Bench Memos

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More Letter Thoughts


Philly’s DA is charging the alleged killer of a woman who was 5-months pregnant with the murder of both the woman and her unborn baby. These cases highlight the idiocy of our current law. If a mother chooses to abort, she’s carrying not a baby, but a fetus (which, we’re told, has no right to life). If the mother’s fetus is terminated without her consent, then she’s carrying a baby not a fetus (which has a right to life). Maybe Specter and his staff can write a letter to Roberts about this.

RE: Specter’s Letter


Well, it’s good to know that Specter and his staff can write. But can they think clearly? I find the attack by liberals like Specter, Feinstein, Leahy, etc. on judicial review a turn for the good, but alas, I’m sure they don’t realize what they’re saying. I notice missing from Specter’s letter is the Court’s striking down the partial birth abortion ban. I wonder what he thinks of that?


Specter Writes to Roberts


Activism and the Administrative State


Mark Levin’s concern is somewhat clearer to me now. He writes: “The massive administrative state Congress has created is no more responsive to democratic decision-making and majority will than the judiciary.” Agreed–though it is considerably more responsive to Congress than is the judiciary. (It is even pretty responsive to members of Congress as individuals; just ask anyone who needed a new passport in a hurry and called his congressman’s office for help.)

Mark goes on: “The federal court docket is clogged with lawsuits brought by tens of thousands of private citizens challenging the decisions of tens of thousands of unelected bureaucrats.” Mark would know better than I whether this is merely thousands, or tens of thousands. But take it as given. He wants to know whether I think it is “judicial activism per se for a court to hear such cases, or, if a court struck down an agency regulation, whether that was judicial activism.” Stating the question that broadly, I’d say my answer is no, it’s not “judicial activism per se” for a federal court to strike down an agency regulation–though there would be a great deal of difference between striking down an agency decision or regulation on statutory grounds, and doing so on constitutional grounds. Wouldn’t there?

Mark also wants me to elaborate on two things I said, and my doing so may illuminate more about the above. The first is that I would generally hold for courts not intervening to answer questions whether Congress has unconstitutionally delegated its legislative authority to the bureaucracy. Take it as a basic constitutional principle that the people have delegated the national legislative power to Congress, which cannot pass it on to others in any secondary delegation. Nevertheless, it does not strike me as an easy thing to say, in many cases, just what powers accorded to administrative agencies are legislative, and what are executive, and what are judicial. Much fun can be had at the Supreme Court’s expense for its having held that certain agencies exercise “quasi-legislative” and “quasi-judicial” powers while not really being either legislatures or courts, but (sort of) executive-branch agencies (Justice Scalia has mocked this sort of reasoning, and it’s fun to read him). But 200 years after he said it, there is still truth in James Madison’s remark that “[e]xperience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces–the legislative, executive, and judiciary.” I don’t know how one would go about demonstrating that a court’s discrimination in these matters is to be preferred to Congress’s discrimination.

Unless, that is, someone’s rights are placed in jeopardy. And that brings me to Mark’s second request for elaboration, of my remark that “the question whether a law is unconstitutional [is] separate from the question whether a federal court has any business ruling that it is.” The business of courts is to vindicate the rights of individuals. But it has never been demonstrated that any individual has a constitutional right, which can be vindicated in a court of law, to be free from the strictures of any and all unconstitutional actions of legislatures or other government agencies. Let us suppose, for instance, that Congress has overstepped the bounds of its power to regulate commerce “among the states,” even its power to undertake those things “necessary and proper” to such regulation. (Readers of this site can need little persuading that such a thing can happen, or has happened!) The question then becomes, is such an overstepping the business of courts, or of Congress itself as it responds (or fails to respond) to the interests and wishes of its constituents? My answer is that it is not the business of courts, unless as an ancillary matter the legislation or duly-authorized executive action happens to violate a constitutional right quite apart from the commerce-power or implied-power issue.

I expect that my answer will not sit well with Mark, who is on record in Men in Black, for instance, as condemning the remade Roosevelt Court for its approval of an extremely broad use of the commerce power after 1937. I teach that episode as a good-news story in the history of the Supreme Court’s power in American life. But Mark and I may have to appeal to our wise editor as to whether our going any further rounds on this subject is a fit use of space at Bench Memos.

The Ruth Bader Standard


Progress for America has a mini-documentary out on how civil the Ginsburg SCOTUS hearings in the Senate were.


Dahlia Lithwick’s Gender Gap Problem


There’s a lot to be said against her latest bit of anti-conservative snark—for example, she never quite explains what’s wrong with the claim that Roberts’s comment about lawyers and housewives was an anti-lawyer joke, not an anti-housewife one. But this passage was especially odd: “Another memo has Roberts blasting the proposed Equal Rights Amendment, dismissing it as an attempt to ‘bridge the purported “gender gap.”‘ In a later memo, Roberts referenced a proposal from a Reagan supporter for elevating Sandra Day O’Connor to chief justice and appointing a second woman to replace her if Warren Burger retired—and ‘Presto! The gender gap vanishes.’ Roberts’ response: ‘Any appointments the president makes will not be based on such crass considerations,’ Roberts added. ‘The president’s strong record on women’s issues—as it becomes more widely known—should suffice to close the “gender gap.”’

“Oddly enough, even Sandra Day O’Connor isn’t above such crassness. But then she lived through the ‘purported’ gender gap in a way Roberts did not.”

The phrase “gender gap” has most frequently been employed to describe the tendency of women to vote Democratic at higher rates than men (or, sometimes, just their tendency to vote Democratic). That seems to be pretty clearly the way Roberts was using the phrase. His use of “purported” could have several meanings: Given that the pattern was only beginning to be emerged and noticed, it’s hardly odd that he should have used it. But whatever he meant by “purported,” if Roberts was using “gender gap” in the standard way then Lithwick’s comment about O’Connor makes no sense. Did O’Connor live through the 1980 election in a way Roberts did not?

“Woman Problem”


Dhalia Lithwick on John Roberts’s “contempt for all things female.”

Maybe once the humidity is way down again in the northeast…?

“Taking” Roberts’s Rep


Elsewhere on NRO today, Leonard Leo takes on the James Burling/Pacific Legal Foundation piece Jon Adler linked to Friday.

Bloggers read Roberts Docs


Judge Roberts & the 1977 Protocol I to the Geneva Conventions


The more you learn about Judge Roberts, the better he looks.
Ed Morrissey at Captain’s Quarters has a fascinating post–as a result of his study of some of the Roberts files from the Reagan era made available last week. The specific materials in question deal with Roberts on the laws of war. The most interesting relate to the 1977 Protocol I to the Geneva Conventions.

We’ve talked about Protocol I a lot at NRO. I’ve addressed it here and here, for example, and the nonpareil team of David Rivkin and Lee Casey has written extensively on it (see, e.g., here and here). It grew out of the fashion of the times (i.e., the 70s and early 80s), which was, insanely, to try to extend the protections the Geneva Conventions provide for privileged combatants (precisely because they conduct war in a civilized manner) to insurgencies and terrorist organizations (even though they conduct themselves as barbarians, in total disregard of the civilizing aims of Geneva). To its great credit, the Reagan administration refused to be pressured into signing on to a treaty that would imperil American national security–ignoring protests that it was arrogant and, of course, “unilateralist.” Unlike virtually all of our European and NATO allies, the U.S. rejected Protocol I.

Well it turns out that Judge Roberts was smack in the middle of this history, which–20 years later–is once again so relevant.

Morrissey reports that the materials just made available contain a brief memo, dated May 8, 1985, in which Roberts appears to support (by lodging no objections) the position of the uniform military that the Protocols should be rejected because they “would treat many terrorist organizations as if they were countries engaged in war, legitimizing their activities and offering them protections and courtesies that should not be extended to common criminals.”

And–talk about history repeating itself–there is a subsequent July 1985 memo in which, as described by Morrissey, Roberts, upon briefly reviewing the earlier memo and the Joint Chiefs’ argument, observes “that the State Dept. wanted the Protocols ratified to show that the Reagan administration took a less unilateral approach to foreign policy.” Happily, President Reagan took a more unilateral approach.

My only quarrel with Captain Ed’s otherwise superb report and analysis stems from his suggestion that Senate Democrats are likely use these memos in an effort to tie Roberts to the Gitmo detentions. Only a handful of Democrats, representing the hard Left, actually believes the terrorists trying to kill us all should be treated as if they were honorable soldiers and given Geneva Convention protections. Guantanamo Bay may offend Jimmy Carter, but it does not offend most sensible Democrats. More to the point, regarding savages as unlawful combatants and subjecting them to humane confinement is not the least bit offensive to the vast majority of Americans. We should welcome a fight over Gitmo if the Left is foolish enough to want one.

“Civil Rights”


is where the Dems think they can get Roberts, according to a piece in the Miami Herald today:

When confirmation hearings begin Sept. 6, Democrats on the Senate Judiciary Committee will concentrate on Roberts’ writings that shed light on his views of affirmative action, voting rights, pay equity and discrimination, aides and activists said.

That focus has evolved over the past several weeks, even though the most vocal opposition to Roberts has come from supporters of abortion rights. Senate Democratic aides and strategists said Democrats had more to gain by portraying Roberts as outside the mainstream on broad questions of fairness than on a polarizing subject such as abortion. Even if they can’t defeat Roberts, they hope to define his conservative values in ways that will hurt Republicans and help Democrats in the 2006 congressional elections.

RE: Activism


If Matt didn’t understand the post, then I wasn’t clear.

In his reply to Robert, Robby and Gerry, Matt argued, among other things, that for there to be judicial activism there must be “interference with democratic decision-making” and “obstruct[ion] of majority will.” (Of course, these are not necessarily the same thing.) Matt also said that “I regard the question whether a law is unconstitutional as separate from the question whether a federal court has any business ruling that it is.”

I was/am trying to flesh this out a little more by example. The massive administrative state Congress has created is no more responsive to democratic decision-making and majority will than the judiciary, which is why I used it as an example to question Matt’s points. (I anticipate Matt saying that Congress has the power to reign in the bureaucracy, so if the people want change, they can elect a new Congress. But Congress also has the power to reign in the judiciary, and not doing so doesn’t make the judiciary’s actions in certain respects any more constitutional.)

The federal court docket is clogged with lawsuits brought by tens of thousands of private citizens challenging the decisions of tens of thousands of unelected bureaucrats. I asked Matt whether it was judicial activism per se for a court to hear such cases, or if a court struck down an agency regulation whether that was judicial activism. (The point being that by acting, in Matt’s view would the judiciary be exercising power over, in essence, congressional authority given that these agencies are congressional creations?) He didn’t understand my questions, and I don’t understand his answer.

In fairness, Matt points out that I “explicitly” barred him from addressing the constitutionality of congressional delegation. Still, Matt did dip his toe into that water: “On the basic constitutional question of delegation vs. nondelegation, I would say that I favor noninterference by the courts (though there might be particular cases where I would conclude otherwise).” Having now commented, perhaps when Matt has the time and inclination he can elaborate.

Now, why did I so confound Matt by asking him to put aside the constitutional issue (the constitutionality of delegation) and focus on the jurisdictional issue (judicial authority)? Out of allegiance to Matt. In his reply to Robert, Robby and Gerry he wrote, “I regard the question whether a law is unconstitutional as separate from the question whether a federal court has any business ruling that it is.” Perhaps this bifurcated construct needs a little more work.

What does this have to do with judicial activism or judicial restraint, Matt asks? I believe judicial activism is more than “interference with democratic decision-making” and courts acting as “obstructors of majority will,” which seemed to be Matt’s emphasis in his earlier post. It’s certainly part of it. But it also includes, for example, federal courts interfering with private activity where neither they nor the elected branches have constitutional authority. While the framers certainly did not create a judicial oligarchy, nor did they create a parliamentary government.

I am out of time for now and gone for a day or so, but I shall return.

The Court and Administrative Agencies


Let me see if I understand Mark Levin’s question. Putting aside, as he suggests, the question of the constitutionality of Congress’s “delegation” of much rulemaking and adjudicative authority to administrative agencies, Mark wants to know whether I want the Court to refrain from intervening in cases where citizens challenge “decisions by unelected civil servants.” But if we put aside the question of whether an agency is constitutionally authorized to do what it does, then every such case resolves itself into an issue of statutory construction. That is, what does the authorizing legislation require as mandatory for the agency officials, and what does it permit as discretionary, and so forth?

There are better and worse ways to approach such questions–there is a whole body of doctrine about this sort of thing these days under the rubric of the “Chevron standards” (named for a pivotal case involving the oil company)–but I don’t see how the question of judicial activism or restraint regarding constitutional review enters into it. Or perhaps I have misunderstood Mark’s question altogether.

On the basic constitutional question of delegation vs. nondelegation, I would say that I favor noninterference by the courts (though there might be particular cases where I would conclude otherwise). But, again, Mark is explicitly leaving that question aside. So I’ll confess I’m confused about just what he wants to know.

Wiki on Roberts


How Cool Is John Roberts?



As a lawyer in the Reagan White House, John Roberts scoffed at the notion of elevating Supreme Court Justice Sandra Day O’Connor to chief justice as a way to close a political gender gap, calling it a “crass political consideration.”
That might lose him a few crass women senators though.

Judicial Activism


I’ve been gone 5 days, but let me nonetheless chance a quick comment on the judicial activism debate. While I find myself in agreement with much of Matt’s last post, I am having some difficulty with his point that there can only be judicial activism if there is “inteference with democratic decision-making,” if a judge is an “obstructor of the majority will,” etc.

Much of our governance consists of unelected administrative bodies issuing regulations that are no more reflective of majoritarian will (public or congressional) than decisions issued by courts. (I am putting aside for now the constitutionality of Congress’s delegation of broad powers to many of these administrative agencies, which Robby and Gerry seem to defend in the context of the New Deal.) Much federal litigation surrounds challenges to the administrative state, i.e., decisions by unelected civil servants. Is it Matt’s position that the Court must never involve itself in such cases because 1. these administrative entities are extensions of Congress and part of the Executive Branch and only those two branches have the jurisdictional authority to determine redress (if any); and 2. the Court’s intervention would be “activist” per se since elected bodies created the agencies and they are reflective of majority will? Some clarification would be useful if not to others, to me.

Re: Even the NYTimes


Not to doubt the Times, but they did have the advantage of NRO explaining the joke to them all day yesterday.

Even the New York Times Gets the Joke


This article in today’s New York Times provides additional perspective on whether the inability of some folks on the Left to understand a joke somehow means that Judge Roberts is (in the vicious words of NOW’s president) a “Neanderthal”:

Some critics have made much of Mr. Roberts’s jocular 1985 aside in a memorandum about whether an administration aide could be nominated for an award celebrating her transition from homemaker to lawyer. The comment: “Some might question whether encouraging homemakers to become lawyers contributes to the common good.” A (perhaps not terrific) joke about lawyers has been interpreted in some quarters as an insensitive critique of women.

But another document from that same year shows that when it came to discussing women’s roles, Mr. Roberts could be a sensitive New Age guy. On June 14, 1985, in a briefing memorandum for a presidential news conference, he noted that a proposed description of President Ronald Reagan’s tax proposals “assumes that the auto worker’s wife will be a homemaker, rather than a wage earner.”

So he added: “To preclude suggestions that the president’s model American family has the wife at home, we recommend that this example include alternative descriptions of the wife. (For example: If his wife is a homemaker, she gets to put more money, tax free, into an IRA; if she is also employed, the reduction in rates will enable the family to keep more of the money both hardworking parents earn.)”

Anti-Roberts on the Right


My friend Jim Burling of the Pacific Legal Foundation thinks John Roberts will be a “disaster” for property rights on the Court. This is largely based upon Roberts’ representation of Lake Tahoe against landowners before the Supreme Court and a law review note they wrote in 1978. Like other Roberts critics on both left and right, I think Burling places too much weight on Roberts work as a private attorney. I’m also unconvinced a 27-year-old law review article proves how Roberts would rule in cases today.

But let’s say Burling is correct. Does this mean Roberts was a bad choice? Not at all — and I say that even though I agree with him that courts greatly underprotect property rights. It is inevitable that even a solid conservative justice will occasionally disappoint on high profile issues. Justices Scalia and Thomas have disagreed on many important points, ranging from the First Amendment, property forfeiture, executive power during wartime, and the standard of judicial review of agency decisions. At least one of them was “wrong” in each case, but that doesn’t mean either one is a “bad” justice. Thus, even if Burling is correct — and I hope he’s not — I don’t think this is a sufficient basis for opposing Roberts’ confirmation or believing that he was a “bad” choice for the court. Even the best conservative nominee will disappoint in the occasional case, and we should not expect otherwise.

The Call for More Documents


As the pressure groups on the Left carry out their pre-planned strategy to try to build opposition to Judge Roberts through procedural objections aimed at the White House, rather than substantive objections aimed at the nominee himself, it is worth bearing in mind two important points about the whole document release issue:

1. There are more high-level, highly sensitive internal memoranda available regarding Judge Roberts’ executive branch service than there have probably been about any other nominee in history. Literally tens of thousands of pages have been released from John Roberts’ tenure as Associate Counsel to President Reagan and Counselor to the Attorney General. These documents contain remarkably candid and unvarnished expressions of opinion on subjects both legal and political by the nominee. They provide a better window into the nominee’s thinking — at least when he was in his 20s — than reams of dry and carefully-edited law review articles would have. Ordinarily, memoranda written by senior aides to the Attorney General or to the White House Counsel would never see the light of day in a confirmation hearing. They are virtually all protected by executive privilege, and all implicate the important interests underlying that privilege. (Does anyone believe, for example, that the Associate Counsels in the White House right now are not writing their memoranda to Harriet Miers differently than they would have just several short months ago?) Yet, essentially through historical accident, far more of this material is available regarding Judge Roberts than has ever been available before. The Reagan Library had already made public many of Roberts’ Associate Counsel files under the Presidential Records Act before his nomination, which made it untenable for the White House to withhold the rest. And the Clinton Administration unilaterally waived privilege with respect to the Reagan Justice Department records. As a result, the Senate and the public now have in their hands an enormous volume of material that they would otherwise be complaining bitterly about not being able to see.

2. The Deputy Solicitor General records — the only ones not being released — are likely to be the least illuminating of all the records from Roberts’ previous stints in government service. That is because the Deputy SG is, by and large, a reader of memos, not a writer of them. Roberts’ SG files probably contain little else besides draft briefs, perhaps with his handwritten comments on them, and appeal memos and other documents written by others and received by him. It is utterly predictable that the groups and the Roberts critics are going to claim that the really important documents are whatever documents they haven’t seen, but it is also utterly wrong. The SG files will tell us far less about Roberts’ own views, because they will contain far less of his own writing. And what writing there is will be focused on highly technical legal issues and arguments, rather than the sorts of salacious political, policy, and personal tidbits that have been exciting the press in the recent archives releases. The fact is that the juiciest stuff by far is almost certainly now in the public domain.

It is also worth noting that whatever John Roberts wrote on the appeal recommendations and other memos forwarded by career assistants would have been written directly on those memoranda, which were prepared by career staff. Even if one were to accept Ted Kennedy’s and Walter Dellinger’s recent arguments that there should be a different rule for the two political appointees in the SG’s office than for the career lawyers — and, in my view, the argument is completely wrong, as the function of the “political” deputy is precisely the same as that of the career deputies — there would be no practical way to separate Roberts’ handwritten notations from the writings that even Senator Kennedy and Dellinger appear to agree should never be disclosed.


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