Bench Memos

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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.

Now It’s Official


PFAW now officially opposes Roberts. They’ve also released t what they call a “compelling report” to defend their position.

A Replay of the Thomas or Bork Confirmation Fight?


On Manueal Miranda compares the fight over Judge Roberts to confirmation fights gone past:

John Roberts’s nomination looked at first more like the Thomas fight than the Bork one, with liberal complaints of a limited paper trail, efforts to invade his family’s privacy, and a dishonest attack by feminists. But 75,000 pages of documents later, liberals have as much to attack Judge Roberts on as they did Judge Bork. Targets of opportunity are more pithy and witty, but no less a treasure trove of issues. Documents recording Mr. Roberts’s policy-shaping opinions over 12 years of executive branch service have revealed his views on as far-ranging a set of history-shaping interventions as the Senate has ever before scrutinized for any Supreme Court nominee.

It turns out that behind the mild-mannered judicial Clark Kent who appeared with President Bush last July is a conservative Superman. Some supporters find his lack of scarring over the years reason for suspicion, as well as his minor roles in some liberal causes. But Robert Bork received much more serious Republican fire.

Yet even though the Bork fight shows us the direction in which the Roberts fight may go, Judge Roberts’s confirmation is all but inevitable, barring some scandal–and for only one reason: Democrats do not control the Senate. That is a lesson that Democrats will trumpet in a few weeks, and that Republicans should as well. Republicans also should be careful not to think that Judge Roberts’s confirmation is due to anything else but that. The Democrats will fail to block Judge Roberts not because he’s a “moderate” or a “stealth nominee,” but simply because they don’t have the votes.

WSJ on Snowe


An editorial in today’s Wall Street Journal notes that then-Rep. Olympia Snowe was one of the sponsors of the comparable-worth legislation strongly criticized by John Roberts when he worked in the Reagan Administration, and that now-Senator Snowe is none too happy about it.

The Maine Republican hasn’t gone so far as to use the ’s’ word ["sexist"], but she’s made known her displeasure at Judge Roberts’s remarks in a 1984 memo on the subject. “I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept,” he wrote. “Their slogan may as well be, ‘From each according to his ability, to each according to her gender.’ ” Good line, that. But guess who one of the Republican representatives was?

Former Congresswoman and now Senator Snowe said in a statement that the Roberts memo “demonstrates a difference of opinion” about “the value of women’s contributions.” She added, “Hopefully, 21 years later, Judge Roberts possesses an openness with respect to issues of gender-based wage discrimination.” She went on to say she will “carefully and rigorously evaluate” his views on the subject.

Our own hope is that Ms. Snowe had used the last 21 years to learn more economics. But since she claims to be such a fan of comp worth, we called her office to find out where she stands on two comp-worth bills pending in the Senate. Senator Hillary Clinton proposes authorizing the Labor Department to set voluntary wage guidelines for various occupations. Senator Tom Harkin wants to leave the job to the Equal Employment Opportunity Commission and make compliance mandatory for every business with 25 or more employees. Senator Snowe isn’t a co-sponsor of either bill, which suggests that perhaps she has learned a little about the labor market after all, but doesn’t want to admit it publicly.

“Roberts Was Right”


about comparable worth. Here’s Diana Furchtgott-Roth in yesterday’s NYSun.

Can’t Keep My Eyes Off Of You


Boston Globe columnist Scott Lehigh won’t leave the Roberts family–today questioning parenting skills–alone.

Where’s Your Sense of Humor?


The Washington Times today won’t let the Roberts’s lawyer joke and the Left’s reaction to it die. There’s something I really like about that (not letting it die).

I Just Got This From People for the American Way, NY



Thank you for your continued vigilance and phone calls to Senators Schumer and Clinton. Your calls are sending the message: we need a rigorous advise and consent process on the Supreme Court nomination of John Roberts.

You’ve made calls and forwarded action alerts on to your friends, but now we need your help in reaching out to other New Yorkers so your senators can hear from them, too. Please join us this and every Wednesday night at our New York office to generate even more calls by phonebanking other New York PFAW supporters. It’s time to lead! Let them know what’s at stake with the Roberts nomination, why you’ve already called your senators, and now why they should, too.

I can’t say I’ve made calls, but I hope they call me!

Unborn Victims in Pennsylvania


As Mark Levin says, Pennsylvania’s unborn victims of violence act really has to make one wonder about the coherence — and sanity — of our permissive abortion laws. Some twenty-eight or so states have one of these laws. Not all the laws actually state that the unborn are persons, or even that they are human beings with a right not to be killed pretty much the same as everyone else’s right not to be killed. But they sure do seem to imply as much. Kill an unborn human individual and you get prosecuted, and punished,as if you killed anyone else. Unless, of course, you are an abortionist.

People may disagree about whether the unborn are rights bearing entities, about whether they are persons. But no one holds that the answer to the question whether the unborn are persons (or, as good as) depends upon who is asking, or on what the person asking wishes to do to the unborn individual. Everyone supposes that the answer — whatever it is — has to do with something essential about the unborn individual, that the moral status of the unborn — whatever it is — is intrinsic, that it depends upon the kind of entity the unborn is. Again, even those who favor permissive abortion laws will hold that the unborn are not persons because the unborn lack something which is essential to personhood, such as consciousness or feeling or life plans. One reason why this is so is simple enough: consider the consequences if who was a person depended generally upon whether it was useful to others to say so.

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.


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