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Slate’s Dahlia Lithwick somehow finds in the oral argument yesterday in the Second Amendment case “the abandonment of every principle of strict construction, federalism, and judicial modesty in which the Roberts Court ever purported to believe.”  Further, she maintains that counsel for the gun owners implicitly invoked “the spirit of Roe v. Wade” in arguing for judicial review “when a fundamental right is at stake.”  She concludes:


Today we have four liberals rediscovering the beauty of local government and judicial restraint and five conservatives poised to identify a fundamental personal right that will have judges mucking about in gun cases for years to come. After all these years of deep conservative suspicion of turning over policy matters to the courts, the Roberts Court has fallen in love with a new constitutional right. And while they don’t seem much concerned about how the judges will manage it, they’ve just about ensured that judges around the country will soon be ruling in gun cases the way they used to rule on speeding tickets.


Perhaps Lithwick might have waited for the Court to issue its opinion before offering her hyperventilating conclusions.  And perhaps she might have in mind that, whether she likes it or not, the Second Amendment, far from being a “new constitutional right,” has been an express part of the Constitution since 1791.  That observation, of course, doesn’t offer any insights into the scope of that right, but it does suggest how fanciful her comparison to Roe is. 

Tags: Whelan

Machine Guns and the Second Amendment


Pro-gun attorney David Hardy attended the oral argument in Heller, and he writes :

Joe Olson and I were out drinking with Alan Gura [an attorney representing the pro-gun side] last night, and he was getting a constant stream of emails from machinegun owners on his pda, denouncing his statement that full auto arms’ possession might not be protected by the 2nd Amendment.

I think EVERYONE associated with this case who knows anything about appellate argument — and I’ve talked to many in that class — agreed that if you cannot come up with a 2nd Amendment test that lets the government [regulate] full autos, you lose. . . . I was very relieved when the Court showed signs of taking the view that Heller is asking to own a .38, not a Thompson, so we can deal with the full auto issue if and when someone brings a case (which I hope will be about ten years down the road).

This is a very important issue in Heller – the Bush administration’s notorious brief argued that, under the test set up by the appeals court (basically, the Second Amendment protects colonial militia arms and their lineal descendants, so bans on those weapons are unconstitutional), judges would have to start striking down machine-gun regulations. I made the case in The American Spectator that this wasn’t so; machine guns are not in the category the appeals court’s Second Amendment protects. This category comprises more “normal” guns, which I argued were lineal descendants of colonial arms. In addition, machine guns are not and have never been in “common use,” another of the appeals court’s criteria.

I got a barrage of e-mails  presumably similar to the one Gura got, as it seems gunnies love their full-autos and think they’re entitled to them. One good point they had, though, is that the firing mechanism of a semi-auto is more similar to that of a full-auto than to that of a colonial arm. It’s a reasonable position that if machine guns are categorically different, so are the very-common semi-automatics.

I’d still say the practical advantage of the full-auto makes it a different category (if you hold down the trigger, it lets loose a steady stream of lead), and there’s still the issue of common use. It’ll be interesting to see what the court comes up with. To keep the appeals court’s test, one has to draw a line between new guns and “lineal descendants” of old ones, with squiggles here and there to allow for “common use” – there’s no ruler to use, and the judicial system isn’t exactly well-equipped to craft one.


Re: The Roberts Court and Facial vs. As-Applied Challenges


At Skeptic’s Eye, election-law expert Allison Hayward, drawing on my post yesterday about the Roberts Court’s disfavoring of facial challenges, explains that that disfavoring should have fatal consequences for those challenging the Indiana voter ID law (in the pending case of Crawford v. Marion County Election Board).

Tags: Whelan

Second Amendment Round-Up


Today the U.S. Supreme Court heard oral arguments in D.C. v. Heller, the much anticipated Second Amendment case.  Heller involves an appeal of a D.C. Circuit decision striking down the District of Columbia’s handgun ban on the grounds that it violated the Second Amendment.  Key to the D.C. Circuit’s holding was that the Amendment protects an individual right to keep and possess firearms.

Randy Barnett provided a preview of the case in the WSJ here.  SCOTUSBlog provided instant analysis of the decision here and rounded up more here.  More from Orin Kerr here

The prevailing wisdom is that a majority of the Justices seemed inclined to embrace the individual rights view of the Second Amendment.  If so, the key question will be whether the Court specifies the level of scrutiny that should be applied to gun regulations and, if so, whether it upholds the D.C. Circuit’s application of strict scrutiny.  We’ll know for sure some time this summer.

Event Postscripts


1.  My visit to Harvard Law School on Friday reinforced my previous impression that Dean Elena Kagan is making impressive strides in reinvigorating the school.  I wasn’t quite sure what to expect at the “Celebration of Public Interest” panel in which I took part—as I put it, I had the sense that I was invited to be the skunk of judicial restraint at the garden party of judicial activism—but all went well.  And earlier in the day, I had the pleasure of discussing the judicial-confirmation process with the very vibrant HLS chapter of the Federalist Society—which, I’m told, is by far the largest student group at the law school.


2.  The video of my University of Richmond School of Law debate last month on Gonzales v. Carhart—the partial-birth abortion ruling from last year—is available here (currently halfway down the page).

Tags: Whelan


Confirmation Limbo


This column by Quin Hillyer from last Friday provides a fine overview of the current obstruction of judicial nominees, with special attention to the 600+-day ordeal of D.C. Circuit nominee Peter Keisler.  (One minor point:  I don’t agree with Hillyer that filibusters of judicial nominees are “arguably unconstitutional”—or at least I think that the arguments for that proposition are clearly without merit—but they’re clearly a radical departure from established Senate practices.) 

Tags: Whelan

The Roberts Court and Facial vs. As-Applied Challenges


While virtually everyone is focused on today’s oral argument in the Second Amendment case, I’d like to draw attention to the ruling that the Court issued today in Washington State Grange v. Washington State Republican Party.  The issue in the case was whether a Washington law providing that candidates for office be identified on the ballot by their self-designated party preference violated the parties’ First Amendment rights.  As the majority opinion states, under the law a “political party cannot prevent a candidate who is unaffiliated with, or even repugnant to, the party from designating it as his party of preference.”


The Court divided 7-2, in an unusual split.  Justice Thomas’s majority opinion holds that the Washington law is not unconstitutional on its face.  After spelling out why facial challenges are disfavored, Thomas explains that each of the objections to the law “depend[s], not on any facial requirement of [the law], but on the possibility that voters will be confused as to the meaning of the party-preference designation.”  But “because [the law] has never been implemented, we do not even have ballots indicating how party preference will be displayed,” and it is conceivable that the ballot could “be printed in such a way as to eliminate the possibility of widespread voter confusion” about the candidates’ self-designations of party preferences.  For example, the ballot “could include prominent disclaimers explaining that party preference reflects only the self-designation of the candidate and not an official endorsement by the party.”


Justice Scalia, joined by Justice Kennedy, dissented, on the ground that the law severely burdened the parties’ associational rights.


Like last year’s ruling in the partial-birth abortion case (which I discussed in this essay), this ruling signals, I believe, Chief Justice Roberts’s strong interest in reviving attention to the distinction between facial and as-applied challenges.  There will obviously be disputes over when a facial challenge should succeed (as well as over the proper standard for assessing facial challenges), as the differing majorities today and in the partial-birth abortion case show.  (The only justices in both majorities are Roberts, Alito, and Thomas.)  But this general development is a very encouraging one for the cause of judicial restraint.  As Thomas’s opinion points out, facial challenges “often rest on speculation” and therefore “raise the risk of ‘premature interpretation of statutes on the basis of factually barebones records”; they “run contrary to the fundamental principle of judicial restraint” that courts should neither decide issues before it’s necessary to do so nor formulate a rule broader than required by the facts; and they “threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.”

Tags: Whelan

This Week in Liberal Judicial Activism—Week of March 17


St. Patrick’s Day, misplaying the Irish card, and the curious generative power of contraception: 

Mar. 17     1992—By order of a trial court, the sponsors of the annual St. Patrick’s Day parade in Boston are required to allow the Irish-American Gay, Lesbian and Bisexual Group of Boston to participate in their parade. In 1994, in an error of judicial passivism, the Massachusetts supreme court rules that the parade is not an exercise of First Amendment rights and that compelling the parade organizers to comply with state law banning discrimination on the basis of sexual orientation did not raise any significant First Amendment issue. In 1995, in Hurley v. Irish-American Gay Group of Boston, the U.S. Supreme Court unanimously reverses: “The selection of contingents to make a parade is entitled to [First Amendment] protection.” 


Mar. 19     1957—President Eisenhower’s nomination of William J. Brennan, Jr. to serve on the Supreme Court is confirmed by the Senate. Brennan, a former New Jersey supreme court justice, is already serving on the Court by virtue of Eisenhower’s October 1956 recess appointment of him. Eisenhower’s selection of Brennan—which Eisenhower later identifies as one of his two biggest mistakes as president (see This Week item for March 1, 1954)—is said to have resulted from a recommendation by his campaign advisers that an appointment of a Catholic Democrat from the Northeast would attract critical voters. So much for basing Supreme Court selections on short-term political calculations. In retrospect, that recommendation appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57%-42% in the popular vote and 457 to 73 in the electoral college.

In his 34 years on the Court, Brennan deploys his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution.


Mar. 22     1972—Who knew that contraception had such generative power? A mere seven years after Justice Douglas’s majority opinion in Griswold v. Connecticut (a contrived case involving a law that had never been enforced) holds that married persons have a right to contraception hidden in the “penumbras” and “emanations” surrounding a right to marital privacy, Justice Brennan’s majority opinion in Eisenstadt v. Baird extends that right to unmarried persons. Dismissing as immaterial the marital relationship that Douglas had posited to be pivotal, Brennan, in a wondrous bit of bootstrapping, uses the Griswold holding as the basis for an equal-protection ruling (“whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike”) that undermines the very foundation of Griswold.

Brennan’s hijinx don’t end there. With Roe v. Wade already pending (it was first argued in December 1971), Brennan smuggles into his Eisenstadt opinion this assertion: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” One year later, Justice Blackmun’s majority opinion in Roe quotes this passage immediately before declaring that “[t]hat right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

The Business of Law and the Law of Business


Jeffrey Rosen has a long, interesting piece in the NYT Magazine today, on the efforts of the U.S. Chamber of Commerce and other interested parties to influence the outcome of Supreme Court rulings affecting businesses.  Somehow, without even implying anything improper, corrupt, or even noticeably politicized about the Court’s jurisprudence in recent years, Rosen manages to convey the sense that there is something malodorous about people organizing, focusing their efforts on legal affairs, hiring the best lawyers, developing successful litigation strategies and persuasive arguments, and . . . winning.

Waiting for Godot


Breathlessly anticipating Tuesday’s oral argument in D.C. v. Heller, the gun-rights case, today’s Washington Post features a front-page story by the ordinarily sober Robert Barnes, who tells us that the Second Amendment “has existed without a definitive interpretation for more than 200 years” (my emphasis).  Is that what the Supreme Court is for?  To provide “definitive interpretations” of the Constitution?

Barnes goes on to say that the Court’s decision could (again my emphasis) “finally settle the question of whether the 27-word amendment, with its odd structure and antiquated punctuation, provides an individual right to gun ownership or simply pertains to militia service.”  Oh, so that’s what all this business is about definitive interpretations.  The Court’s role is to “finally settle” questions of interpretation!

Never mind that the Court has many times overruled its own precedents.  Journalism like this reinforces the anti-republican, anti-constitutional idea that the Constitution means whatever the judges say it means, and the rest of us must simply tug our forelocks and say “sorry, squire” when we have strayed from the Court’s approved meaning.

(An aside: the Second Amendment’s “antiquated punctuation” consists of one comma we would consider superfluous today, and the “odd structure” only starts to appear odd as soon as one begins to torture the text with an interpretive end in view.)

The Legacy of Howard Metzenbaum


Howard M. Metzenbaum, Democrat, former senator from Ohio, died Wednesday in Florida at the age of 90.  His obituary in today’s Washington Post quotes Senator Edward M. Kennedy (D.-Mass.) calling Metzenbaum “the conscience of the Senate,” and the Post’s own account begins by describing him as “the Ohio senator who battled big business, stood up for labor and consumers and blocked scores of special-interest bills.”  Over in the New York Times, the obituarist oh-so-faintly remembers an episode in Metzenbaum’s career about which the Post is discreetly silent: his role in the shameful second round of Judiciary Committee hearings on the Supreme Court nomination of Clarence Thomas in 1991, in which, says the Times, Metzenbaum “hammered Mr. Thomas relentlessly on accusations of sexual harassment.”

That he certainly did.  But as Justice Thomas reminds us in his recent memoir My Grandfather’s Son, it was Senator Metzenbaum who wanted to shut out the witnesses who rebutted Anita Hill’s charges, foregoing their testimony altogether on grounds that the Judiciary Committee “could stipulate that all of that testimony will be supportive of Clarence Thomas,” and concluding that “I don’t know why there’s any reason to have to hear it.”  It was Metzenbaum, Thomas also reminds us, who unwisely suggested that perhaps John Doggett, a witness friendly to Thomas, was guilty of sexual harassment himself.

Justice Thomas does not mention something that has long been widely believed but never proven–that it was with the connivance of Howard Metzenbaum that Anita Hill’s preposterous story was first leaked to Nina Totenberg of NPR.  The senator denied it in open committee, but the charge is credible nonetheless.

Why did Metzenbaum have it in for Clarence Thomas in such an obvious and spiteful way?  Perhaps it was nothing more than a diehard liberal’s fear and loathing of a black conservative.  But it may be also that in private, Clarence Thomas had made Metzenbaum feel a fool.  As he tells it in My Grandfather’s Son, during the rounds of courtesy calls paid on senators, many weeks before Anita Hill’s allegations surfaced, Thomas sat down with Metzenbaum, who merely “went through the motions of civility during my visit.”

At one point he actually tried to lure me into a discussion of natural law, but I knew he was no philosopher, just another cynical politician looking for a chink in my armor, so all I did was ask him if he would consider having a human-being sandwich for lunch instead of, say, a turkey sandwich.  That’s Natural Law 101: all law is based on some sense of moral principles inherent in the nature of human beings, which explains why cannibalism, even without a written law to proscribe it, strikes every civilized person as naturally wrong.  Any well-read college student would have gotten my point, but Senator Metzenbaum just stared at me awkwardly and changed the subject as fast as he could.

It may be that this was imprudent, showing up (even in private) a powerful senator who could make trouble.  Perhaps Thomas thought he had nothing to lose, having encountered the bombastic Metzenbaum before.  But if it was indeed the Ohio Democrat who was indispensable to ginning up the whole tawdry second round of Thomas hearings, then he very nearly got his revenge.

One may hope that the “conscience of the Senate” is now at peace with himself in another place.  One may always hope.

Judicial Nomination “Stalemate”


The Legal Times reports on the emerging “stalemate” between President Bush and Senate Democrats over judicial nominations.

With just about 10 months left in his term, President George W. Bush is on track to leave office with fewer of his picks on the federal bench than his fellow two-term presidents Bill Clinton and Ronald Reagan.

Since 2001, Bush has had 294 district and appellate judges confirmed, but the prospect of getting many more through a Senate controlled by Democrats before Jan. 20, 2009, are slim.

By comparison, Clinton and Reagan, both of whom faced similar congressional opposition in the twilight of their administrations, each left office with more than 370 of their candidates confirmed, according to Senate statistics. And Bush is running only marginally ahead of Jimmy Carter, who left office after a single term with 262 nominees confirmed.

Bush has 187 judicial and executive nominations pending in the Senate. There are 28 pending judicial nominations — 18 for federal trial slots and 10 for appellate court seats — but none have been voted out of the Senate Judiciary Committee.

Meanwhile, President Bush has nominated Virginia Supreme Court Justice G. Steven Agee to the U.S. Court of Appeals for the Fourth Circuit. According to the AP, Agee has the support of both Virginia Senators, thus eliminating one potential excuse Senator Leahy could have for failing to move on his nomination. That said, I still do not expect Agee (or many of the other ten pending appellate nominees) to get confirmed before January 2009.

Details, Please?


In his ongoing interview with Sean Hannity on Fox News, John McCain just declared his great fondness for Chief Justice Roberts as his beau ideal of a Supreme Court justice, then mentioned Justice Alito very favorably as well.  I didn’t hear him mention Justice Thomas at all, but Senator McCain volunteered that he has disagreed with Justice Scalia in a few instances but likes him okay (I translate freely).

Well, no one agrees with any Supreme Court justice on every case.  I have disagreed with Justice Scalia’s votes and opinions a number of times myself.  But no one is interested in which cases those were, since I am not running for president.  On the other hand, it would shed some light on Senator McCain’s constitutional thinking if he were to tell us in which cases he disagreed with Justice Scalia, and why.  Will someone ask him?  He brought it up himself, after all . . .

Eliot Spitzer’s Evolving Constitution


The Wall Street Journal’s John Fund reminds us that resigning New York governor Eliot Spitzer’s lawless adventurism extended to constitutional jurisprudence:

Mr. Spitzer cloaked his naked devaluation of the rule of law with gauzy rhetoric that was perfectly pitched to make many liberals ignore his strong-arm tactics. He harshly criticized advocates of judicial restraint such as Antonin Scalia as believing in “a dead piece of paper.” In a Law Day ceremony, Mr. Spitzer was blunt: “I believe in an evolving Constitution. . . . A flexible Constitution allows us to consider not merely how the world was, but how it ought to be.” 

(HT:  Jonah Goldberg on The Corner.)  Surely we couldn’t have citizens, rather than judges, deciding within the broad bounds of the actual Constitution “how the world … ought to be.”

Tags: Whelan

Senate Dems’ Abortion Litmus Test on District-Judge Nominee


Richard H. Honaker, the nominee for a federal district judgeship in Wyoming, has unanimously been given the ABA judicial-evaluation committee’s highest “well qualified” rating.  His three decades of legal practice include service as a state assistant attorney general, as a public defender, as president of the state trial lawyers association, as president of the state bar, and as a member (appointed by the state supreme court) of state rules and disciplinary committees.  In addition, he served for six years in the state legislature, from 1987 to 1993—all as a Democrat.  (He later became a Republican.)   


So why, you might wonder, is Honaker on the Left’s hit list?  Why did it take the Senate Judiciary Committee nearly a year (he was nominated in March 2007) even to give him a hearing (last month)?  Why is he now being held up in committee?


The answer is as simple as it is revealing:  As a state legislator in 1991 and 1992, Honaker introduced a bill that would prohibit abortion except in cases of rape, incest, or of threat to the mother’s life, and in 1994 he worked to get that measure offered as a statewide initiative.* 


Never mind that opponents of Honaker’s nomination have pointed to nothing in his record that indicates that he doesn’t understand the difference between policymaking and judging.  Never mind that the unanimous “well qualified” rating from the ABA (which is certainly no friend of pro-lifers) means that the ABA committee determined that Honaker has “outstanding legal ability, breadth of experience, and the highest reputation for integrity” and “demonstrate[s] the capacity for sound judicial temperament.”  Never mind that one of his legislative opponents on the abortion bill has publicly stated:


I believe he has the potential to be one of the finest trial judges ever to serve in this state. His commitment to fairness is second to none. I can truthfully say that there is no person I would rather have as a judge on a case, no matter what side of any issue I was on, than Dick Honaker.


Every now and then, Democrats profess to be respectful of those who disagree with the Democratic party line on abortion.  Let’s see whether, and how long, Senate Democrats’ kowtowing to pro-abortion groups on the Honaker nomination continues.


* Opponents of his nomination throw in some other claims, including that Honaker has made statements about “legal philosophy” that “raise significant concerns about [his] ability to fairly and impartially apply the law,” but the evidence they offer (see, e.g., here on pages 2-3) doesn’t remotely support their claims.

Tags: Whelan

Re: Dorf’s “Nobody Here But Us Chickens”


Ed, let me add a word or two to your post below.

Not only did Dorf clerk for Reinhardt, he clerked as well for Justice Kennedy, in the very term that Kennedy wrote the infamous “mystery” passage in the Casey ruling.  (Come to think of it, the passage sounds suspiciously Dorfian.)  And if he has forgotten that, then more recently Kennedy concluded Lawrence v. Texas with this classic statement about a living Constitution:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Could there be a much clearer statement of what Dorf says no one thinks?  The framers could not know what we can know about justice and oppression, therefore we are entitled to treat their words as vessels whose contents we can change in our own “search for greater freedom.”  The phrase about the Constitution having “its [own] principles” in this passage is a mere fig leaf.  In this telling, the Constitution has no principles, only words whose meaning we can, in Humpty Dumpty fashion, change at will.  What is particularly galling is that Kennedy enlists the framers themselves as partisans of a living-Constitution approach they all rejected.  Of course no one for a moment believed such nonsense, with the possible exception of Kennedy himself.

Dorf’s Defense of the “Living Constitution”


In an essay on FindLaw (HT:  How Appealing), Columbia law professor Michael C. Dorf defends the “living Constitution”.  Dorf argues that “originalists like Justice Scalia either misunderstand or mischaracterize what [the ‘living Constitution’ metaphor] stands for.”  According to Dorf, originalists are wrong to contend that living constitutionalists “‘substitute’ their own values for the Constitution’s values, and then use those substituted values as the basis for invalidating legislative action.”  On the contrary, Dorf contends, “no serious judge, lawyer or academic argues for that.”


Oh, really?  Well, just off the top of my head, how about the Ninth Circuit judge that Dorf clerked for, notorious activist Stephen Reinhardt?  In Reinhardt’s words:  “The judgments about the Constitution are value judgments.  Judges exercise their own independent value judgments. You reach the answer that essentially your values tell you to reach.” 


And how about Barack Obama, who informs readers of The Audacity of Hope that he “taught constitutional law at the University of Chicago” for a decade?  As I set forth in my new Weekly Standard essay, Obama has explicitly proclaimed that in the “truly difficult” cases (which category is apparently sufficiently malleable to encompass easy cases like Roe v. Wade) “the critical ingredient is supplied by what is in the judge’s heart.” 


Reinhardt and Obama are perhaps more candid than many other living constitutionalists, but it’s difficult to see how the rhetoric that the others invoke (e.g., “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”) is anything more than camouflage for casting their own values in constitutional garb.


Let’s consider now Dorf’s own description/defense of living constitutionalism:


For living Constitutionalists, the act of ratification by people who are long dead, and whose numbers did not include any women or enslaved African-Americans, does not suffice to make the Constitution effective today. For us living-Constitutionalists, the Constitution’s current authority derives at least in substantial part from the fact that we the living people accept it as authoritative. And if our acceptance validates the Constitution, then … the way in which contemporary Americans understand the Constitution’s language should play a substantial role in how the courts interpret that language.


Understood in this way, the notion of a living Constitution is simply an effort to interpret the Constitution, not to replace it. Justice Scalia and others may still have reasons to prefer the dead to the living Constitution, but their core claim—that the dead Constitution is the real Constitution—proves, upon inspection, to be nothing more than an assertion of the power of the dead few to rule the living many from the grave.


This argument is deeply defective in several respects that I will only briefly outline here. 


First, as I wrote of Cass Sunstein’s similar argument in my review of his book Radicals in Robes, the claim that the act of ratification by dead white men doesn’t make the Constitution “effective today” has unworkable anarchistic implications.  Why should any of us be ruled by statutes that were enacted long ago, or that were enacted before we were born, or that were enacted before we reached voting age?  Why, for that matter, should any of us accept the legitimacy of any law that we don’t like and that we didn’t consent to? 


Second, few if any of the monuments of living constitutionalism (such as Roe)—not to mention the ongoing projects, like judicial imposition of same-sex marriage—can be seriously defended as judicial efforts to discern “the way in which contemporary Americans understand the Constitution’s language.” 


Third, precisely because originalists recognize that the Constitution leaves the broad bulk of policy decisions to the democratic processes, Dorf is wrong to contend that originalism asserts “the power of the dead few to rule the living many from the grave.”  It is living constitutionalists who are profoundly undemocratic, as they assert the power of the judicial few to rule the living many (as well as future generations) from the bench.

Tags: Whelan

Supreme Recusal? Supreme Lottery


The editors of the Washington Post are concerned that in some cases in which the norms of judicial ethics require recusal of a Supreme Court justice because of his stock holdings, there is an increased chance of a 4-4 tie among the justices still participating.  This leaves in place the lower court ruling being reviewed, but with no national effect on the legal questions that prompted the review in the first place.

I am not as concerned about this problem as the Post is, but the solution seems quite simple.  As the paper’s editors note, on the appellate courts a judge recusing himself from a panel can be replaced, which isn’t possible on the Supreme Court.  But what can be done is a solution by subtraction.  Whenever one justice informs his colleagues that he will recuse himself from a case, the remaining eight justices can determine, by lot, which of them will join him on the sidelines, making it a seven-member court that cannot deadlock in a tie.  Maybe they can draw straws.  Short straw sits it out.

No, I’m not kidding.

Wind Up the Lawsuit Machine


I can see it coming.  Where’s Barry Lynn of Americans United for Separation of Church and State when we need him?  We must rescue the republic from the terrible theocrats lurking in the corners of the chapel at the U.S. Naval Academy, secretly smiling as the American flag is dipped before the cross during the weekly church service.  Hurry, before the First Amendment comes crashing down!

Obama’s Constitution


The forthcoming issue of the Weekly Standard contains my essay, “Obama’s Constitution:  The rhetoric and the reality”.  The essay offers a critical overview of what Obama has said, and of what he has really done, on judicial nominations and constitutional law.  Here’s my concluding paragraph:


In the end, an examination of Obama’s record and rhetoric discloses the stuff he is made of—his own constitution. Beneath the congeniality and charisma lies a leftist partisan who will readily resort to sly deceptions to advance his agenda of liberal judicial activism. Given the likelihood of so many changes in the membership of the Supreme Court over the next eight years, it is particularly important that voters this November recognize the real Obama.

Tags: Whelan


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