Bench Memos

NRO’s home for judicial news and analysis.

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



“The Only Thing We Were Guilty of Was Understatement”


Ralph Neas from his press conference Wed. (I’m just getting around to it on CSPAN now). Hard to believe Neas would ever be guilty of such a thing.

Here’s a Good


Feinstein, Cmte Gal


At a time like this a Senator Kate O’Beirne would be really sweet to have on the Senate Judiciary Committee.

Pretty Swift


that Feinstein and Neas didn’t wind up the only story in D.C. Wednesday. Nice to have Mary Ellen Bork in there.

I Feel


“Women for Roberts”


I was emcee at the “Women for Roberts” press conference this morning at the National Press Club in D.C., right down the hallway from that People for the American Way presser. Here’s how I introduced the group:

So-called women’s leaders have been in hysterics ever since President Bush announced D.C. Circuit Court Judge John Roberts as his choice to replace Sandra Day O’Connor on the United States Supreme Court.

Kim Gandy, president of the National Organization for Women, has likened John Roberts to a Neanderthal.

One commentator referred to Judge Roberts’s “contempt for all things female.”

Eleanor Smeal of the Feminist Majority has assured her troops that the judge will be “a solid vote against women’s rights.”

Well, these women gathered up here with me this morning are about to throw a little much-needed cold water on the August rhetorical heatstroke that’s coming from the Left side of the Beltway–(and also, as it happens right down the hallway from here).

I’m personally happy to be here today as a friendly neighborhood alternative to the Mainstream Media—no offense to those of your present. I’m the editor of National Review Online, which you can find on any computer near you, much to the dismay of anyone who’s working in their war rooms right now to end the Roberts nomination. Whereas the Beltway Hometown Paper gave you the laugh-out-loud ridiculous headline on Friday: “Roberts Resisted Women’s Rights,” gave you a more grounded read of what the young lawyer actually wrote back during the Reagan administration. John Roberts at the time, of course, did not–as every woman up here with me would agree—”resist women’s rights.” He did, however, speak sense to a lot of comparable-worth nonsense.

These women join me here today, too, to point out what is obvious, I think, to most Americans: That “women’s issues” are America’s issues. That the Supreme Court impacts women in all sorts of ways beyond the one that drives some so mad that one of the loudest “reproductive rights” groups in town would create and distribute and defend a deliberate, disgraceful lie of a television commercial, which has been so thoroughly discredited by now that I need not waste anymore time on it.

Without further delay, I will now introduce you to some women who, after a careful look at the facts available, and in some cases because of personal experience, are encouraged by John Roberts and who are even—yes it’s true–excited to support President Bush’s nominee for the Supreme Court.

Meet your first “Woman for Roberts”—although if she’s the first woman you’ve met who supports Roberts, you really need to get comfortable and stay awhile….

Linda Chavez, and Mary Ellen Bork, Wendy Long, Karen Kerrigan, Connie Mackey, Brigida Benitez all spoke…

Review and Things


Let me pick at this narrow point raised by Robert and others here. He contends that judicial review and judicial supremacy are two different things. But as a practical matter today, there is no difference, is there? In fact, every small effort by Congress to exercise its legitimate and explicit power to limit the judiciary’s jurisdiction is met with howls for judicial independence. And any president who would dare to defy a court decision today, in the exercise of his own constitutional power, would likely face impeachment. So, I don’t buy the distinction between judicial review and judicial supremacy in the current environment. Indeed, Robert notes correctly that both elected branches have conceded as much, .

Moreover, the Constitution leaves it to Congress to establish most of the judiciary. Federal district and appellate courts, among others, exist because Congress says-so. Their numbers and jurisdiction are determined by Congress. Congress determines the number of justices who will sit on the Supreme Court. And there is no explicit provision in the Constitution for the power of judicial review itself. It’s an implied power. It is difficult to believe that the framers intended such an institution to hold sway over the very Congress that created it, or major parts of it.

Specter’s letters are absurd because he believes in judicial supremacy when the Court advances an agenda he supports. He has never joined any House efforts, or pursued efforts on his own, to assert congressional authority.

Rather than lauding the brilliance of Marbury v. Madison, an honest debate over judicial review is long overdue. Rather than the judiciary determining for itself what its power should be, Congress and the states should be strongly urged to participate — perhaps resulting in a constitutional amendment more clearly defining the power of the courts. As unlikely as this is today, what’s the alternative? More judicial usurpation? Of course, if we had a majority originalists on the Court, the need to address the systemic problem might be lessened for presumably these justices would adhere to a restrained approach to judicial review. But I can’t say that’s occurred very often in our history. The history of the Court is one of ever-expanding dominance over the other branches. (Every now and then the Court issues a promising decision suggesting it has previously gone too far, but promising is all it turns out to be.)

Of course, the Court isn’t alone in overstepping its authority. Congress and the Executive do as well, but usually not at the expense of each other. (At the expense of state power and individual liberty.) The struggle for power between Congress and the Executive has pretty much played out as the framers’ planned. But not so with the judiciary. And the root of the problem is judicial review.

Whose Way?


As reporters finalize stories on People for the American Way’s charge today that John Roberts is extreme, remember to consider recent amicus briefs filed by PFAW:

People for the American Way opposes . . .

pornography filters on public library computers;
regulation of hardcore internet pornography;
restrictions on simulated child pornography;
school choice;
voluntary prayer in public places.
People for the American Way supports . . .
deleting “under God” from the Pledge of Allegiance;
redefinition of traditional marriage;
voting rights for felons;
forcing the Boy Scouts to permit openly gay scoutmasters;
partial birth abortion;
judicially imposed tax hikes;
removing the Ten Commandments from public settings;
racial quotas in college admissions.
Next time PFAW talks about the mainstream, consider the source.

Judicial Review and Specter


What, then does all of this talk of judicial review have to do with Specter’s letters, which complain about the Supreme Court’s decisions striking down congressional enactments in Lopez, Morrison, and Garrett? Specter suggests these decisions are activist, and argues for greater deference for legislative fact finding. While there is a general presumption in favor of the constitutionality of congressionally-passed legislation, that presumption is predicated upon the understanding that Congress fulfills its collateral duty of passing only legislation within its constitutional competence. As the McCain-Feingold example illustrates, however, many in Congress now view those determinations to be outside their scope, so that they can pass legislation they believe to be unconstitutional, while leaving it to the courts to figure out the details. Admittedly, this is in large measure a result of the Cooper-judicial-supremacy understanding of judicial review, but there is more to it than that. For years, the Supreme Court had a co-dependent relationship with Congress—each facilitating the other’s aggrandizement of power. Thus, Congress yielded to the Courts as the sole arbiter of all things constitutional, and the Supreme Court signed off on Congress’s increasingly bloated theory of its own power. Regrettably, it has gotten to the point that even reliable Congressmen no longer understand the first branch to be one of limited powers—at least, they give no hint of this based on the legislation they offer and support. Findings are larded into the record without serious consideration, and these same findings are in turn used to support boilerplate language concerning Congress’s authority to pass particular legislation under provisions of the Constitution intended to be limited, but now relied upon to be plenary grants of power. So in response to Specter, the enforcement of these constitutional limitations by the Court is not judicial activism, even where Congress disagrees. It is not the assertion of will over judgment. Rather, it is simply the Court carrying out its constitutional duty to use judicial review as a check against the flagrant abuses of the legislative branch.

Is Judicial Review of Constitutional Questions Anti-Democratic?


There have also been various rumblings about the anti-Democratic nature of striking down a popularly enacted law. This line of argument seems to neglect that the Constitution itself was Democratically enacted, and is superior to simple legislative enactments. (Yes, the process wasn’t perfectly Democratic, but neither is our system of passing laws, which includes the non-proportional Senate as well as the anti-Democratic check of Presidential veto.) Consider the following hypo: Angered by the Supreme Court’s recent decision in Kelo, the legislatures of two-thirds of the states convene a convention, during which they recommend an amendment clarifying that taking private property for the purpose of transferring said property to private entities in order to enhance tax revenue does not constitute public use. Three fourths of the states ratify the amendment. Congress, in clear violation of the amendment, subsequently proceeds to take Matt’s house to build an outlet mall. Would the Court be acting anti-Democratically by striking down the taking as violative of the constitutional amendment? Does it act anti-Democratically when it enforces other provisions enacted by Constitutional conventions in the several states, such as the Commerce Clause? And even if it were, in some sense, anti-Democratic, does that mean that it is not a legitimate part of our constitutional system? Or is it like the veto, which likewise is intended to serve as a check to unconstitutional legislation (but again does NOT serve as a basis for precluding judicial review)?

The Power of the Court to Interpret the Commerce Clause


Matt argues that the Courts have no business deciding a Commerce Clause case “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.” He argues that “[t]he 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.” First, I would submit that his view of the business of the courts does not comport with the text of the Constitution or the view of the Founders. Unless one sips particularly deeply from the Caroline Products footnote 4 Kool-Aid, Art. III’s grant of the judicial power of the United States to the Supreme Court and inferior tribunals is not simply limited to cases of individual rights, but on its plain terms extends to all cases or controversies arising under the Constitution. Marshall rightly understood this general grant of “judicial power” to include the power of judicial review (which is not inherently limited to individual rights cases), and the founders generally saw the courts as exercising a check on the other branches. Second, Matt’s repeated questioning of the basis for Gerry and Robby’s assertion that an individual is entitled to only have constitutionally valid rules applied can be answered by the text of the Constitution: specifically the Due Process Clause. Even a narrow understanding of Due Process would encompass 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.

A Review of Judicial Review


I have resisted rejoining the discussion of judicial activism (which morphed into a discussion of judicial review) because I thought that we had wandered from practical topics to academic ones less relevant to Roberts’s nomination. However, Specter’s recent misguided letter to Judge Roberts emphasized that some elements of judicial review will be relevant to the nomination process, and so I offer a few thoughts about the recent discussion between Matt, Gerry, Robby, and Mark. Given the length, I will comment in several posts.

Gerry and Robby ably point out the difference between judicial review and judicial supremacy. The prior does not require the latter. Or, to put it in wonky terms, Marbury does not require Cooper v. Aaron’s delusions of grandeur about every page of the U.S. Reports constituting the supreme law of the land. There is ample room for coordinate branch construction. Each branch has a duty to interpret the Constitution. At a elementary level, this is accomplished by Congress passing laws which it believes to be constitutional, the Executive by signing and enforcing laws it believes to be constitutional laws, and the judiciary interpreting the laws. The branches need not agree. Thus, Jefferson instructed his U.S. Attorneys not to enforce the Alien and Sedition Acts because he believed the law to be unconstitutional, even though some courts, and implicitly Congress in passing the law, had expressed opinions differing from his. To provide another example, in 1862, Lincoln’s Attorney General was asked by Treasury Secretary Chase whether a Black men are “citizens of the United States, and therefore competent to command American vessels?” Finding that the binding precedent of Dred Scott was limited to the facts, law, and ultimately parties of the case, the Attorney General found that Black men born in the U.S. were citizens, and therefore could command U.S. vessels.

However, the fact that the other branches could exercise their powers of constitutional interpretation regarding these issues (as they could on any constitutional issue) does not remove these issues from the proper jurisdiction of the Court. Coordinate branch construction does not equal the political question doctrine: just because another branch is capable of interpreting a question doesn’t mean that the issue is withheld from the other branches (or, more specifically, from the jurisdiction of the Court), unless the Constitution clearly reserves determination to a particular branch. In the cases of the Commerce Clause, for example, there is no such plain reservation of the issue, and so I must respectfully disagree with Matt concerning the appropriateness of courts exercising judicial review by striking down laws which have nothing to do with interstate commerce.

The writers on this page have done well to illustrate that the legislative and executive branches have a duty to interpret the Constitution. Unfortunately, if one reads the floor statements on McCain-Feingold, or the signing statement of President Bush for the same bill (in which both branches declared their respective belief that sections of the bill were unconstitutional, but suggested that it was not their job to make such a determination), it becomes clear that these branches have bought into the theory that it is exclusively the Court’s job to make constitutional determinations. This is wrong. However, we should not make the opposite error and presume that the courts have no proper authority to review the constitutionality of these enactments.

You Gotta Love Framing the Hearings This Way


Manny and Me


I agree with Manny Miranda that Roberts’ confirmation is inevitable “barring some scandal.” (Remember Doug Ginsburg?) I think I agree with Manny that the reason is that Democrats simply do not have the votes–and that there is no reason other than that. I am not sure, though, what exactly Manny has in mind. I will therefore state what I have in mind.

I think that Roberts will draw between 20 and 30 negative votes when finally his nomination is called to the Senate floor. The naysayers will be almost all Democrats; maybe all will be Democrats. Call these Senators the “hard-core antis.” What I mean is this: Given Roberts’ impeccable character, lawyerly competence, clubbable personality, and, yes, his habitual caution, these 20-something senators will be voting against the most confirmable nominee we are likely to see from a Republican president . The lesson will be that they will vote against any high Court nominee a Republican president sends up. (In saying that I make the assumption that pure politics, if not political and moral conviction, weigh heavily against nominees even less obviously opposed to Roe, secularism, and the homosexual insurgency in the courts than Roberts is.) I assume that if President Bush had gone–or if he should go–further downmarket to appease alleged Senate “moderates,” some Republican senators under pressure from their social conservative constituents will jump ship.

(I disagree, by the way, with Manny’s call that Roberts is a “conservative Superman.” The record does not support such a judgment. It rather seems to me that Roberts offered up, in all the thousands and thousands of pages recently released, no more conservative opining that any Republican lawyer working for any Republican president would be expected to exhibit in the course of a decade’s toil.)

Barring scandal, we are going to find out soon just how many senators the extreme Left owns, how many senators the Nan Arons and the Raplh Neas of our time can command when they make it a matter of party discipline. And that is how many senators President Bush should never again care one whit about offending, especially when he chooses his next candidate for the Supreme Court.

Reading Roberts’s Memos


The Boston Globe strikes a few cautionary notes about Roberts’s Reagan Administration memoranda. The article begins:

Lawyers almost never speak for themselves. Private attorneys offer their clients’ views. Justice Department lawyers carry out the president’s policies. Trial judges follow precedents from higher courts. Even appeals-court judges usually incorporate their colleagues’ thinking into their written opinions.

The problem of how to separate a judicial nominee’s views from his employer’s did not start with John G. Roberts Jr., whose thousands of pages of papers from his years in President Reagan’s Justice Department have deluged the media in recent weeks. The question has hung over Supreme Court confirmation fights for decades, and the record suggests that anyone other than an academic has enough wiggle room to avoid being held responsible for his or her writings.


Subscribe to National Review