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Bench Memos

NRO’s home for judicial news and analysis.

The Court and Administrative Agencies



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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



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How Cool Is John Roberts?



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AP:

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



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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



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

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Even the New York Times Gets the Joke



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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



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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



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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.

RE: Diminishing Returns



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I am reassured by the latest remarks of my friends Messrs. George and Bradley. We appear to agree to disagree about the meaning of “judicial activism,” and as for the rest, our dispute is now very much at the margins of jurisprudential subtleties if it amounts to anything at all. Thanks for the exchange, fellas. As the old hymn says, there will be peace in the valley . .

Diminishing Returns on Judicial Activism?



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Matt Franck wonders whether the exchange on “judicial activism” has “reached the point of diminishing returns.” Probably, at least insofar–as Matt rightly says–it is about what a phrase does, or should mean. Definitions as such do not much matter. But a glance at Matt’s most recent intervention shows that the subject matter (by any name) is very important indeed.

Anyway, we are made bold to offer this restatement and clarification of our position.

We understand Matt to say that our position is, somehow, caught up in two propositions about the Court and the Constitution which he criticizes. Maybe he is saying that we hold the two propositions. Either way, we don’t hold them. And we think nothing we said yesterday implies or suggests otherwise.

The first notion is “judicial supremacy.” We take it to be the proposition that whenever the Supreme Court pronounces on the meaning of a constitutional provision, that’s it–for everybody. (Matt describes what we have in mind here as the idea that “the Court has the final word on all the constitutional questions it addresses.”) To be sure, the litigants in a case are bound by the Court’s constituional interpretation, of course. But the doctrine of “judicial supremacy” goes further than that. All lower courts (state and federal) as well as all other governmental actors–Congress and president included–must treat the Court’s word as if were the Constitution. This notion of “supremacy” is contrary to the more modest views of judicial reach propounded by Jefferson, Jackson, and Lincoln (among others). Lincoln, for example, famously held that though the Taney Court settled the fate of the litigants in Dred Scott, the Court did not and could not settle the meaning of the Constitution once and for all. “If I were in Congress,” Lincoln opined, “and a vote should come up on a question whether slavery should be prohibited in a new territory, in spite of that Dred Scott decision, I would vote that it should.”

We do not subscribe to the broad notion of “judicial supremacy” described above.

We said yesterday that a litigant has a right not to have an unconstitutional rule of law applied to him by a court. But that does not imply or entail “judicial supremacy”; it means only that a court has the final say on the constitutional question it address in a particular lawsuit, for purposes of resolving the case or controversy between these parties. To say (as we do) that a court is obliged to set aside, in the course of litigation, any putative legal rule which conflicts with the Constitution does not commit us to any position on the obligations of non-parties towards the court’s idea of what the Constitution means.

The second notion is, as Matt describes it: “all constitutional questions are finally committed to [the Court] for resolution.” Matt supplies the “political question” doctrine as an example of constitutional questions committed to other (i.e., non-judicial) branches for final resolution. We agree with Matt: Some matters of constitutional meaning have no place in Court; some are finally committed to other branches.

Now, does our contention that every litigant has a right to have no unconstitutional rule of law applied to his case contradict our agreement with Matt on “political questions”? No. To say (as we do) that the meaning or limits of a particular constitutional term may be committed to a non-judicial branch is NOT to condemn some litigants to unconstitutional treatment. For one thing, most applications of the “political question” doctrine (and like matters) are jurisdictional; that is, the court from which a litigant seeks relief dismisses the case entirely, declaring the matter a “political question.” This result leaves the erstwhile party to the tender mercies of, say, the Executive or Legislative branch. But in no such instance does a court apply an unconstitutional rule of law to any litigant.

Maybe, sometimes, a court faces a constitutional question during the course of litigation in which dismissal is not an option. If the question is one committed to another branch for final resolution, and the court says so, what then do we have? Do we have a court treating a litigant according to an unconstitutional rule of law? Not at all. We have instead a court applying a constitutional rule whose content, the Constitution tells the court, is to be supplied by another branch. The court that applies, in turn, this rule to a litigant does what the Constitution requires the court to do.

Re: That Kennedy Op-Ed



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Senator Kennedy’s effort to distinguish away the letter by previous solicitors general explaining why SG office documents should not be disclosed–including his invocation of Walter Dellinger’s recent waffling statement–is laughable, for the reasons that I have explained here and here.

Watch Out, Toads



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Next week I will be exploring the habitat of the arroyo toad, the “hapless” creature that, in Judge Roberts’s words, “for reasons of its own, lives its entire life in California.” I promise not to take any steps to render moot the controversy over the question whether the Endangered Species Act can constitutionally apply to these toads, but I can’t guarantee inaction by my kids if any toads cross our path.

I expect to do little or no posting next week, so I will miss the opportunity to comment on the oh-so-predictable lamentations of left-wing groups that they have discovered to their shock and dismay that Judge Roberts will not entrench their radical agendas in the guise of construing the Constitution, and that they are therefore duty-bound (and fundraiser-bound) to oppose his confirmation. It will be interesting to see how many Senate Democrats jump when Ralph Neas and Nan Aron give the command.

Comparable Worth of Homemaker vs. Lawyer



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It’s rather amusing that the gender activists, misreading Roberts’s joke, consider it “Neanderthal” to raise the possibility that the work of homemakers might be more valuable than the work of lawyers. Or perhaps they think it improper for anyone, especially a man, to opine on the relative worth of vocational choices that women make. Either way, their position would raise some serious conflicts with the wacky “comparable worth” system of centralized wage-setting that they advocate, for that system, by its very nature, would require a comprehensive calculation of the relative worth of all the various job choices that men and women face.

On the question of the comparable worth of homemakers vs. lawyers, I have little doubt that the work of a good homemaker (whether male or female, if I must fake a bow towards androgyny) in raising the next generation of citizens is far more valuable to society than the work of almost any lawyer (whether male or female). That is certainly the case for my wonderful wife.

A couple observations from the great G.K. Chesterton come to mind. First, on the supposed unimportance of the homemaker’s role:

To be Queen Elizabeth within a definite area, deciding sales, banquets, labors, and holidays; to be Whiteley within a certain area, providing toys, boots, sheets, cakes and books; to be Aristotle within a certain area, teaching morals, manners, theology and hygiene: I can understand how this might exhaust the mind, but I cannot imagine how it could narrow it. How can it be a large career to tell other people’s children about the Rule of Three and a small career to tell one’s own children about the universe? How can it be broad to be the same thing to everyone, and narrow to be everything to someone? No; a woman’s function is laborious but because it is gigantic, not because it is minute.

Second, there is Chesterton’s delightful quip about the feminists of his day: “Twenty million young women rose to their feet with the cry ‘We will not be dictated to,’ and promptly became stenographers.”

That Kennedy Op-Ed



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You gotta smile at the sheer nerve with which Ted Kennedy (or his staff ghostwriter) makes a bad argument. Out of the mainstream! Fundamental rights! Commitment to core constitutional values!

The tone is set right from the start, with this bloated bit of question-begging: Kennedy wants to “determine whether [Roberts] will uphold the fundamental principles of our Constitution and laws to continue our nation’s march of progress or whether he will adopt a cramped and contorted view of our Constitution that will turn back the clock.”

Hmm. March of progress, or turn back the clock. Okay, one of these has a good four-beat rhythm for chanting, so let’s hear it–

TURN BACK THE CLOCK! TURN BACK THE CLOCK!

Repeat until Senator Kennedy runs from the room.

“Ed Helms takes a look at the f*#@ing awesome job Supreme Court nominee John Roberts might score.”



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The Daily Show on the Roberts’s state of play–See “The People’s Court” and “All the President’s Menus.”

I Really Think



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Ted Kennedy’s op-ed in the WashPost today should have been titled “Why Our Version of Roberts’s Views Matters.” Clinic Bomber. Women Oppresser. Racist. Whatever other ridiculous try is down the road….

Comparative Worth Strikes Back



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And Naftali Bendavid and Jan Crawford Greenburg argue in today’s Chicago Tribune that women’s issues are emerging as the major issue to attack Roberts. Exhibit A is a joke he made in a memo about whether a government lawyer could receive an award for women who advance professionally. Roberts said that this would be fine, but added, “some might question whether encouraging homemakers to become lawyers contributes to the common good.” You see, this Roberts fellow made a funny about lawyers, not housewives, but those who kneel at the altar of Our Lady of Perpetual Gender Discrimination are too humorless, or else too obtuse to see it that way.

The rest of the evidence the authors cite for Roberts gender insensitivity is largely a rehashing of issues like comparative worth that Ed Whelan has ably crushed on this page. The one claim I had not seen is that Roberts opposed an initiative offered by some states to charge women lower tuition than men—something Roberts called presumptively unconstitutional. (While gender-based scholarships may accomplish the same goal through less-direct means (which, I would add, raises similar concerns), his assessment is correct, particularly given that this opinion was written pre-Grutter.) As Doug Kmiec points out in the article, on all these issues–comparative worth, differential pricing, etc.—there is a simple defense: he was right.

I agree with Ed and others on this page that we should welcome a fight based on issues like comparative worth. The problem, of course, is that it is always easier to distort and smear than it is to give a reasoned explanation. It only takes the feminist cabal a few words to say “He hates women; he opposes equal pay,” but explaining why that is a fabrication takes at least a good sentence. If the public pays attention long enough to listen to (or, perhaps more accurately, if the media actually covers) the actual debates, then we will do fine in spite of Schumer’s circus-like antics. If, however, public exposure is limited to sound bites on the evening news or in opposition ads, then the debate will be much less fruitful.

Roberts and the “Gender Gap”



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In sharp contrast to (dare I say it?) the much more measured New York Times piece, today’s front-page Washington Post article on the Roberts records that were released yesterday clumsily plays the gender card. Its inflammatory headline, “Roberts Resisted Women’s Rights,” makes it seem as though Roberts was opposing established legal rights when he was in fact fighting highly controversial leftist proposals involving gender quotas and comparable worth.

Let’s examine briefly the seemingly cumulative specifics in the tone-setting first two paragraphs of the article. With two exceptions, those specifics amount to nothing more than gender quotas and comparable worth.

The first exception is Roberts’s advice on the proposed Equal Rights Amendment. The article asserts that “Roberts urged President Ronald Reagan to refrain from embracing any form” of the ERA. The documents that I have seen show, rather, that Roberts pointed out to others in the White House that “[m]any of the President’s objections to the ERA are based not on the particular language of the [then-pending] proposal but rather the vehicle of a Constitutional amendment.” These same objections—that the ERA would “override the prerogatives of the States and vest the federal judiciary with broader powers” and that it is “not necessary to secure equal rights” (since ordinary legislative action was available for any steps deemed appropriate)—would apply to any other version of the ERA. In short, Roberts was explaining the clear implications of established Reagan administration policy.

Second, the article cites Roberts’s quip questioning “whether encouraging homemakers to become lawyers contributes to the public good.” I acknowledge that this red-hot memo involving a Clairol shampoo contest somehow escaped my attention. But when one learns the context 11 paragraphs later, it is clear that Roberts’s quip is a joke aimed at lawyers, not at women. But a sense of humor is in short supply among the gender activists, and perhaps the new rallying whine on the Left against Roberts will be “That’s not funny!”

Still More on Judicial Activism



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I was in meetings all day yesterday on my campus, and only had a little time last night to digest the remarks of Robert Alt, Rick Garnett, and Robby George and Gerry Bradley since my posting Wednesday on “judicial activism.” I have no quarrel with anything Rick said, so I’ll leave him out of what follows.

For Bench Memos readers, this discussion may already have reached the point of diminishing returns. But here goes anyway. Let me begin by suggesting that our entire dispute is about a phrase of probably very limited utility. “Judicial activism,” as some recent research shows, appears to have been coined by Arthur M. Schlesinger, Jr., in a January 1947 article for Fortune magazine (see Keenan Kmiec, “The Origin and Current Meanings of ‘Judicial Activism,’” 92 California Law Review 1441 [2004]), and in its early use it was a term of praise as often as of opprobrium. But I do believe in speaking and writing perspicuously, as Robby and Gerry put it, and I think that begins with using language in a way that, if possible, comports with common sense. And how anyone other than a legal scholar could call a judge who tolerates democratic decision-making, however wrongly, an “activist” is beyond me.

Robert Alt asks, “if a case is clear, and the law is profoundly unconstitutional, and the issue is plainly and properly before the court, then how can it be said that a judge is meeting his or her constitutional duty by committing the act of upholding the unconstitutional law?” Good question, but if he’s asking how I can say it, my answer is that I didn’t. What I did say is that a judge in such a situation has failed in his duty, but that it would make no sense to call that failure an instance of “activism,” since that word indicates an interference with democratic decision-making, not a letting it alone. Robert’s horrible hypothetical about censors coming after us here at NRO prompts this reply: would he call those federal judges who presided unquestioningly over Sedition Act prosecutions 200 years ago “activists”? I would not. And democracy, not judges, took care of the Sedition Act.

Of course, much turns on what we mean by an issue “plainly and properly before the court.” I would prefer to speak more exactly about whether a constitutional issue is plainly the court’s business to resolve at all. An undercurrent in the responses I’ve gotten is an implicit loyalty to the notion of judicial supremacy–that the Court has the final word on all constitutional questions it addresses, and that all constitutional questions are finally committed to it for resolution. But if the idea makes sense that some constitutional issues are “political questions,” matters properly decided by the other branches and not the courts–and this is an idea traceable back to Marbury v. Madison itself–then judicial supremacy is an affront to the Constitution itself. Some constitutional questions are conclusively committed to the nonjudicial branches of the government–and if they answer those questions wrongly, there is no judicial recourse for the unconstitutional action.

Robby and Gerry tend in the same direction as Robert Alt when they assert that “[e]very litigant in an American court . . . is entitled to have only constitutionally valid rules applied to him.” If what they mean is to state a judicially vindicable right never to be subject to unconstitutional action by the government–and they’ll be sure to let me know if that is an inapt characterization of their argument–then I can’t figure out what gave them this idea, since I can’t find it in the text of the Constitution, The Federalist, the early practice or opinions of the Supreme Court, the commentaries of any jurist in our early history, or the principles of Abraham Lincoln for that matter. This George-Bradley axiom would seem to make every constitutional question a judicial question (in principle if not in practice), and that’s asking for trouble, as Lincoln reminded us in his First Inaugural.

It should be clear by now 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. For most of its history, I think the Supreme Court held to this distinction too, although it began to collapse in practice by the turn of the twentieth century and was more or less obliterated in speech as well as in deed by the 1960s.

But let us suppose that both conditions are met: a law is unconstitutional and it is the business of a court to say so. Then it is a duty for it to say so, and it is wrong not to say so. But I don’t see what mileage there is in counter-intuitively calling it “activist” when it fails in this duty. Robby and Gerry say the judge in such a case would be an “accomplice to oppression.” That’s strong language, and it may in some interesting sense be true, but I can’t say I’m stirred by it. What the judge is decidedly not, on the other hand, is an obstructor of the majority will, which strikes me as a necessary component of activism. He is wrongly a facilitator of the majority will, but that is not the worst thing he can be, since remedies remain available to the people.

A historical example or two. Andrew Jackson appears to have thought the Supreme Court under John Marshall was “activist” (though Jackson didn’t have the expression) in McCulloch v. Maryland when it upheld the constitutionality of the Bank of the United States. (There are times when I read Justices Scalia and Thomas today and suspect they actually agree with Jackson, but that’s another matter.) Certainly Jackson thought the Marshall Court was mistaken, and let’s assume for a moment that he was right. His solution was simple: to veto the Bank’s re-chartering in 1832. By contrast, when Roger Taney’s Court struck down the prohibition of slavery in federal territories in Dred Scott in 1857, Lincoln’s Republican Party did not have such an easy response, because that was a truly “activist” decision, interposing wrongly in political decision-making. If this difference between wrong restraint and wrong activism isn’t self-evident, I’m near to giving up on English speech.

But now Robby and Gerry add another layer to their argument. Since they have defined “activism” in a special way conditioned by the style and materials that lead a judge to his decision or vote in a case, they now feel entitled to acquit all “originalists” of activism ahead of time. I am as wedded to originalism as they. But a plausible case can be made–has been made–that Taney practiced a kind of “originalism” in Dred Scott, that the Lochner Court did so in 1905, and that the Court that interfered wrongly with the New Deal in the 1930s did so as well. If the mistakes of these Courts were “honest” ones, then Robby and Gerry are willing to call them something other than activist. Perhaps they think these were not honest mistakes (or in one or two cases, not mistakes at all). But now the shoe is on the other foot! I wouldn’t hesitate to call them activist, and I won’t trouble myself to engage in the psychobiography of examining whether the judges made “some more or less conscious choice to substitute [their] judgment for traditional source material.” They wrongly interfered with democracy, and that is an end of it for me.

Open embrace of the “living Constitution” is a relatively recent phenomenon. Apparent allegiance to originalism is the main pattern in Supreme Court history, and it remains a strong thread running through much mistaken decision-making even today. In the state sovereign immunity cases of the last ten years, and even in the commerce cases, both factions of the justices claim the mantle of originalism, and in apparent good faith. By Robby and Gerry’s lights, there are no activists in those cases. I see it otherwise.

By now I have gone on too long, and I will have to leave it to another time, and perhaps a private exchange rather than this blog, to respond to Robert Alt about what I called the activism of Justices Scalia and Thomas. I will here rely only on the unsatisfactory argumentum ad verecundiam, and say that inasmuch as Scalia and Thomas part company with the infallible John Marshall (at least as I understand him), I remain their critic in these matters. Liberal law profs like Cass Sunstein who focus on the votes of Scalia and Thomas to invalidate federal (but not state) laws are marketing a half-truth, but not an untruth altogether, since it is actually hard for me to name the last time the Court properly undertook to strike down any federal law.

Born and Raised



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The Media Research Center’s blog has more on the ridiculous AP story yesterday on John Roberts’s hometown.

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