Bench Memos

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NYT on Roberts (Again)


The NYT’s Adam Cohen has a particularly disingenuous editorial suggesting John Roberts may be a “judicial activist.” Largely relying on Roberts’ infamous dissent from denial of en banc review in Rancho Viejo, Cohen warns Roberts displays dangerous signs of activist tendencies. Ann Althouse ably dissects the editorial here. I’ve also challenged the NYT’s previous misrepresentations of this case here and here.

Naral’s New Ad



He’s a Closet Confederate!


Could everyone just stop writing for the month of August? Otherwise you wind up with pieces like this one about JR in the WashPost.

Reviewing Judicial Review


Robert Alt’s pronouncement about the originalist view of judicial review is simply not accurate. In fact, it is a subject of much debate (and writing). Unfortunately, Robert quotes only part of Art III, Sec 2, which actually states, in the next to last paragraph:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all the other cases before mentioned [see Art III, Sec 2, Par 1], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

You simply cannot discuss the context of judicial review by ignoring an integral part of Article III. Robert says, “This more generalized statement of judicial power is not without limits–it is properly circumscribed by the understanding of judicial power at the time of the framing.” That may be so (whatever that means), but more importantly, it’s circumscribed by Article III itself.

Moreover, during the Constitutional Convention, there was discussion about the Supreme Court’s being part of a council of revision, based on a proposal by James Madison, in which it would participate in vetoing legislative acts before they would become law. But it was quickly abandoned, including by Madison himself, because they didn’t want the Court involved in legislative functions. Now, I understand the difference between law-making and judicial review, but the framer’s simply did not grant the judiciary the broad power to veto, i.e., strike down, congressional acts.

And the fact that the framers enumerated specific areas of judicial authority, and authorized Congress to determine both the structure and, in essence, the extent of its appellate authority, suggests not a broad grant of power to the judiciary, but a limited one.

I am not persuaded that the framers granted the judiciary the power Robert argues for. And yet, the judiciary can’t be a co-equal branch if it has almost no authority in determining constitutional questions. Furthermore, I believe a strong argument can be made that judicial review is an implied power. After all, if a court can’t adjudicate and interpret it has no effective authority. The reason judicial review is so hotly debated, even here among conservatives, is because the issue was not a primary focus at the Convention, and its boundaries have been determined by the judiciary itself. And not surprisingly, the judiciary has concluded that its power is supreme.

As an aside, I would urge the visitors to this site to read Federalist 78 in its entirety (it’s too long to provide here). And I think most will agree that Alexander Hamilton was wrong when he concluded that, in essence, judicial review (our phrase) would not mutate into judicial supremacy.

Re: Loose Ends


Robert Alt and I will, I’m sure, never see eye to eye on some rather large issues of judicial power–well, at least not soon, anyway. So I take his hint that we should wind this down, and I will let him have the (nearly) last word.

My final promise to Robert is that I will take down my well-thumbed copy of David Currie’s so-so book The Constitution in the Supreme Court and peruse it once more, if he will accept the off-line offer of a bibliography of better books supporting my side in our recent discussion. Thanks, Robert, and may we continue this in the same room one day.


Alliance for Justice Makes Political Disagreements Sound Sinister


Re: the “Women for Roberts” presser I was at earlier this week.

Translation of their response: “No, he is a Neatherthal, you…you…CONSERVATIVES!”

There Are Women. And Then There Are Linda Chavez and Her Friends.


Where are all the labels in this CNN story? Funny, just Linda Chavez gets one:

Some women’s groups say Roberts should also face questions on issues related
to them. Several groups scheduled briefings this week to highlight areas in
Roberts’ record they say are particularly troubling to women.

They cited memos from his years as a lawyer in the Reagan administration
showing skepticism toward the right to privacy and affirmative action –
areas in which retiring Justice Sandra Day O’Connor was a swing vote.

“Just as John Roberts deserves a full hearing, so do the concerns about
women,” said Linda Basch, president of the National Council for Research on
Women, which represents about 100 women’s research and policy centers at

Linda Chavez, president of the conservative Center for Equal Opportunity,
said the recent attacks on Roberts on women’s issues were unfair.

Worth Noting


Loose Ends


Much more can be said about Matt’s posts, but I presume that he will expand on his interpretation of the political question doctrine as blocking structural issues from judicial review (and we also have to eventually wrap this up, K-Lo hints to me). As should be apparent from the last post, this view finds no support in the text of the Constitution; and the Framers–both in Federalist 78 and the debates–did not so limit judicial review. Again, Matt’s restrictive position is neither properly originalist or textualist.

As for his statements about due process, suffice it to say that he takes my reference to due process grossly out of context. I did not suggest that due process forms the basis for judicial review—it merely provided a theoretical constitutional support for a statement made by Gerry and Robby. That said, the idea that due process could be found to require that a law used to prosecute someone actually must be a properly passed law is a pretty minimalist view, contrary to Matt’s shock and horror. It says nothing of an underlying right, but rather goes to the process by which someone is deprived of life, liberty or property (i.e., the process requires that only legitimate laws may be used—not laws which are “void”). By contrast, a claim sounding in substantive due process could, for example, appeal to the ether of that oxymoronic phrase to provide the basis for why the law was unconstitutional. Accordingly, Matt’s use of the term “substantive due process”—while an admirable attempt at derision–was nonetheless legally erroneous even as to the use of the term. But, to be clear as to my position, the Courts don’t need due process to have authority for judicial review: the Constitution grants them that power in “all Cases, in Law and Equity, arising under this Constitution.”

Still More Review


Matt and I disagree on so many issues in his last posts alone that time and space prohibit me from addressing them all here. I will therefore attempt only to hit a few major points in the hopes of providing some clarification.

Matt states that “In light of the absence of any plain textual authorization of all-purpose “judicial review” (as Mark Levin has pointed out), we should presume that no constitutional issue is the business of the Supreme Court unless it can be demonstrated to be so.” This is a novel theory, but let me be perfectly clear: it is most assuredly not the accepted originalist understanding, and, to the extent that it relies on the absence of the words “judicial review” in the Constitution, it is a parody of textualism.

The fact that the words “judicial review” do not appear in the Constitution does not mean that the Constitution does not grant the judiciary that power. Matt seems to admit this: after all, he would ration judicial review to individual rights cases (although he never quite explains how the Constitution grants the courts power in those cases, while reserving it from every other kind of case). Two phrases hold the key to judicial review: first, Art. I, s.1’s statement that “[t]he judicial Power of the United States, shall be vested in one supreme Court . . .,” and Art. III, s.2’s clarification that “[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution . . . .” This more generalized statement of judicial power is not without limits—it is properly circumscribed by the understanding of judicial power at the time of the framing.

Judicial power was well understood by the framers to include the authority to review the constitutionality of legislative acts. The framers would have known that The Privy Council had struck down legislative enactments that violated colonial charters. Furthermore, in enacting the Constitution, the framers rejected a Council of Revision to review legislative enactments, because it was well understood that the Courts would have this general power. Thus, Rufus King stated at the Constitutional Convention that the Council on Revision was unnecessary “because the Judges will have the expounding of those Laws when they come before them; and they will no doubt stop the operation of such as shall appear repugnant to the constitution.” Elbridge Gerry offered similar sentiments, noting that the courts would have a check against the other branches “by their exposition of the laws, which involved a power of deciding their Constitutionality.” There are more statements from the Convention, indicating that even those like John Dickinson who disapproved of judicial review did not dispute its presence in the Constitution. (Those wishing to learn more would do well to read David P. Currie’s fine book, The Constitution in the Supreme Court: The First Hundred Years.)

And then there is Federalist 78, which shoots to the very heart of Matt’s presumption against judicial review of structural issues:

If it be said that the legislative body are themselves the constitutional judges of their own powers, . . . this cannot be the natural presumption, where it is not to be recollected from any particular provision in the Constitution. . . . It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order . . . to keep the latter within the limits assigned to their authority.

Finally, contrary to popular opinion, Marbury was not the first federal case involving judicial review. Federal courts had struck down federal law in Hayburn’s Case (1792), the Supreme Court had reviewed the constitutionality of a federal statuted, Hylton v. United States (1796), and the Supreme Court had applied judicial review to state laws in Cooper v. Telfair (1800) and Ware v. Hylton (1796). No one should therefore believe that judicial review sprang ex nihilo from Marbury.

Thus, judicial power was well understood by the framers to include the authority to review the constitutionality of statutes, and the express language of the Constitution extends the judicial power to “all Cases, in Law and Equity, arising under this Constitution.” Matt’s attempt to limit judicial review to some subset of cases is contrary to the plain language of art. III, as well as to the understanding of the framers.

Math and the Supreme Court


The Economist reports on judicial mapping.

A Final Note on Democracy and Judicial Power


In one of his Wednesday posts, Robert pooh-poohs arguments that the Court “striking down a popularly enacted law” is undemocratic or anti-democratic. He is right to note that the Constitution is itself a democratically enacted charter, of superior authority to ordinary legislation.

But if Robert was aiming his argument at me (which I suspect because he uses me as his example when hypothesizing a flagrant taking of my home), he shot wide of the mark. In all my discussions with Gerry and Robby last week, I never made the argument that all exercises of judicial power to invalidate legislation are undemocratic. Our entire set-to began with a disagreement about how to define “judicial activism,” which I said had to include two things: getting the Constitution wrong and striking down a duly enacted law.

Of course, whenever the Court acts consistently with the Constitution, there is no violation of democratic principles, whatever it does. On the other hand, sometimes when the Court acts contrary to the Constitution, and the result is that a law is upheld, the Court is acting democratically so far as current majorities are concerned, but might be said to be acting undemocratically in the larger, constitutional sense that Robert is talking about.

A Due Process Revolution?


Robert concludes his second Wednesday posting with the downright astonishing argument that all (or is it only nearly all?) matters of the constitutionality of legislation are in principle adjudicable by our courts–ultimately by the Supreme Court–thanks to the due process clause of the Fifth (and Fourteenth?) amendment. Perhaps Robert or someone else has argued this in a law review somewhere, but I confess it is altogether new to me.

And altogether unpersuasive, I’m afraid. Begin with the fact that conventionally, arguments about the basis and scope of judicial review focus on the original Constitution, before any amendments were added. I am hardly one for being conventional for convention’s sake, but here there is something inherently sensible in it, since the upshot of Robert’s argument seems to be that judicial review would have one of its principal legs kicked out from under it, had there never been a Fifth amendment. (What then were those Federalists and anti-Federalists arguing about when they discussed the judicial power under the original text?) Or is he arguing that the principles of the due process clause are somehow present even in the unamended Constitution, lurking in its penumbras?

All right, let that go. But is Robert saying that every over-ambitious use of the commerce power violates the commerce clause and the due process clause; that every over-extension of implied powers violates the necessary and proper clause and the due process clause; that every piece of pork-barrel spending that can be plausibly challenged under the “general welfare” clause would be subject to challenge as a due process violation as well?

Maybe Robert means his argument to cover only federal criminal statutes. He says the due process clause protects “the right not to be prosecuted under laws improperly passed–laws which are not law at all–in this case, because the legislature exceeded its authority.”

He calls this a “narrow understanding” of due process, but I can’t see what it has to do with that principle at all, unless one embraces the most capacious version of substantive due process I have ever encountered. For Robert’s argument invites courts to take up every conceivable instance of the question whether a law is or is not “law at all.” And I have never seen any court in our history adopt that large a view of its responsibilities to see that due process is done.

I anticipate that Robert will remind me that John Marshall said, in Marbury, that “It is emphatically the province and duty of the Judicial Department to say what the law is.” But this is one of the most frequently torn-from-context of Marshall’s many quotable lines. And in the same case he also said, “Questions, in their nature political . . . can never be made [i.e., taken up judicially] in this court.”

It is only a slight exaggeration to say that all the difference between my view and Robert’s turns on which of us is correct in understanding the relation of these lines from a case decided 202 years ago.

Duelling Presumptions


My last posting ended by taking a rather different view than does Robert Alt of the Court’s recent rulings on commerce and sovereign immunity. Now I’ll tackle our disagreements more directly.

Robert claims to embrace the idea of “coordinate branch construction” of the Constitution, and he cites some fairly uncontroversial instances of the nonjudicial branches reasoning about, and asserting, their own independent view of the Constitution’s meaning. But he insists that “[c]oordinate branch construction does not equal the political question doctrine,” and he holds that “unless the Constitution clearly reserves determination to a particular branch” other than the judiciary, then ultimately the Court has the right and duty to correct the other branches’ transgressions against the Constitution–with a final authority that cannot be gainsaid short of a constitutional amendment, I take him to be saying (if he isn’t saying that, I’d be glad to stand corrected).

Yet without the “political question doctrine,” there isn’t really much left of “coordinate branch construction,” if there is any crack through with a constitutional issue can enter a courthouse door. More importantly, when Robert insists that everything under the Constitution is the Court’s proper business unless it is “clearly reserve[d]” to another branch, I wonder what would make it clear enough for him. Does he wish for a “textually demonstrable constitutional commitment” of an issue to one of the political branches? Then he has adopted the jurisprudence of William Brennan (the last quote is from his 1962 opinion in Baker v. Carr), not that of John Marshall.

In any case, I would reverse the presumption. In light of the absence of any plain textual authorization of all-purpose “judicial review” (as Mark Levin has pointed out), we should presume that no constitutional issue is the business of the Supreme Court unless it can be demonstrated to be so. So far, I haven’t seen a demonstration (by the Court or anyone else) that the scope of the commerce power is to be policed by courts of law.

More momentarily.

Specter’s Eleventh-Hour Conversion


The debate over judicial activism, judicial supremacy, and judicial review has gone into its umpteenth round here at Bench Memos. And the more I think about those three phrases, the more the gap seems to shrink between each one and the next. The apparently most neutral of the three, “judicial review,” is a phrase wholly unknown to the Constitution, its framers, or any justices of the early Supreme Court, and came to have its present meaning–describing a power to invalidate duly enacted statutes as unconstitutional–only in the early twentieth century, during a period of heightened judicial activism and a growing belief in judicial supremacy. I don’t think the emergence of the phrase under those conditions was entirely accidental.

Robert Alt’s several postings from Wednesday (beginning here), and the responses he prompted from Mark Levin and Gerry Bradley, provide much food for thought. I will follow Robert’s example by posting more than once, in the interests of keeping things a little shorter. And I’ll begin by noting where we all seem to agree on something fundamental.

Robert is quite right that each branch of government has its own independent duty to interpret the Constitution. Whatever we call what the Court has been doing in recent decades, Robert and Gerry are correct to point out that one ill effect of the Court’s growing power has been the abdication of this responsibility by both Congress and various presidents, with increasing frequency in recent decades. “Let the Court worry about the Constitution; we’re doing politics over here” seems to be the prevailing opinion in both the other branches much of the time.

This is one of the things that makes the two letters from Senator Specter to Judge Roberts so amusing. This is the same Arlen Specter who, as I pointed out here weeks ago, has spent the last 20 years in Judiciary Committee hearings demanding that nominees pledge themselves to the broadest possible reading of Marbury v. Madison–indeed, that they pledge themselves to the historical falsehood expressed in Cooper v. Aaron that Marbury established the Court as “supreme in the exposition of the law of the Constitution.”

Now suddenly Specter is concerned (as he said in his August 8 letter) about some recent decisions in which members of the Court expressed themselves in “denigrating, and, really, disrespectful” language about the Congress. Welcome back from your coma, Arlen. The Court has been speaking disdainfully of all our elected institutions, state and federal, for a very long time, longer than you have been a senator. And you have been part of the problem.

As Hadley Arkes notes in his e-mail posted below by Kathryn, if the senator now wants more deference from the Court to Congress’s fact-finding, he is making an argument that will cut against his own longstanding desire that the Court not defer one iota to Congress on the question of abortion. But for someone who has been on his knees before the altar of the judiciary for so long, Specter’s questions to Roberts aren’t half bad. It’s just that they’re the barest beginning.

Specter’s questions do invite parallel inquiries on constitutional issues he will not want to re-open. But worse, they show the senator to be still groping his way toward asserting the prerogatives of the political branches to govern the country without the meddling of a Court that has stepped outside its proper business. These are, in truth, mewling, obsequious, almost apologetic questions. Why can’t we restore the “rational basis” test for judging whether Congress has properly used its power over commerce, Specter wants to know? And where do the justices get off insisting that the Congress do its “homework” to the Court’s satisfaction before “abrogating the states’ Eleventh Amendment immunity” from their own citizens’ lawsuits, he whines?

Specter’s questions skate across the surface of our present problem, rather than plumbing its depths. What he ought to be asking is, what gave you judges the idea that the “rational basis” of federal legislation was any of your business? And where on earth did you conceive the anti-textual, anti-historical notion that there is any such thing as a states’ immunity from the suits of its own citizens under federal law?

Hadley is right on the money, though. If such questions even occurred to Specter, they would unavoidably be accompanied by even sterner questions he dare not ask, concerning the Court’s intrusion into abortion policy and other matters that concern large numbers of Americans even more.

More shortly.

True Confession in Las Vegas


As noted earlier, Justice Stevens fessed up in Sin City yesterday. According to an admiring Linda Greenhouse in today’s New York Times, Stevens confessed to a Las Vegas audience that twice last term he voted to uphold laws which, were he a legislator, he would have voted against as a policy matter. One case was Kelo, the already infamous Takings case from Connecticut. The other was the medical marijuana case, Gonzales v. Raich.

Now, some people may care which policies members of the Court would pursue if they were legislators. But it’s a bad sign that its is Big News when a Justice announces that, on no less than two occasions, he actually followed the law rather than his own prepossessions.

It would indeed be Big News — or at least, very interesting — if Stevens had instead said something like this: “My policy preferences are neither here nor there, and I assume nobody came today to hear about them. But in two cases last term I came to the conclusion that the Court could not strike down laws which, were I a legislator, I would have voted against because they were unconstitutional. The Court was obliged to decline to declare these acts unconstitutional because of limitations inherent to the judicial task, such as the need to lay down bright line rules, the difficulty of divining legislative intentions, and like matters. But I guess this just goes to show that there is often a big difference between what the Constitution requires and the constitutional limitations amenable to judicial enforcement.”

Better Late Than Never . . .


Robert Alt’s belated posts on last week’s exchange (largely) between Matt Franck, Robby George, and me on judicial review clarifes that exchange, and moves it forward on several fronts. Mark Levin’s short response to Robert does, too. To these contributions I should like to add two points.

One. Mark is quite right that today, and as a practiccal matter, what most people mean by “judicial independence” is “judicial supremacy” or, better, judicial dominance of the other branches on all matters constitutional. On this question judicial conservatives are often no better than judicial liberals.

Look, for example, at the opinons in the RFRA case from 1995, City of Boerne v. Flores. There the conservative wing of the Court held that the latest judicial interpretation of the Free Exercise Clause–established by a five-to-four vote in the Smith case in 1990–settled what Congress may think Free Exercise means. This was so even where Congress would exercise (as it did with RFRA) the ostensibly broad power given to it by section five of the Fourteenth Amendment to enforce (in effect) the Free Exercise Clause.

Robert Alt says that for years Congress and the Supreme Court have been co-dependents, each enabling the other’s aggrandizement of power. Just so. In fact, I meet Robert’s wager, and raise him another level of dependency. I think the dirty little secret of congressional acquiescence in judicial usurpation is that Congress likes it. After all, how handy is it for an elected representative to say to the irate folks back home about flag burning or the Pledge or abortion or porn at the local library or any other issue that makes the pols squirm: “It is out of my hands. The Courts are handling it. Sorry. I wish I could help.”

Sometimes the pols do a bit more. Sometimes one or two or a few fulminate and remonstrate and, sometimes when really worked up into a lather, go on Larry King and rattle the saber. Once in a while they introduce legislation–a constituional amendment, perhaps–to take back an issue hijacked by the courts. But how often do these “stand-up” reps really mean it? How much political capital do they really put up–before they shut up?

Storm Clouds Gather


Robert Novak suggests that the battle over Roberts is only just beginning.

Preview of the Next NARAL Ad Campaign



Naral Pro-Choice America, which recently pulled an advertisement against Judge Roberts because of criticism of its inaccuracies, is also expected to begin a new advertising campaign by the end of the week, said people briefed on its plans.

The new advertisements are expected to discuss broader issues about privacy rights as well as Judge Roberts’s work as a lawyer arguing for the first Bush administration in the 1991 case of Bray v. Alexandria Women’s Health Clinic, defending the right of abortion opponents to protest outside clinics. The previous Naral commercial drew criticism for linking Judge Roberts’s role in that case to clinic bombings that took place years later.

“Unwise” Supreme Court Decisions



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