLaw columnist Edward Lazarus argues that Barack Obama’s “reactions to [the Supreme Court’s opinions barring the death penalty for child rapists (Kennedy v. Louisiana) and striking down the D.C. handgun ban (District of Columbia v. Heller)] have rendered predictions as to what kind of Justices he might appoint much more of a guessing game than one might have previously thought.”  Oh, really?  Let’s examine Lazarus’s argument:


1.  Lazarus starts by overstating Obama’s reactions to these cases.  Lazarus claims that Obama “sharply criticized” the decision in Kennedy v. Louisiana.  Lazarus doesn’t quote, or link to, Obama’s supposed criticism.  What I’ve found (in a quick search) is Obama’s statement that the death penalty “should be applied in very narrow circumstances for the most egregious of crimes,” that “the rape of a small child, 6 or 8 years old, is a heinous crime,” that it would have been fine if the Court had “constrain[ed] the abilities of states to do this [permit juries to sentence child rapists to death] in a careful and appropriate way,” but that the Court “basically had a blanket prohibition and I disagree with that decision.”  That certainly counts as disagreement, but it’s hardly sharp criticism.


Lazarus says that Obama “fully endorsed the Court’s unprecedented (and ‘conservative’) reading of the Second Amendment as including an individual right to bear arms (as opposed to merely a right to do so as part of a state militia).”  Well, yes, so far as that carefully couched assertion goes, but … Obama did not agree that the D.C. handgun ban violated the Second Amendment, and his position that Second Amendment rights are (as Lazarus puts it) “subject to reasonable regulation” appears indistinguishable from the position taken in Justice Breyer’s dissent.


2.  One need not be a cynic to recognize that Obama’s reactions to these rulings were part of a broader effort by a hard-left presidential candidate to posture himself as more of a centrist.  Lazarus states that he is “not so naïve as to believe” otherwise, yet he contends that he believes, “just as strongly, that Obama’s approach to these cases reflects much more than mere political calculation.”


In support of this contention, Lazarus asserts that Obama, far from being a “knee-jerk liberal”, has long held “heterodox jurisprudential views”.  But Lazarus offers only two pieces of evidence of Obama’s deviation from liberal orthodoxy, and both are laughably weak.  First, Obama believes that the Constitution “permits capital punishment as a general matter.”  But absolute and forthright opposition to the death penalty on constitutional grounds has not been a staple of liberal orthodoxy for a couple decades.  Not a single liberal justice on the Court applies that position.  (Justice Stevens recently voiced it for the first time, but has declined to apply it.)  Given that the Constitution expressly presupposes the existence of capital punishment, Obama’s position is hardly a sign of independent thinking.  (What next?  Will Obama dare to opine that each state is constitutionally entitled to two senators?)


Second, Lazarus states that Obama has long held the view that the Second Amendment “protects an individual right to bear arms, subject to reasonable regulation—a position often associated with one of his mentors at Harvard Law School, Professor Laurence Tribe.”  Note to Lazarus:  Agreeing with Larry Tribe is a mark of adherence to liberal orthodoxy, not of deviation from it.  And, as noted above, that “reasonable regulation” exception puts Obama with Breyer’s dissent.


3.  Lazarus claims that Obama’s statements about the Court’s recent rulings—including his support for the Boumediene ruling conferring constitutional habeas rights on aliens detained as enemy combatants at Guantanamo—“reflect a commitment to three extremely fundamental concepts: first, to the rule of law and the system of checks and balances that protects it; second, to judicial modesty and a concern about judges substituting their own moral judgments for those of elected representatives; and, third, to a willingness to take the Constitution’s text, history and tradition seriously in constitutional interpretation, even when this methodology leads to uncomfortable results.”  Not so: 


In Boumediene, the Court trampled the rule of law by ignoring its own sound precedent, and it upset the constitutional system of checks and balances by invading the province of the executive and legislative branches. 


Far from opposing “judges substituting their own moral judgments,” Obama has explicitly declared (as I discuss in this essay) that deciding the “truly difficult” cases—guess which those are—requires resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy,” and he has promised/threatened that he will select judges based on “who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.”


As for a supposed methodology that “leads to uncomfortable results”:  Lazarus provides no evidence that Obama takes “text, history and tradition seriously,” and he misleads his readers into thinking that Obama agreed that the Constitution required the invalidation of D.C.’s handgun ban. 


4.  Obama’s political posturing aside, there is no mystery as to the kind of justices he would seek to appoint, as the passage two paragraphs above makes clear.  He will aim to fill the Supreme Court (and the lower federal courts) with liberal judicial activists who will impose the Left’s agenda—an agenda that Obama, quite sensibly, doesn’t have the courage to run on openly.

Tags: Whelan

David Broder Still Doesn’t Understand Ronald Reagan


I interrupt my vacation to take note of these howlers in David Broder’s column in yesterday’s Washington Post:  President Reagan’s appointment of Anthony Kennedy to the Supreme Court “turned out to be successful beyond Reagan’s wildest dreams.”  Kennedy has “fulfill[ed] the expectations that Reagan and others had for him from the start.”  “Kennedy was exactly what Reagan thought” he was.  Absurd.

Tags: Whelan

This Week in Liberal Judicial Activism—Week of July 7


High on a judicial power trip?
July 91987—In 1986, the Supreme Court ruled in California v. Ciraolo that a person growing marijuana in his back yard does not have a reasonable expectation of privacy that protects his premises against inspection by police lawfully operating an aircraft at an altitude of 1,000 feet.  Exercising the illogic that earned her an appointment by President Clinton to the Eleventh Circuit in 1993, Florida justice Rosemary Barkett (in State v. Riley) rules that surveillance of a back-yard greenhouse by a helicopter lawfully flying at 400 feet violates the Fourth Amendment  because “[s]urveillance by helicopter is particularly likely to unreasonably intrude upon private activities.”  But the relevant question, as the Supreme Court makes clear in reversing Barkett (in Florida v. Riley), is whether the defendant had a reasonable expectation of privacy in the first place, and that question turns, under Ciraolo, on whether “helicopters flying at 400 feet are sufficiently rare in this country to lend substance to [the defendant’s] claim that he reasonably anticipated that his greenhouse would not be subject to observation from that altitude.” 
July 102003—Under the Nevada constitution, the legislature cannot raise taxes except by a 2/3 vote of both legislative houses.  Or so it says.  But when Nevada governor Kenny Guinn can’t get the legislature to fund his education budget, he runs to the Nevada supreme court for help.  By a vote of 6 to 1, the court (in Guinn v. Legislature of the State of Nevada) somehow orders the legislature to proceed “under simple majority rule” to raise taxes.  Citing the “impasse that has resulted from the procedural and general constitutional requirement of passing revenue measures by a two-thirds majority,” the court orders that “this procedural requirement must give way to the substantive and specific constitutional mandate to fund public education.”  (For more, see this analysis by Eugene Volokh, who describes the ruling as “one of the most appalling judicial decisions I’ve ever seen.”)  Three years later, the Nevada supreme court quietly repudiates its ruling.

For an explanation of this recurring feature, see here. 

Tags: This Day in Liberal Activism , Whelan

Wiping Off the Egg


In a follow-up to her front-pager yesterday, Linda Greenhouse reports in the New York Times today that the Justice Department is more than a bit chagrined that it did not draw the attention of the Supreme Court to an act of Congress only two years ago providing the death penalty for child rape in military cases.  (See my post on this and Andy McCarthy’s article yesterday.)

Greenhouse notes the following about the DOJ mea culpa: “The Justice Department statement was carefully worded to avoid conceding that under the reasoning of the Supreme Court decision, the military death penalty provision for child rape is now unconstitutional.”  This is understandable, almost instinctively lawyerly caution.  But of course the provision “is now unconstitutional,” if the question is whether it is possible to execute a court-martialed child rapist while last week’s ruling remains in force.  It is not, and DOJ’s care in not “conceding” so is quite pointless.

Yet another angle to be seen here is the casual use by Linda Greenhouse (and she is not alone in this) of the turn of phrase “is now unconstitutional.”  This blithely assumes that something perfectly constitutional on Tuesday becomes unconstitutional Wednesday, for no other reason than that five justices of the Supreme Court say so.

How low we have fallen.

UPDATE: Andy McCarthy has weighed in again on this little fiasco (and hey, thanks for the kudos, Andy!).  In answer to his question about motions for rehearing, I am certain that will take five votes, not merely the four required for granting certiorari.  The default position for Supreme Court decision-making is a simple majority, so the fact that Rule 44 does not specify a decision rule means it will take five votes.  So who among the five justices in the majority of Kennedy v. Louisiana will think it is worth rehearing the case?  I’m betting the answer is no one.

UPDATE to the UPDATE: On a second look, it doesn’t seem that the published rules of the Court ever mention the “Rule of Four” for certiorari.  So the silence on the margin for rehearing is not enough to be sure it will take five.  I’m still certain it will, though, because certiorari is well-known as the only decision the Court ever makes by a margin less than a majority.  It would be odd indeed if rehearing could be granted by the vote of the four losers in a 5-4 case!

As Though on Cue


The McCain campaign issued this response to Obama’s faith-initiative (and, just seemingly, in response to my call earlier today for just such a statement):

John McCain supports faith based initiatives, and recognizes their important role in our communities. He has cosponsored legislation to foster improved partnerships with community organizations, including faith-based, to assist with substance abuse and violence prevention. He also believes that it is important for faith-based groups to be able to hire people who share their faith, and he disagrees with Senator Obama that hiring at faith-based groups should be subject to government oversight.

Obama Orders Up Some Faith-Based Charities; Hold the Faith, Please


Barack Obama’s speech in Zanesville, Ohio, yesterday will probably do for him what he designed it to do: attract some more “values” voters his way without his giving an inch on the most important “values” issues: abortion, marriage, and judges.   Left-leaning evangelical Jim Wallis sang his praises on cue.  Far-gone secularist Barry Lynn recited his lines just right, denouncing the looming gap in the wall of separation.  The whole production went off as planned.

Except for its Achilles Heel: faith-based hiring.  Obama will have none of it.  Unless they hire for mission, the identity of these charities precisely as Catholic or Mormon or Pentacostal (or as whatever) will soon disappear.  It is this identity, too, which is key to why they work so well, often better than any secular counterpart charity. But if they hire for mission, these charities will (as an Obama supporter bluntly put it) just have to leave the public money to others.   And note well: there is no question in any of this about serving clients without regard for their religion (or lack of it). 

John McCain has an opening here, and he ought to seize it now.  He should begin right now making the case that this is a bellwether issue of religious freedom.  He should also begin making the case right now that Obama, despite his siren song about faith and charity, is (here, at least) a secularizing wolf in lamb’s clothing.

Pennsylvania Judge Deal?


The Legal Intelligencer is reporting that Pennsylvania’s two Senators have struck a deal to support a package of judicial nominees from their state, including one nominee for the U.S. Court of Appeals for the Third Circuit.  The catch is that this nominee, district court Judge Paul Diamond, is not the nominee already named by the White House.  If the deal goes through, the White House will withdraw the nomination of district court Judge Gene Pratter substituting Diamond.

Short a Fact or Two


A military reservist who writes a blog on military law notices a factual error in Justice Anthony Kennedy’s opinion for the Court in last week’s Kennedy v. Louisiana ruling invalidating the death penalty for child rape.  Linda Greenhouse of the New York Times notices the blog post and writes it up for the paper.  Interesting little story.  So why does the Times put it on page 1 today?

Because, as Greenhouse puts it, the factual error went to a “central part of the court’s analysis.”  It seems that when Justice Kennedy cited just six states that have the death penalty on their books for child rape, he asserted that this penalty did not exist in any federal jurisdiction either.  But in 2006 Congress added child rape to the offenses that can earn the death penalty under the Uniform Code of Military Justice.  As Dwight Sullivan, the milblawger, puts it, ““We’re not talking about ancient history.”

How did this fact escape unnoticed in Justice Kennedy’s opinion–not to mention the dissent of Justice Samuel Alito?  The Justice Department took no interest in the case, filing no amicus brief.  Should it have?  Did anyone in the military justice branches of the armed forces think to point out to their acquaintances in DOJ, as the case made its way to a Supreme Court decision, that a recent enactment of the Congress would be affected?  Did none of the clerks at the Court think to look this up?  Did any of the justices think to ask them to?

Should there be a flap about this in various quarters of the government?  Probably.  But will it make any difference?  Certainly not.  The citation of what legislatures have and haven’t done is just window dressing for the real ground of decision in these Eighth Amendment “evolving standards of decency” cases–namely, the impulses of the justices themselves.  As Justice Kennedy put it, “objective evidence of contemporary values . . . does not end our inquiry. . . . We turn, then, to . . . our own understanding of the Constitution and the rights it secures.”

It’s hard to know which is less reassuring.  When the Court consults “objective evidence of contemporary values,” it engages in something other than legal reasoning.  When it consults its “own understanding of the Constitution,” like as not it is shouting down a well.  The echoes that come back will substitute for the authentic Constitution.

But it is telling, in a way, that the very recent opinion of the Congress that child rape deserves the death penalty was not only not given any weight.  It was not even known to the justices at all.

Eighth Circuit Upholds SD Abortion Law


In 2005 South Dakota legislators passed, and Governor Mike Rounds, signed into law, an abortion consent bill.  The law required a physician performing an abortion to secure the woman’s informed consent, which consent had to include (among other information) that “the abortion will terminate the life of a whole, separate, unique, living human being,” with which the woman “has an existing relationship” that “enjoys protection under the ” constitutions of the United States and South Dakota.   Before the law could take effect a federal district judge enjoined its enforcement.  The court accepted some abortion doctors’ argument that they would be made involuntary conduits of a message which was not only not their own, but the state’s “viewpoint” on an “unsettled medical, philosophical, theological, and scientific issue, that is, whether the fetus is a human being.”  A divided three-judge panel of the Eighth Circuit upheld the injunction.  But late last week that court, sitting en banc, reversed the panel decision and upheld the challenged law. 

The most important part of last week’s opinion is the court’s two-fold rejection of the District Judge’s “unsettled” position.  The Eighth Circuit rejected the claim that the required information was “theological” or even “philosophical” in nature.  The court said instead that it was “biological”  — that is, scientific and medical.  The Court further held that the “biological” information was settled enough to be made a required part of informed consent.  And there was an end to it.

The moving force behind the SD law and throughout the subsequent litigation has been the stalwart pro-life attorney, Harold Cassidy of New Jersey

Doubling Up on Dionne:


If anything, Ed is too kind to E.J. Dionne’s failed effort at Supreme Court commentary.  I add some thoughts here.

More Dionne Confusion


In his Washington Post column today, E.J. Dionne Jr. hallucinates about the threat posed by the phantom “Constitution in Exile movement”—that “judges appointed during the right’s ascendancy [will] be able to block, frustrate and undermine the efforts of a new progressive majority.”  I recently addressed Jeffrey Rosen’s similar piece (which Dionne quotes) here, and explained here that the real threat to democratic self-government would come from Obama appointments to the Court.

Tags: Whelan

“Judicial Activism”?


I am inclined to agree with Ed Whelan that there is a useful place for the term “judicial activism” in critical discussions of the Supreme Court.  One reason I say so is that I use the term myself sometimes, and I use it pretty much to identify the same judicial sins that Ed identifies when he uses the term.

I am nonetheless a bit sheepish about the term.  One reason for that is that the redoubtable Mark Tushnet thinks the term is played out.  Another reason is that I am not entirely satisfied with Ed’s account of the term: “wrongful overriding of democratic enactments (often through the invention of supposed constituional rights)”.  And I am not sure that I can do much better.  (Though I try to, below.)

The challenge posed by Tushnet (as I understand it) is to give “judicial activism” an intelligible and independent meaning, so that it does some distinctive critical work.  It won’t do therefore to transfer the weight-bearing load to another evaluative term as, to some extent, Ed may do with “wrongful.”  Was the Court’s decision last week (authored by Scalia) in Giles v. Califonia “activist”?  It struck down a useful California law, one of a type (involving admissible hearsay) quite popular across the country.  I suppose the answer to the “activist” charge depends on whether Scalia was (is) right (and his opinion thus not “wrongful”) about what the founders meant by the Confrontation Clause.  Nor will it do to leave matters at an intuitive level, as if “judicial activism” were like obscenity — about which Potter Stewart famously confessed: I can’t define it “but I know it when I see it.”

I am also not sure how much weight to assign to the “democratic” quality of the “enactment” overruled by a putatively “activist” decision.  Perhaps Ed is quite right about this.  But I do wonder how much it matters if the Court strikes down a state judicial rule or administrative regulation (neither of “democratic” provenance”) on wholly unwarranted grounds — say, where a majority concedes that it is relying upon its own moral judgments not tethered to any constitutional provision.  This seems like “judicial activism” to me. “Activism” is (I think) a quality of the judicial decision itself, at least of its reasoning, and has nothing essential to do with the nature or origins of the enactment at issue.

My tentative (and humble) submission is that “judicial activism” is indeed a useful term, and that its central meaning has to do strictly with the sources of judicial reasoning — whether the grounds (criteria, reasons) for the judicial decision are fairly inferable from the constitutional text, structure, or history of its authoritative interpretation.  If not, you have an “activist” at work.

Or something like that.

The Presidential Election and the Supreme Court


Robert Barnes’s review of the Court’s term in yesterday’s Washington Post correctly observes that the Court “is sharply divided ideologically on some of the most fundamental constitutional questions, and the coming presidential election will determine its future path.”  As Barnes puts it, an Obama victory “would probably mean preserving the uneasy but roughly balanced status quo since the justices who are considered most likely to retire are liberal,” whereas a McCain win “could mean a fundamental shift to a consistently conservative majority ready to take on past court rulings on abortion rights, affirmative action and other issues important to the right.”

I have no dispute with this general political narrative, but would flesh out some additional details that would suggest a different cast to the rhetoric: 

1.  The current Court is markedly to the Left of the American public.  Obama’s rush to criticize the Court’s ruling in Kennedy v. Louisiana (no death penalty for rape of child) and his flip-flop on Second Amendment rights illustrate this, as does the public’s disapproval (by a margin of 61-34 in this Washington Post poll, question 13) of the Court’s conferral of constitutional habeas rights on foreign terrorists at Guantanamo (in Boumediene v. Bush).  It’s also quite possible that the Court, as currently composed, would invent a constitutional right to same-sex marriage.  So there’s no reason to think that an informed public would want to preserve the status quo.    

2.  Even though it’s probable that the first justices to leave the Court will be from among the four steadfast liberals, it’s far from certain.  Moreover, if Obama wins in 2008, he’s a strong favorite to win re-election in 2012, in which case it’s a fair bet that he’d be able to replace Justice Scalia and Justice Kennedy.  The resulting Court would have six votes for all sorts of constitutional mayhem.  As the National Journal’s Stuart Taylor has put it, justices appointed by a President Obama would present a real threat (in Taylor’s words) of further “displacing democratic choices with made-up constitutional law” and of “strangulation” of representative government: 

Based on the wish lists published by liberal judges and law professors, justices who fit Obama’s description [of his model appointee] might well invent federal constitutional rights not only to gay marriage but also to Medicaid abortions, physician-assisted suicide, human cloning, and perhaps free medical care, food, and housing for poor people; strike down the death penalty (as Stevens recently advocated) and laws making English the official language; ban publicly funded vouchers for poor kids to attend parochial schools; bless ever-more-aggressive use of racial and gender preferences; and more. 

For these reasons (as I’ve recently argued here and here), American citizens, with a fuller picture of what is at stake in the presidential election, can be expected to prefer that John McCain make the next Supreme Court appointments.

Tags: Whelan


Subscribe to National Review