I’m taking part in an online debate sponsored by the Federalist Society on the Court’s latest term. Other participants include (in alphabetical order) Jonathan Adler, Jack Beermann, Steve Calabresi, Chuck Cooper, Allyson Ho, Erik Jaffe, Marty Lederman, Rick Pildes, and Mark Tushnet.
Here’s my initial post in the debate (and the debate’s seventh overall):
Like Jonathan Adler, I’d like to begin by offering some general observations. (In a later post, I’ll take issue with Mark Tushnet on the value of the term “judicial activism”.)
1. For the reasons that Jonathan states, one should be careful not to draw too many lessons from a single Court term. The scaremongering from the Left after the 06-07 Term (see, as just one example, these excerpts from Ronald Dworkin’s The Supreme Court Phalanx: The Court’s New Right-Wing Bloc) was ridiculous. I stand by my own observations from a year ago (here and here), including:
If crude political shorthands must be employed, then the Supreme Court’s just-completed [06-07] term is best summarized as a small step towards the right—and towards the center. I am not contending that the Court is walking in opposite directions. Rather, after decades of liberal judicial activism on so many issues, the Court’s position remains decidedly on the left.
Let’s not give undue attention to the minor surprises of this past Term. The profile of the current Court is clear. We have—assessed against my benchmark of principles of original-meaning jurisprudence and judicial restraint—four liberal judicial activists, four strong justices, and one justice, Kennedy, who fancies himself the moral conscience of the nation. As Kennedy goes, so goes the Court on any significant constitutional issue with political coloring. That will remain the case unless and until the composition of the Court improves.
2. One welcome mark of the early Roberts Court is an emphasis on the distinction between facial and as-applied constitutional challenges to statutes, with the former facing a high bar. We saw this a year ago, of course, in the partial-birth abortion decision (as I discuss in this essay), and the same distinction was prominent in, and helped produce supermajorities in, at least three cases this past Term: United States v. Williams (federal law that criminalizes the pandering or solicitation of child pornography is constitutionally permissible); Crawford v. Marion County Election Board (rejecting a challenge to Indiana’s voter-identification law); and Washington State Grange v. Washington State Republican Party (rejecting challenge to ballot-identification law).
I confess that I don’t care much for the fuzzy concept of minimalism, largely because Cass Sunstein has made such a hash of it, but insofar as adherence to the proper standard for facial challenges is regarded as minimalism (I regard it as a tenet of judicial restraint), let’s have more of it. A statute shouldn’t be invalidated in its entirety merely because some clever plaintiff’s lawyer can hypothesize some set of facts in which the statute might apply unfairly.
3. The two worst rulings of the term, in my judgment, are easy to identify: Boumediene v. Bush (constitutional habeas rights for alien detainees at Guanatanamo) and Louisiana v. Kennedy (no death penalty for child rape). Not coincidentally, these are two of the three rulings that Rick Pildes observes that “political liberals will celebrate.” I am surprised, though, that Rick’s third ruling in this category is Medellin v. Texas, in which the Court ruled, in a superb opinion by Chief Justice Roberts, that a judgment rendered by the International Court of Justice is not directly enforceable as domestic law in a state court and that the President did not have authority to bind state courts to follow the ICJ judgment. Medellin may well be my favorite ruling of the entire Term, as I’m hopeful that it will prove a landmark in forestalling the efforts of internationalists to use treaty interpretations by international bodies to impose on American citizens obligations that American citizens won’t adopt through the legislative process. The peculiar assertion of executive authority that the Bush administration advanced—presumably on the urging of the State Department—deserved to lose, and I don’t see that defeat as “a significant blow against unilateral executive power.”