What APSA Had to Say about SCOTUS

by Fred Schwarz

On Friday morning, at the American Political Science Association’s annual meeting in Washington, D.C., a panel of scholars assessed the Supreme Court’s 2013–14 term. The session, sponsored by the Claremont Institute, brought together Hadley Arkes, of Amherst; Sanford Levinson, of the University of Texas Law School; Ed Whelan, of the Ethics and Public Policy Center (and our own Bench Memos); and John C. Eastman, of the Chapman University School of Law. All except Levinson are NRO contributors; apologies if I have incorrectly summarized their remarks below.

When moderator, Lee Liberman Otis of the Federalist Society, asked what developments at the Court had been overlooked or misunderstood, Whelan said the Hobby Lobby case, a very narrow ruling, had been widely mischaracterized as a blanket declaration that religious beliefs are supreme over any law. Eastman decried the denial of cert (i.e., refusal to hear) in numerous cases that he felt were clear-cut errors needing correction (e.g. the striking down of Arizona’s 20-week abortion law). Levinson, while more concerned with what he sees as the Court’s pro-business, anti-union tilt, agreed that the justices need to work harder. Even when different circuits have issued conflicting rulings, he said, the Court has dodged its duty to resolve the matter. Levinson suggested that some justices may strategically choose not to hear a case when they don’t think they have the necessary five votes for their side, a maneuver he called “an arrow in [the Court’s] passivity quiver.” Perhaps, the panelists mused, there should be a separate “cert court” to remove the choice of which cases the Court will hear from the Court itself.

In response to an audience question about present-day uses of the 13th Amendment, which banned slavery, Levinson was creative if not entirely convincing. Summarizing an argument he has made with Jack Balkin, Levinson deftly used conservative tactics to support a very broad construction, invoking original meaning (the term “slavery,” he says, was understood to encompass all forms of illegitimate domination, not just chattel slavery), the Founders (who characterized taxation without representation as a form of slavery), precedent (the Northwest Ordinance, from which the 13th Amendment’s wording is drawn, contemplated multiple varieties of “slavery,” including a lack of democracy), and close examination of the text (if only chattel slavery was being banned, why does the amendment also prohibit “forced labor”?). In this view, the amendment’s second section, the standard “Congress shall have power to enforce this article by appropriate legislation,” can be used to correct any aftereffects of slavery, such as modern-day racism. The other panelists weren’t buying it, but they gave him credit for originality.

Prompted by another question from the moderator, the panelists cast about for concepts to replace the tired “judicial activism/restraint” axis. “Engagement” vs. “abdication” or “passivism” seemed no more useful. Whelan said “liberal” and “conservative” are useful shorthand terms as long as you understand their limits. Levinson invoked “Frankfurterian trust in the political process” and said conservative justices sometimes go too far by inventing “freedom from” rights. Arkes distinguished between the Court’s outright banning or requiring something and its leaving decisions to the states, and said it shouldn’t be the court’s role to rank society’s competing interests in a hierarchy, as it was called upon to do under RFRA in Hobby Lobby; these decisions should be left to the people and their representatives.

Eastman replied that when the legislative branch exceeds its authority, the courts must stop it; allowing the legislature to overstep, even in the name of restraint, is itself a form of political activism. Another panelist (my far from stenographic notes do not reveal who it was) pointed out that the liberals’ “living constitution” always ends up favoring progressive causes, since progressives always think they are on the right side of history, whereas conservatives often end up stymieing conservative causes with their insistence on originalism and judicial deference. The consensus seemed to be that judges should allow the political process to play itself out, except when they shouldn’t; and these scholars were no more able to state precisely where the line should be drawn than many others have been over the centuries.

And with that, everyone set forth into today’s Washington, a city of boxy buildings filled with bureaucrats and lobbyists, and considered what the Founders would have thought of “the legislative process” as it exists in 2014 . . .