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Arkes Online


It’s been posted on the NRO Web Briefing all day, but in case you overlooked it, Hadley Arkes’s fine article (mentioned here before) on the prospect of a Giuliani nomination for the future of the GOP as the pro-life party is now online, courtesy of First Things, where it appears in the December issue.

One Fein Lady?



This Week in Liberal Judicial Activism—Week of November 19


Nov. 22     2006—It’s monkey business as usual at the Ninth Circuit.  A divided panel, in an opinion by higher primate William Fletcher, disrupts established principles of administrative law as it rules both (1) that a plaintiff with a “particularly close emotional attachment” to a chimpanzee named Terry has standing to challenge the Department of Agriculture’s decision not to adopt a draft policy providing guidance on how to ensure the psychological well-being of nonhuman primates, and (2) that the decision not to adopt the draft policy is judicially reviewable.  Judge Kozinski concludes his thorough dissent with this summary:

“The majority expands the law of standing beyond recognition. It unmoors administrative law from sound principles of judicial review, and insinuates the federal courts into sensitive policy judgments that are the exclusive province of the Executive Branch. It ignores the teachings of the Supreme Court and misapplies the precedents it relies on. It will cause no end of mischief. Count me out.”

2008—Happy Thanksgiving!  Be grateful that the secular activists in the judiciary weren’t dominant when George Washington was president, or we’d never have this great, and deeply religious, American feast.  In the words of Washington:

“Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor; and Whereas both Houses of Congress have, by their joint committee, requested me to ‘recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness’:

“Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquility, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enable to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us.

“And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best.”


Nov. 23     1998—Purporting to be “mindful that a solemn act of the General Assembly carries with it a presumption of constitutionality that is overturned only when it is established that the legislation ‘manifestly infringes upon a constitutional provision or violates the rights of the people,’” the Georgia supreme court instead shows itself eager to continue its supposed legacy of being a “pioneer in the realm of the right of privacy.”  To that end, in Powell v. State, it concocts a state constitutional right to consensual sodomy:  as it puts it, the laws may not criminalize “the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent.”  Never mind that its supposed right recognizes, and is limited by, state authority to establish an age of consent (and to bar consent in cases of adult incest), and that the case before it involved a 17-year-old who, as it happens, testified that the defendant—her aunt’s husband—had sodomized her “without her consent and against her will.”  (The jury verdict of acquittal on two charges indicates that her testimony did not convince a jury beyond a reasonable doubt).  A concurring justice praises the majority opinion as “inspired”—perhaps, but by what?—and laments that some might criticize the opinion rather than “engag[e] in constructive ideological discourse.”

Justice Carley, in dissent, argues that the precedent on which the majority relies “clearly interprets the constitutional right of privacy as subject to compliance with this state’s criminal statutes.”  He faults the majority for “acting as social engineers rather than as jurists” and for “judicially repeal[ing] laws on purely sociological considerations.”  

Nov. 24     2004—A New Hampshire law, enacted in 2003, generally requires that abortionists provide 48 hours’ advance notice to parents of minor daughters who have arranged to undergo abortion.  The law provides for various exceptions to the notice requirement but does not set forth an express exception for hypothetical instances in which compliance with the notice period would threaten severe damage to the minor’s health.  In Planned Parenthood v. Heed, a First Circuit panel invalidates the law in its entirety because it lacks a health exception.

On review, the Supreme Court rules unanimously (in Ayotte v. Planned Parenthood) that the First Circuit erred in failing to consider whether narrower relief, such as enjoining enforcement of the law only in instances that presented a severe health risk, was appropriate.

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

No Thanksgiving Recess


Roll Call reports Senate Majority Leader Harry Reid plans to keep the Senate in session, albeit nonvoting, “pro forma” session, over Thanksgiving weekend so as to prevent President Bush from making any recess appointments.

The Madisonian Precedent


I quite enjoyed Chief Justice Roberts’ Olson lecture last night.  It was informative and engaging. My favorite tidbit: After James Madison nominated Joseph Story and Gabriel Duvall to the Supreme Court, the Senate confirmed both <i>the next business day</i>.  Perhaps the Senate should consider reviving this tradition.


The Chief Speaks--But What Does He Say?


I’m blogging from the Federalist Society’s National Lawyers Convention (where they evidently haven’t heard of apostrophes), and came a little while ago from hearing Chief Justice John Roberts give the seventh annual Barbara Olson Lecture.  Apparently a former mayor of New York who’s running for something gave a speech here this afternoon while I was on the road–you’ll see a bit of comment on it on The Corner.

Roberts gave a lecture on the judicial appointments of James Madison: the deservedly obscure Gabriel Duvall, and the justly famous Joseph Story.  Not quite what I’d call a deeply learned talk, but full of telling anecdotes and quotations, and with an ample portion of wit, drily delivered by Roberts in deadpan fashion with just the faintest twinkle of mischief in his eye.  It reminded me of listening to Roberts’ old mentor William Rehnquist, an “amateur” (in the best sense of that word) historian of the Court who wrote several books on it, and whose own talks on the subject seemed echoed by the present chief justice tonight–only Roberts has a better comic delivery.

The Chief’s talk was, as a friend said afterward, not what we’d have gotten from, say, Justice Scalia, who would have given one of his patented thunderations about the virtues of originalism and the intellectual poverty of all the alternatives–about which he is quite right, of course.  Leaving aside the Rehnquistian touches of history, Roberts gave a speech that in its underlying theme could well have been given by Sandra Day O’Connor, who, if she had said all the same things, would not have been applauded so well by Federalist Society types.  O’Connor, after all, is given to schoolmarmish fretting about judicial independence, a notion strongly endorsed by Roberts in his lecture tonight in accents any judge could have employed. 

In short, FedSoc folks like the man, and think they know him, and therefore think they “heard between the lines” some indications of the Chief’s views.  But he didn’t say a word about judicial philosophy, really, other than to utter the anodyne characterization of Joseph Story’s “steadfast belief that the Court was above and apart from the political fray.”  And he praised President Madison’s rejection of Jeffersonian “litmus tests” when choosing Supreme Court nominees.  Yes.  Well.

As I say, the audience liked, nay, loved, the chief justice tonight–but it could not really have been for what he revealed so much as for what they project on him, embracing him as one of their own.  I hope we all have him right.  And that he has it right.

More Bush Judicial Nominees


Today, President Bush announced a long list of judicial nominees, including two for vacancies on federal appellate courts.  Specifically, Bush nominated Maryland U.S. Attorney Rod Rosenstein to the U.S. Court of Appeals for the Fourth Circuit and district court judge Gene Pratter to the U.S. Court of Appeals for the Third Circuit.  (LvHB)

ABA vs. AG Mukasey


As I headed in a taxi this morning to the formal swearing-in of Attorney General Michael B. Mukasey, I happened to hear a few minutes of a radio talk show in which ABA president William H. Neukom assured a caller that the ABA was working hard to try to get Congress to strike the right balance between what he called “so-called national security” and civil-liberties concerns.  Somehow I don’t think that an organization headed by someone who evidently has doubts that we face genuine national-security threats can speak constructively on the matter.  (Not to mention all the other myriad ways in which the ABA has shown itself to be incompetent and untrustworthy.)


Fortunately, AG Mukasey understands what America faces.  In his clear and crisp style, he referred directly in his remarks to “the threat to our security from those who believe it is their religious duty to make war on us.”

Tags: Whelan

Federalist Society’s National Lawyers Convention


The Federalist Society’s National Lawyers Convention will take place from Thursday, November 15, through Saturday, November 17, in Washington, D.C.  Those taking part in the events—which will be highlighted by the Federalist Society’s 25th Anniversary Gala—include President Bush, Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito.  To register, or for more information, see here.

Tags: Whelan

The Return of Publius


Some readers asked me months ago, after the conclusion of my blog series “The Perennial Publius” on the 85 essays of The Federalist that ran here from January to May, whether the series would all be assembled in one handy place.  Now it has been.  You can download the entire series in a single 80-page PDF file here; it’s complete with bookmarks to each entry in the series.

This Week in Liberal Judicial Activism—Week of November 12


Nov. 12     1908—In Nashville, Illinois, the human fetus to become known as Harry A. Blackmun emerges safe and sound from his mother’s womb.  Some sixty-five years later, Justice Blackmun authors the Supreme Court opinion in Roe v. Wade.  (See This Week for Jan. 22, 1973.)  Somehow the same people who think it meaningful to criticize Justice Thomas for opposing affirmative-action programs from which he putatively benefited don’t criticize Blackmun for depriving millions of other unborn human beings the same opportunity that he was given. 

1975—Justice William O. Douglas (see This Week for April 4, 1939) retires from the Court—only to be replaced by Justice John Paul Stevens.


Nov. 13     1980—Days after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the incoming Senate, President Carter nominates Stephen G. Breyer, then serving as chief counsel to Teddy Kennedy on the Senate Judiciary Committee, to a newly created seat on the First Circuit.  Less than four weeks later, the Senate confirms Breyer’s nomination.


Nov. 14     2003—Demonstrating their particular animus against female nominees whom they regard as judicial conservatives, Senate Democrats filibuster President George W. Bush’s nominations of Judge Priscilla Owen to the Fifth Circuit, Judge Carolyn B. Kuhl to the Ninth Circuit, and Judge Janice Rogers Brown to the D.C. Circuit.  Cloture motions on each of the nominations (in Owen’s case, the fourth such motion) fail, as only two Democrats—Zell Miller of Georgia and Ben Nelson of Nebraska—vote in favor of cloture.

In May 2005—more than four years after her initial nomination—Owen is finally confirmed.   Brown is confirmed in June 2005, nearly two years after she was first nominated.  Kuhl, first nominated in June 2001, withdraws her candidacy in December 2004.


Nov. 16     1993—In Steffan v. Perry, a trifecta of Carter appointees on the D.C. Circuit—Abner J. Mikva, Patricia M. Wald, and Harry T. Edwards—rules that Department of Defense Directives excluding homosexuals from military service cannot constitutionally be applied to someone who has identified himself as a homosexual but who has not been shown to have engaged in homosexual conduct.  Purporting to apply rational-basis review, the opinion authored by chief judge Mikva determines that it is irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.”  One year later—after Mikva’s resignation—the en banc D.C. Circuit reverses Mikva’s ruling (with Wald, Edwards, and Clinton appointee Judith Rogers dissenting).


Nov. 18     2003—By a vote of 4 to 3, the Massachusetts supreme court (in Goodridge v. Department of Public Health) imposes same-sex marriage on the benighted citizens of Massachusetts, as the court rules that a state statute defining marriage as the legal union of a man and a woman—a statutory definition that dates back to colonial times and that is derived from English common law—somehow violates the “individual liberty and equality safeguards” of the state constitution.  The majority opinion by chief justice Margaret H. Marshall, wife of former New York Times columnist Anthony Lewis, is widely credited with helping to secure President George W. Bush’s re-election in 2004.

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

First Things Second


Whether you agree or disagree with my main-page piece today on Rudy Giuliani, the next thing you should definitely read is the far stronger article by Hadley Arkes, just out in the December issue of First Things magazine, on the same subject: the troubles in store for the Republican Party and the pro-life cause if Hizzoner becomes the nominee.  I hope the editors at FT see fit to post Hadley’s piece on the magazine’s website.

Status Report on Appellate-Court Nominations


1.  One nominee—John Tinder (7th Circuit, Indiana*) has recently been reported to the Senate floor.


2.  One nominee, acting Attorney General Peter Keisler (D.C. Circuit), had his hearing long ago—on August 1 of last year—but has still not voted out of committee.  I note again that in mid-January 2007 (as I discussed here), the Los Angeles Times specifically recommended that Senate Democrats confirm Keisler and, more generally, display a “cooperative spirit” rather than “obstructionism” and “forswear knee-jerk opposition to Bush appointees who are within the legal mainstream.” 


3.  Seven nominees—Shalom D. Stone (3rd Circuit, New Jersey), Judge Robert J. Conrad (4th Circuit, North Carolina), Duncan Getchell (4th Circuit, Virginia), Steve Matthews (4th Circuit, South Carolina), Judge Catharina Haynes (5th Circuit, Texas), Raymond M. Kethledge (6th Circuit, Michigan), and Stephen J. Murphy (6th Circuit, Michigan)—await their hearings.  Kethledge and Murphy were first nominated in June 2006, and their nominations were resubmitted in March 2007.  Stone, Conrad, and Haynes were nominated in mid-July 2007.  Getchell and Matthews were nominated in early September 2007.


4.  Five appellate nominees have been confirmed in 2007:  Debra Livingston (2nd Circuit, New York), Thomas Hardiman (3rd Circuit, Pennsylvania), Leslie Southwick (5th Circuit, Mississippi), Jennifer Walker Elrod (5th Circuit, Texas), and N. Randy Smith (9th Circuit, Idaho).


5.  Six court of appeals vacancies, including two more in the 4th Circuit (one Maryland, one Virginia), await nominations.   


I welcome any corrections to this summary.


* Because it matters for internal Senate politics, I list the state supposedly associated with each seat.  I say “supposedly” because the work of circuit judges is not tied to any particular state, and the law does not identify their seats by state.

Tags: Whelan

This Week in Liberal Judicial Activism—Week of November 5


Nov. 5       1996—If the First Amendment means anything, surely it must mean that the government must be open to funding a piece of “performance art” in which the performer smears chocolate on her breasts and another in which the performer urinates on the stage and turns a toilet bowl into an altar by putting a picture of Jesus on the lid.  Or so some minds imagine.  In Finley v. National Endowment for the Arts, a divided panel of the Ninth Circuit rules that the NEA’s governing statute violates the First Amendment by providing that NEA grant decisions shall “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.”  As Judge Andrew Kleinfeld marvels in dissent:

“First Amendment law has taken some odd turns lately. We now live in a legal context prohibiting display of a cross or menorah on government property. But if a cross is immersed in urine, a government grant cannot be withheld on the ground that the art would offend general standards of decency and respect for the religious beliefs of most Americans. The government, under today’s decision, cannot even consider ‘general standards of decency and respect for the diverse beliefs and values of the American public’ when it gives artists grants. Yet we penalize private employers for slowness in firing employees who do not show decency and respect for other employees. This self-contradictory silliness is not built into the Bill of Rights. The First Amendment does not prohibit the free exercise of common sense.”

On review, the Supreme Court reverses the Ninth Circuit, with only Justice Souter in dissent, though the approaches of Justice O’Connor’s majority opinion and Justice Scalia’s opinion concurring in the judgment differ dramatically.  As Scalia puts it:  “Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of the statute.  Avant-garde artistes such as [the chocolate-smearer and the urinator] remain entirely free to epater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it.” 


Nov. 6       2003—Senate Democrats continue their unprecedented measures of obstruction against judicial nominees, as they defeat for the second time an effort to end their filibuster of President George W. Bush’s nomination of William H. Pryor, Jr., to a seat on the Eleventh Circuit.  Only two Democrats—Zell Miller of Georgia and Ben Nelson of Nebraska—vote in favor of the cloture motion, and forty-three oppose it. 

In February 2004, President Bush recess-appoints Pryor to the seat.  And in June 2005, after the Senate finally confirms Pryor’s nomination (by a 53 to 45 vote), President Bush appoints him to a lifetime seat.


Nov. 7       2000—So much for respecting a capital inmate’s final wishes.  Don Jay Miller, sentenced to death in Arizona for first-degree murder and kidnapping, states that he wishes his execution to proceed as scheduled the next day, declines to seek federal habeas relief, and refuses to authorize any attorney to represent him in seeking habeas relief.  But, in an action brought by a public defender seeking to represent Miller against his will, a divided Ninth Circuit panel, in an opinion by Judge Stephen Reinhardt (in Miller v. Stewart), blocks the execution on the ground that a hearing that established Miller’s competency to represent himself in state post-conviction proceedings did not suffice to establish his competence to “choose to die.”  Judge Pamela Rymer, in dissent, criticizes “the unprecedented view that there is a difference of constitutional magnitude between what [Reinhardt] characterizes as ‘competency to choose to die …’ and competency to make legal decisions.”

Later the same day, the Supreme Court lifts the Ninth Circuit stay.  


Nov. 10     1961—Phony cases make silly law.  Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Lee Buxton, a Yale medical school professor who doubles as medical director of the League’s New Haven facility, contrive to get themselves arrested for violation of an 1879 Connecticut law against using, or being accessories to the use of, contraceptives—a law that had never been enforced.  They succeed in being found guilty and fined $100 each, and thus begin to lay the stage for the Supreme Court’s 1965 ruling in Griswold v. Connecticut.  (See This Week for June 7, 1965.)

1992—Is orthodox Judaism the state religion of Georgia?  A panel of the Eleventh Circuit rules (in Chabad-Lubavitch of Georgia v. Miller) that the display of a menorah in the rotunda of Georgia’s capitol building would violate the Establishment Clause.  Eleven months later, the en banc Eleventh Circuit unanimously reverses the panel ruling and permits the menorah display. 


For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

The Urge to Constitutionalize Everything


Another Sunday, another wrongheaded George Will column on the Constitution (or that’s the pattern lately, anyway).  Assuming his best schoolmasterish scowl, hickory switch in hand, Will declares: ‘”Republicans, supposed defenders of limited government, actually are enablers of an unlimited presidency.”  This is hyperbolic and ahistorical.  Ahistorical because the political ancestors of the view taken by Will’s deprecated “presidentialists” are such dangerous characters as Abraham Lincoln and Alexander Hamilton.  Hyperbolic because the view taken of presidential war powers by defenders of the Bush administration hardly amounts to “an unlimited presidency.”  Advocacy of a vigorous presidency with respect to national security, especially when the nation is at war or under attack, is perfectly consistent with the conservative defense of limited government.

Will is much taken with what he calls the “nonpartisan” “Constitution Project,” an outfit that seems to get most of its funding from George Soros’s Open Society Institute.  The 2005 report of the Project’s “War Powers Initiative,” praised by Will, was the work of a committee with a sprinkling of nonacademic former government officials of both parties, but whose membership was dominated by legal academics who were all, to a person, liberals (with the possible exception of Louis Fisher, a political scientist at the Library of Congress who is “nonpartisan” only in the sense of being an equal-opportunity partisan of Congress over the presidency, whoever is in the White House).  If you read the report, pay particular attention to the separate dissenting views offered at the end by Edwin D. Williamson, former legal adviser to the State Department–and the only member of the committee who seems to have understood the constitutional issues correctly.

Will also likes the “Constitutional War Powers Resolution” introduced in the House recently (as H.J.Res. 53) by Republican Walter Jones of North Carolina.  This misguided piece of legislation is worse than the War Powers Act passed over Richard Nixon’s veto in 1973, and held to be invalid by every president since then.  Its worst feature is its statutory conjuring (in its section 8) of “standing to sue” for any member of Congress who feels aggrieved by the president’s use of military force–a standing the Constitution does not confer for good reason, because no injury to an individual right is suffered by a congressman in such circumstances.  Does Will join Jones in issuing such an invitation to judicial adventurism in a region where sensible judges have always feared to tread?

Finally, Will has this brief description of a major war powers episode in the 20th century:

Congress’s powers were most dramatically abandoned and ignored regarding Korea. Although President Harry S. Truman came from a Congress controlled by his party and friends, he never sought congressional authorization to send troops into massive and sustained conflict. Instead, he asserted broad authority to “execute” treaties such as the U.N. Charter.

Well, not exactly.  As Charles Lofgren of Claremont McKenna College remarked nearly 40 years ago in a classic article titled “Mr. Truman’s War”:

Because the Truman Administration did not seriously maintain that the various resolutions of the [U.N.] Security Council provided a substitute for a congressional declaration of war, the issue in the debate over the legality of the Korean intervention was whether the President had properly exercised his powers as Commander-in-Chief.

Lofgren concluded with some wisdom that is conspicuously lacking in the “Constitution Project,” Representative Jones, and George Will:

Both sides in the Korean debate conceded that the President could act, without Congress, to counter an immediate, dangerous threat to American interests and security.  Thus the real issue became (and remains): What constitutes such a threat?  To answer that question takes one beyond the province of constitutional law.

Miles/Sunstein Reply on Judicial Activism


Update:  I have modified this post to correct an error that affected my third point and am reposting it in its entirety.


Last week I wrote an op-ed in the Los Angeles Times responding to an op-ed in that paper by Thomas J. Miles and Cass R. Sunstein of the University of Chicago.  The Miles/Sunstein op-ed used statistical analysis of routine administrative-law cases to try to discern which justices are judicial activists.  The primary point of my op-ed was to dispute their contention that their overall approach shed any meaningful light on judicial activism.  In addition, I pointed out some basic statistical defects in their approach.


Miles and Sunstein have now posted a lengthy reply to me and other critics.  Their reply is unsatisfactory.


First and most importantly, Miles and Sunstein say virtually nothing in response to my primary point that they’re wrong to view routine administrative-law cases as more revealing of judicial activism than “high-profile constitutional cases” are.  They assert that “the number of such [constitutional] cases is small, and it isn’t easy to test competing hypotheses about partisanship and restraint.”  But one need not resort to obscure statistical analysis to recognize which justices embrace and apply a view of the judicial role that most overrides the ability of American citizens to exercise their constitutional powers of self-governance.


Second, Miles and Sunstein dispute my (and Ilya Somin’s) criticism that their statistical analysis implicitly presumes that agency errors aren’t skewed in a liberal direction.  Ilya Somin nicely criticizes their reply here.


Third, I had also offered this minor criticism:


Miles’ and Sunstein’s statistics are also skewed by the fact that they cover the period from 1989 through 2005. Justices Ginsburg and Breyer were not on the court in the early years of that period, when the court was reviewing agency decisions from Republican administrations that account for about a third of the total cases. The relative partisanship that Miles and Sunstein find in Ginsburg’s and Breyer’s votes would surely have been much higher if Miles and Sunstein had used the same set of cases for all justices.


I now believe that in my rush to meet a deadline I miswrote the last sentence.  I should have written something like:  “The relative level of overturning that Miles and Sunstein attribute to Ginsburg and Breyer votes would presumably have been higher if Miles and Sunstein had used the same balanced set of cases for all justices.”  (I suspect that their relative partisanship would also have been higher, but that would depend whether Ginsburg and Breyer were more likely to uphold agency decisions of the Clinton administration that Miles and Sunstein rated conservative than agency decisions of Republican administrations that they rated conservative.)


I gather that Miles and Sunstein selected the period from 1989 through 2005 because it contains an even balance of years of Republican and Democratic administrations (including if one allows for the lag time between agency ruling and Supreme Court review).  A rough balance is important to discern relative “restraint” or “activism” (as Miles and Sunstein misuse those terms), because a conservative justice who indulges his biases is more likely to defer to agency rulings in Republican administrations, whereas a liberal justice who indulges his biases is more likely to defer to agency rulings in Democratic administrations.   


Because the Ginsburg/Breyer case sets were heavily skewed towards cases from the Clinton administration, the Miles/Sunstein statistics predictably understate the relative rate of overturning by those justices compared to the other justices.


Miles and Sunstein reply to the point I should have made, but their reply is to argue that they encounter “similar patterns” of judicial overturning—similar, that is, to their 1989-2005 numbers—when “we limit our analysis to the period after 1994.”  Well, of course.  All that limiting the analysis to the period after 1994 achieves is to skew the case set for all the justices by removing a big chunk of Bush 41 cases (as many as 36% of the total) from the analysis.  In other words, in trying to correct one error, Miles and Sunstein have committed another, as they have upset the case balance for all the other justices—in the direction of understating the relative overturn rate of liberal justices and overstating the relative overturn rate of conservative justices.


If my point remains obscure, perhaps a rough baseball analogy will clarify it (at least for baseball fans).  Let’s say that a statistical study shows that righthanded batters are much more likely to strike out than lefthanded batters, but it turns out that the data for lefthanded batters is based only on at-bats against righthanded pitchers, whereas the data for righthanded batters includes at-bats against both righthanded and lefthanded pitchers.   My objection is that the data for lefthanded batters should also include at-bats against lefthanded pitchers.  Miles and Sunstein instead reply by limiting the data for righthanded batters to at-bats against righthanded pitchers—and then think themselves somehow vindicated when the new results again show that righthanded batters are much more likely to strike out.  The objective observer would fairly conclude that Miles and Sunstein don’t know much about baseball—or that they have an ideological agenda against righthanded batters. 

(I am of course not contending that righthanded batters don’t strike out more often than lefthanded batters; I would guess that they do, largely because there are so many righthanded pitchers.  My point is limited to the integrity of the statistical comparison.)

Tags: Whelan

Solum on Originalism


On his Legal Theory blog, law professor Lawrence Solum has a characteristically deep and lucid and rigorous post on originalism.  (It’s also a very long post.)  Among other things, Solum distinguishes “between semantic originalism—a family of theories about the natural meaning of the constitutional text—and normative originalism—a family of theories about how constitutional practice (both in the courts and by legislatures, executives, and citizens) ought to be conducted.” 


Solum outlines his case for the “truth of semantic originalism”—and specifically of textualist semantic originalism.  Semantic originalism, Solum explains, is “a theory about what the constitution means” and in that respect is “simply a subdomain of broader semantic theories.”  Textualist semantic originalism “is the view that the natural meaning of the constitutional text is its conventional semantic meaning—the meaning that the words and phrases would have conveyed to the public at the time the relevant portion of constitutional text was drafted, proposed, and adopted.”  (I understand textualist semantic originalism to be the same as, or at least the core part of, the original-meaning species of originalism that Justice Scalia advocates.  As I understand it, Solum adopts his own terminology in order to emphasize his distinction between semantic and normative originalism.)


Solum next explains that the “truth of [textualist] semantic originalism, by itself, has no normative implications” (I think his phrasing is meant to be equivalent to “no necessary, i.e., absolutely compelled, normative implications”):


Even if the semantic content of the constitution is the original public meaning, it could be the case that constitutional practice should deviate from that meaning. For example, one might argue that precedent should trump the original public meaning. Or one might argue that the difficulty of constitutional amendment so undermines the democratic legitimacy of the Constitution that the political branches are justified in “amending constructions” that give the text new and different semantic content. Or one might believe that the constitution is so undesirable or unjust that judges are justified in ignoring the semantic content of the constitution and deciding cases on the basis of their own beliefs about what the Constitution should have provided.


But, he continues:  “In a wide variety of legal contexts, the notion that officials are obligated by the semantic content of legal texts is simply not controversial. Quite the contrary, our usual assumption is that in a reasonably just society, the semantic content of valid legal texts creates obligations for judges, other officials, and citizens.”


Solum thinks that many originalists have erred in “seem[ing] to believe that by producing arguments for semantic originalism, they have provided a prima facie normative case.”  I confess that I’m puzzled by his proposition here, at least by his use of “prima facie”.  I would agree that his explanation shows that the truth of semantic originalism does not irrefutably prove the normativeness of originalism.  (By analogy, for example, judges can use semantic originalism to discern the correct meaning of a clause of a contract but then decline to enforce the clause on the grounds of unconscionability.)  But his own discussion of “our usual assumption … in a reasonably just society” would seem to make the prima facie case for the normativeness of originalism.  In other words, it would seem to place the burden of proof on those opposing originalism to establish why textualist semantic originalism should not apply. 


Solum has outlined a powerful case that textualist semantic originalism is the best method for discerning the actual meaning of the Constitution.  I look forward to learning more from Solum on why he “only partially embraces normative originalism”—why, that is, and under what circumstances he believes that constitutional practice should, for normative reasons, deviate from the actual meaning of the Constitution. 

Tags: Whelan

Caution, Judge on the Loose


Sometimes it seems that upon taking the oath of office as a judge, people we might have expected to be perfectly sensible begin to assume that any and all interesting questions confronted by the American republic ought to be referred to their expertise, armed as they are with the inexhaustible toolkit of the U.S. Constitution–or of an imaginative approach to it.  It doesn’t happen to all of them, but it does to far too many.

At least this was the thought that occurred to me as I read this New York Times op-ed today by semi-retired federal district court judge John C. Coughenour.  Taking issue with an August Wall Street Journal piece by Michael B. Mukasey (not yet at that time the nominee for Attorney General), he argues that the lone case of Ahmed Ressam in 2001, over which Coughenour presided, “demonstrates that our courts can protect Americans from terrorism.”  I don’t think Coughenour’s argument is an effective rebuttal of Mukasey’s views at all, but I’ll let readers see for themselves, and maybe Andy McCarthy would like to weigh in on that dispute as a general matter.

I was more immediately struck, however, by this paragraph in Coughenour’s piece:

Consider the fact that of the 598 people initially detained at Guantánamo Bay in 2002, 267 have been released. It is likely that for a number of the former detainees, there was simply no basis for detention. The American ideal of a just legal system is inconsistent with holding “suspects” for years without trial.

This is simply a categorical confusion on Coughenour’s part, albeit one that is increasingly common among American lawyers and judges.  The “suspects” at Guantanamo are wartime captives–the term “prisoners of war” would be appropriate if they deserved that honorable status, which they don’t.  Their detention in military custody has nothing whatever to do with “the American ideal of a just legal system” such as we would expect to be brought into play for civilian criminal suspects arrested by law enforcement authorities.  It has to do with achieving the objective of winning a war.  Flapdoodle about the Bill of Rights and the employment of federal courts in adjudicating the niceties of warfighting is simply out of place.

Policemen in American communities are not generally under orders to sweep an area clean of all persons plausibly suspected of being “enemies” and holding them until the innocuous can be sorted from the dangerous, meanwhile subjecting them to interrogation without legal counsel to aid in that sorting (among other purposes).  We would rightly be alarmed if our policemen behaved this way.  But this is just what soldiers in wartime have to do, routinely–and especially in this war, where the enemy are terrorists who have no respect for the laws of war.

Coughenour cites 267 releases from Guantanamo, but he professedly does not know in how many instances “there was simply no basis for detention.”  Neither do I.  He appears not to know anything about the pace of the releases–how long each released detainee had been held.  Neither do I.  But Coughenour is content to insinuate that most or all of them were held for “years without trial.”

Unlike Coughenour, I am willing to believe that the military has no interest in holding any Gitmo detainee one day beyond what military necessity dictates, and none at all in holding people swept up in dragnets by mistake.  I’m also pretty sure that some detainees who could and perhaps should have remained in lockup have been let go–maybe even a greater number than those released after having been detained unjustifiably.

And the last thing, of which Coughenour makes me even more certain, is that I don’t want federal judges coming anywhere near the business of deciding who stays and who goes at Guantanamo.  I have high hopes but low expectations that at least five Supreme Court justices will agree with me in the pending case of Boumediane v. Bush.

Cameras in the Supreme Court?


In today’s Wall Street Journal (subscribers only), Peter G. Verniero, a former justice of the New Jersey Supreme Court, attempts to rebut all the arguments against televising the public proceedings of the U.S. Supreme Court.  Some of them are easily rebutted.  For instance, that cameras “would make justices more visible and thereby increase security risks,” or merely compromise their ability to “enjoy living in relative anonymity.”  As Verniero points out, anyone who wants to inform himself of what the justices look like can certainly find out now.

But Verniero doesn’t seem to realize that this argument cuts against him too.  Anyone who wishes to know what is said in the Supreme Court during oral arguments, or when decisions are announced, can read the argument transcripts (now usually available the same day), press accounts, and the judicial opinions himself.  The most Verniero can muster for the value added by TV cameras is that we’ll be able to see the justices’ facial expressions and hear their tones of voice. 

Frankly, that’s not much justification.  And Verniero dismisses too easily some of the other concerns of camera opponents–that both lawyers and the justices themselves may change their behavior with cameras present, and that the media will give most Americans misleading “sound-bite coverage of complicated cases.”  Most citizens, after all, will not tune in to gavel-to-gavel coverage on C-Span.  If you think Linda Greenhouse is bad, just wait until anchors like Brian Williams can throw five seconds of Justice Scalia’s aggressive questioning up on America’s TV screens.

The onus in this argument should be on those who want the cameras in the courtroom, not on those who want to keep them out.  Fulminating as Verniero does that “the Court’s policy against televised proceedings is on the wrong side of history” doesn’t make the case at all.  Wrong side, shmong side.  The way the Court operates now isn’t broken, and it doesn’t need fixing.

Debating Abigail Alliance


Over on the Federalist Society website, Ed Whelan and I take on Roger Pilon and Curt Levey on the Abigail Alliance case, and the question of whether terminally ill patients have a fundamental constitutional right to access potentially life-saving drugs once the drugs have made it through Phase I of the FDA’s drug approval process.  As you might expect, Ed and I are quite skeptical of such a judicially enforceable constitutional right.


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