July 26, 2007
Questions and Answers:
Hi everyone. It's a pleasure to be a part of this exchange. I start out with a question: how do conservatives (a diverse group, I recognize) and libertarians view the Term? The view from the left seems pretty uniformly to be a mix of depression and dismay, perhaps mixed with some sense that Justice Kennedy might put the breaks on a true counterrevolution against the jurisprudence of the Warren Court.
Was this term an unmitigated success for the right? (Unmitigated is obviously overbroad given MA v. EPA, but you get the point.) On economic issues, business fared very well. On social issues, we had both the abortion and race decisions and seemingly no strong counterexamples.
But what do the tea leaves show? Is the daylight between Justices Scalia and Thomas and the remaining conservative justices actually significant if the goal is to correct perceived excesses and wrongs of the Warren Court era, or is the jurisprudential approach of the Chief and Justice Alito on important questions in substance another route to exactly the same destination?
I ask because, while the Court this Term decided some notable questions, so much more remains to be addressed. An obvious example is the Gitmo cases, which will be argued in December. If the District files for cert. in the Parker guns case (disclosure: I work for them on it), it's a lock for review. More at the heart of common ideological battles will be questions of religion (for which the Freedom from Religion case may be a prelude) and how broadly to interpret the civil rights laws (ditto for Ledbetter). There also seems an absolutely foundational debate over the death penalty brewing only barely beneath the surface, though the conservatives seem clearly to be winning there (with Justice Kennedy joining with the other side only on reasonably limited questions). Hudson v. Michigan suggests the prospect of substantially limiting the exclusionary rule. And on, and on.
So, in sum, is the handwriting on the wall that the Roberts/Kennedy Court will finally begin the process of a much broader reassessment and undoing of the Warren Court's jurisprudence than Rehnquist was ever able to accomplish? Or is the jury very much still out?
Let me try to get the ball rolling by answering some of Tom's interesting questions:
1. How should conservatives and libertarians view this term?
Much depends on the type of conservative or libertarian that you are. There is considerably greater disagreement over basic principles on the right these days than on the left. However, I think that the proper assessment is cautious optimism.
In this term, conservatives have made some real, but only incremental gains. The school cases have banned some of the more extreme forms of affirmative action in primary and secondary education. However, I think that Justice Kennedy's concurrence still leaves a great deal of room for AA programs with "individualized consideration" of applicants, along much the same lines as Grutter and Gratz did for higher education. In my view, there is no principled distinction between "individualized consideration" racial preferences and "pure" preferences, but Kennedy clearly thinks otherwise.
Gonzales v. Carhart upholds a federal ban ban on some types of partial birth abortions. This is a win for social conservatives, but one with limited impact because 1) some types of late term abortions are still permitted, and 2) Over 90% of abortions occur in the first trimester.
In these cases, there is no indication that Kennedy is willing to categorically forbid affirmative action or reverse Roe v. Wade in the foreseeable future. Thus, conservatives have made some modest gains at the margins, but the status quo remains for the most part intact.
Wisconsin Right to Life is a much clearer victory for conservatives (as well as libertarians). While the Court didn't strike down the provision of the McCain-Feingold law that forbids corporate and union-sponsored election ads within 60 days of a federal election, it did undercut it to such an extent as to virtually nullify its effects.
However, I am troubled by the 5-4 nature of this decision, as I was troubled by McConnell v. FEC and related cases. Until very recently, it was common ground between libertarians, liberals and (eventually) most conservatives, that government should not be allowed to censor political speech, and especially not on the grounds that some groups are able to engage in "too much" speech relative to others. With the rise of the campaign finance debate, many (though not all) liberal scholars and jurists have defected from this consensus. As a result, an important aspect of the right to free speech is now dependent on the fragile partisan balance on the Court.
Advocates of campaign finance regulation are one vote short of getting pretty much everything they want. That is a very strong position for them to be in with a Democratic president likely on the way.
Finally, it is worth noting that, in addition to Mass. v. EPA (noted by Tom), an important conservative and libertarian cause - property rights - suffered a major setback in Wilkie v. Robbins. Ironically, this setback was at the hands of the Court's conservative bloc, over the dissent of two of the Court's liberals. I have discussed Wilkie in detail in these two Volokh Conspiracy posts:
And also here (focusing on the flawed reasoning endorsed by Justices Scalia and Thomas): Volokh Conspiracy #3.
Overall, conservatives have made some incremental gains this term, despite taking one important loss at the hands of liberals (Mass. v. EPA) and one self-inflicted wound (Wilkie). However, liberals need not be nearly as pessimistic as many seem to be.
The Court has pretty clearly moved slightly to the right. It was a center-right Court before, centered mostly where Justice O'Connor was. It's now a center-right Court, centered mostly where Justice Kennedy is, which turns out to be mostly a slight bit to the right of Justice O'Connor. (Note that Justice Kennedy voted with the majority in all but 2 cases this Term.)
So we see the Court moving to the right on campaign speech and on race preferences. It might move to the right on the endorsement test under the Establishment Clause, if the Court agrees to a case on the subject soon. But the differences have on balance been fairly slight, and are likely to continue that way.
I think the recently concluded Supreme Court term establishes three things. First, and foremost, the appointments of Chief Justice Roberts and Justice Samuel Alito are so far a home run for President Bush and his chief legal policy advisor Attorney General Alberto Gonzales. Bush and Gonzales outsmarted the left wing crazies by putting forward two impeccably qualified, brilliant, and politically savy nominees. That much has been clear for over a year. The just concluded Supreme Court term establishes that Roberts and Alito are in the mold of Justices Scalia and Thomas even if they write narrower less controversial opinions. This is just what the current Supreme Court needed. Roberts and Alito are politically savy enough to be able to win Justice Kennedy's critically important fifth vote, but they appear so far to be solid textualists originalists. The first lesson of the just concluded Supreme Court is that Bush and Gonzales outsmarted Chuck Schumer, Ted Kennedy, Dick Durbin, the New York Times editorial page, and the faculties of all the top law schools.
The second lesson of the past court term is that this is a very closely divided court with lots of 5 to 4 decisions where Justice Kennedy is the critical fifth vote. This was true on partial birth abortion, affirmative action, standing in religion clause cases, campaign finance First Amendment issues, antitrust cases, and death penalty cases. While the Court has moved modestly to the right as a result of Justice Kennedy replacing Justice O'Connor as the median justice, the shift is marginal. One appointment and all the progress made by the Roberts and Alito appointments could be reversed. On January 20, 2009, six of the nine justices will be 70 years old or older. By the end of the next President’s term in office Justice Stevens will be 93, Justice Scalia 76, Justice Kennedy 76, Justice Souter 73, Justice Ginsburg 79, and Justice Breyer 74. Given these numbers, it is obvious that the whole future of the Supreme Court is at stake in the 2008 presidential and senatorial elections. Unless Republicans get their act together fast, any marginal progress made recently in combatting hard left wing judges will be erased.
The third lesson of the recently concluded Supreme Court term is just how left wing the justices appointed by Bill Clinton have turned out to be. They are so enthusiastically for partial birth abortion -- sucking a partially delivered fetus' brains out of its head as it writhes in agony -- that Justice Ginsburg read her opinion on this matter from the bench. They are so enthusiastically for assigning children to schools on the basis of race that Justice Breyer read his opinion from the bench on this issue as well. They favor clamping down on First Amendment free speech rights by making it illegal for citizens to run advertisements complaining about Senators filibustering judicial nominees. They want the federal courts to have power to strike down President Bush's Faith Based Policy Initiative and would even allow a citizen to sue a President for using federal funds to proclaim Thanksgiving to be a holiday or from giving a speech at a religious college. Bill Clinton's justices are for partial birth abortion, for assigning children to schools on the basis of racial quotas, against religion in the public square, and against First Amendment rights for core political speech. The justices Hillary Clinton or Barak Obama would appoint would be just as bad. The third lesson of the just concluded Supreme Court term is that if Hillary Clinton or Barak Obama win in 2008 we are going to see a radical left wing Supreme Court unlike any we have ever experienced to date.
Steve and I probably agree on more here than we disagree on. So let me note just a few points.
Bush's Supreme Court strategy.
I think that the practice of Borking can still work if the opposition party controls the Senate and the nominee has a large paper trail. Neither of these conditions obtained with Roberts, and only one (paper trail) with Alito. I agree that both nominees did well before the Senate. But I doubt that was the decisive factor. It's true that the Democrats could have filibustered if they so chose. But the Republicans would have responded with the "nuclear option," which rendered the filibuster a less than effective threat. Steve and I will have to agree to disagree on Harriet Miers as this is probably not the right place for an extensive debate about her.
Roberts, Kennedy, and precedent.
I agree with most of what Steve says on precedent. But two caveats: In the case of the Supreme Court, deciding "cases and controversies correctly" must include giving accurate and clear guidance to lower courts for future cases. Most of the cases the Supreme Court grants cert on are picked precisely because of their precedential significance, not because they are intrinsically important. Thus, the incoherent mishmash created by Roberts and Kennedy (perhaps more by the latter) is lamentable.
Like Steve, I welcome the Leegin decision. But I think it says little about the Court's broader approach to precedent. Antitrust has for decades been a "common law"-like field where the Court often overrules precedent in order to keep up with new insights developed by economists. A willingness to reverse antitrust precedent doesn't necessarily translate to other fields.
Tom asks what should be made of the "daylight" between the two new justices and Justices Scalia and Thomas.
Jack Balkin has blogged that the distinction may be one of style, not substance – that at the end of the day, there is no real difference between "bombthrowers" and "dismantlers." But I tend to agree with Cass Sunstein (Minimalists vs. Visionaries, Wash. Post, 6/28/2007) and Tom's final sentence – the jury is still out.
Media accounts note that the two new justices often voted on the same side as Justices Scalia and Thomas. But there is a big difference between voting on the same side and voting the same way. Most notably, the two new justices have shown greater reluctance to overturn precedent. To be sure, the issue was academic in many instances, where there was no fifth vote. That explains a wide range of cases, from Texas redistricting last Term to the Faith-Based Initiative case this Term. But that wasn't true in this Term's McCain-Feingold case; Justice Kennedy announced that he would overrule McConnell v. FEC.
Moreover, the new justices did not always vote on the same side as Justices Scalia and Thomas – including on important issues of federal constitutional law.
Some critics complain that conservative justices predictably vote for certain kinds of parties. But business lawyers see the facts differently (as do prosecutors). Corporations challenge large punitive damage awards under the Due Process Clause. Businesses object to state regulations under the dormant Commerce Clause or as a matter of federal preemption. But when they do so, their attorneys don’t primarily cite Justices Scalia and Thomas – because in fact, those justices regularly vote against big business in such cases.
This Term, the two new justices parted company with Justices Scalia and Thomas to establish robust due process protections against punitive damage awards. And in last Term's Jones v. Flowers, the Chief Justice wrote the 5-3 majority opinion joined by Justices Stevens, Souter, Ginsburg, and Breyer, adopting a more robust vision of due process than that of Justices Kennedy, Scalia, and Thomas (Justice Alito did not participate).
The differences are not limited to due process. Justice Alito voted against the Chief and Justices Scalia and Thomas, and in favor of challenges to state regulations based on the dormant Commerce Clause (United Haulers) and federal preemption (Watters).
These are just early data points, of course. We'll learn more in future terms – which I think is precisely Tom’s point.
Jim makes a good point that I should have noted myself in my earlier post:
In Wisconsin Right to Life, Justice Kennedy intimated that he was willing to overrule McConnell v. FEC, and it was Chief Justice Roberts who prevented it. This suggests that the flawed approach to precedent that I criticized in my earlier post is not just the result of the Chief Justice's need to corral Kennedy's vote in close cases, but also has roots in Roberts' own jurisprudential views.
While we're on the topic of Justice Kennedy, no summary of this Term could be complete without observing that our only remaining Justice from the West Coast enjoyed a perfect 23 for 23 record in cases decided by a 5-4 vote (apologies to Justice Breyer, who was also born in California but has spent most of his professional life in the East). Even Justice O'Connor never enjoyed such a perfect record during her 24 years on the Court. (Some media accounts note that there were 24 such cases, based on the theory that Watters v. Wachovia Bank, the banking/federal preemption case, would have also been decided on a 5-4 vote had Justice Thomas not been recused.) In addition, out of 67 signed opinions this Term, Justice Kennedy was on the prevailing side in all but 2.
Of the 23 cases decided by a 5-4 vote, 19 of them fell along the same 4-4 split -- with Justices Stevens, Souter, Ginsburg, and Breyer on one side, and the Chief Justice and the remaining three justices on the other side. Of those 19, Justice Kennedy joined the former group in only 6 -- four Texas death penalty cases, Massachusetts v. EPA, and Marrama, a bankruptcy case.
It is also worth noting, however, that the school integration cases might plausibly be recharacterized as 4-1-4 (much as Morse v. Frederick, counted for purposes here as a 5-4 case, is actually 5-1-3). There is also the intriguing grant of a cert petition on rehearing -- an act requiring five votes, not four -- in two Guantanamo Bay cases at the very end of the Term. Although the record is not public, the wide speculation is that Justices Stevens and Kennedy voted in favor of rehearing in those cases, joining Justices Souter, Ginsburg, and Breyer, who previously announced their votes in support of the petition in a published dissent from the denial of cert in April.
I think Ilya is misinterpreting Wisconsin Right to Life by assuming Chief Justice Roberts will not ever overrule McConnell v. FEC. I think he will do that in two or three steps but that he is wisely hesitant about a major overruling during the very first full term that he and Justice Alito have been members of the Court. One of the dangers of issuing Supreme Court decisions is that there is often a big backlash effect as there was with Roe v. Wade and more recently with the Kelo Takings Clause opinion. In early June, the legal left was poised to complain about the Supreme Court having moved radically to the right and having overturned lots of precedents. Roberts neatly foiled their plan by winning all the key cases but not using the word overruled in the process. Lower federal courts will not have trouble sensing the new direction on the Supreme Court except for those lower court judges on say the Ninth Circuit who would resist even the clearest Supreme Court opinions. Having a Chief Justice who is cognizant of the danger of his opinions producing a backlash is not a bad thing. The Court's job is to decide the cases before it correctly; not to write a treatise in the respective area of law. Over time, I think the Roberts and Alito opinions will lead either to overrulings or to precedents like McConnell v. FEC becoming irrelevant. This is what has always happened on the Supreme Court. Brown v. Board of Education disapproved language in Plessy v. Ferguson but did not overrule it. Jones and Laughlin Steel in 1937 did not directly overrule Hammer v. Daggenhart. That did not happen until Darby was decided four years later. Even Lochner v. New York was not finally rejected until Ferguson v. Skrupa in 1964.
Jim's point about Kennedy's pivotal role is certainly correct, but it seems certain that Roberts and Alito have proven themselves more effective at winning Kennedy's crucial fifth vote than Scalia and Thomas are. Roberts and Alito thus deserve credit along with Kennedy for this past term having been so successful. Obviously, Scalia and Thomas remain the most effective articulators of the Court's judicial philosophy and that is a role as important as the role of winning over Justice Kennedy. But, it is awfully nice to win the cases in question, as well as having opinions out there that clearly state the law.
I'm not convinced that the Chief Justice gained anything by not overruling McConnell v. FEC, and instead severely truncating it in a way that makes little logical sense. Regarding the legal left, I'm skeptical that they would have complained significantly more had the part of McConnell upholding the 60 day prior to election restriction on advertising by corporate and union entities simply been overruled. They were quite angry anyway. Regarding the general public's reaction, it is clear from massive empirical evidence that they pay little attention to the details of court decisions and are unlikely to distinguish between an overruling and a severe limitation.
Finally, Steve may well be right the Court will actually overrule McConnell in the future. I certainly hope so. But an opportunity to do so may not arise for some time, and in the meantime the personnel of the Court might change and the narrow 5-4 majority for overruling be lost. Moreover, in the interim, Chief Justice Roberts' approach will leave lower courts, litigants, and political activists with unclear guidance as to what the law is. That is undesirable in any area of law, but is particularly harmful in First Amendment law, where lack of clarity can lead to chilling effects on political speech.
First, a general point about this discussion: it seems to feed upon an erroneous perception - unfortunately widespread among the press and public - that the Chief Justice and Justice Alito (and, for that matter, Justices Scalia and Thomas) are dragging the court "to the right" and that the Court is becoming "conservative."
As we sit here, at the end of October Term 2006, this Court is still a "liberal" Court: a majority of Justices still stand behind some of the most egregious cases of liberal judicial activism of the 20th and 21st centuries. But the antidote is not a "conservative" court, in the sense of a Court that will simply reach conservative political outcomes and make up reasons to justify it, as the current liberal Justices and their Warren Court forbears have done. The antidote to liberal judicial activism, of which we got a small dose this past term, is for the Justices to return to judging, and stop policymaking.
To the extent that the Roberts Court has shifted, it has not been to the "right" but rather to greater adherence to the role of the judiciary. The Court is supposed to decide cases outside of political considerations - to be the neutral umpire that the Chief Justice described during his confirmation hearings. To the extent that political conservatives are pleased with the term just concluded, it is because the Court began to withdraw from the gross liberal activism in which is has so long been engaged. That's "conservative" only in the sense that it is not liberal activism. Political conservatives in general seem quite content to fight political battles on the political field, where they belong. It is the liberals who want to fight them in court.
Accordingly, asking whether this term was "an unmitigated success for the right" is part of a self-fulfilling cycle: we treat the court like a political body, and it acts like a political body. It acts like a political body, so a whole generation has come to know it as a political body, and to wrongly view the outcome of all cases through a political lens.
The term has re-enforced the danger of the Ginsburg-Breyer-Stevens-Souter view of the world having five votes, as Steve says. That there is even a question - and impassioned dissent - over whether Americans can decide through their elected representatives to ban partial-birth abortion, a procedure akin to infanticide, shows just how warped the public view of the Constitution has become. Justice Kennedy is still, on many fundamental issues, enamored of policies over text and history and principle. The originalist side of the Court benefits when he finds policy arguments compelling to his world view.
The Chief Justice and Justice Alito, we can now say with confidence, are Justices in the mold of Justices Scalia and Thomas, as President Bush promised. This does not mean that they will vote with those Justices, or each other, all the time. It simply means that they share an approach to the Constitution, and to judging, that at least agrees about what they are trying to do: be faithful to the text, history, and principles of the Constitution, statutes, and common law - not to some evolving global morality, misguided social theory, or medical science. Once a group of Justices agrees on that much, the differences become very interesting, and the debate is worth having, e.g.: What is the significance of legislative history, stare decisis, and so forth? Is it wiser to overturn flawed precedents outright, and sooner, or to take a more gradual, incremental approach?
On the latter question, Justice Scalia's footnote, in his Wisconsin Right to Life concurrence, accusing the Chief Justice of "faux judicial restraint" in the opinion for the Court is a perfect example of how the debates among those committed to originalism and judicial restraint are really the intellectually significant one these days. Personally, I agree with Ilya and Steve that constitutional error is better corrected fully, and sooner, rather than partially, and later. The risk of entrenching the error, misleading lower courts, and perhaps most important of all, teaching error to the public about our Constitution, seems to me greater than upsetting purported reliance interests or any of the usual reasons invoked in support of what Justice Scalia properly emphasized is merely a "principle of policy," stare decisis. The Constitution is too important, and frankly, too battered on many fronts to take half-measures.
On the other hand, that is easy for us - practitioners, pundits, and professors - to say. I think there are respectable reasons that the Chief Justice and others might have for the "go slow" approach to error correction that do not merit the epithet "faux judicial restraint." For example: seeking to maintain public respect for, and the dignity of, the institution of the Court and the rule of law. If average Americans see the Constitution as a political football, that in itself can do significant harm, as I alluded to in my opening remarks about this whole discussion. If there is a way to overturn precedent and correct constitutional error more gracefully, perhaps the Chief sees that as important. I always suspected that such institutional concerns motivated the late Chief Justice Rehnquist, when my fellow law clerks joked that he was distinguishing precedents instead of overruling them "because it's Wednesday."
Another reason might be that - in the spirit of true, not faux, judicial restraint, the Chief and Justice Alito are trying to decide every case as narrowly as possible: they do not believe, analytically, that it is necessary to resolve the controversy at hand by going further so as to implicate the entire holding of McConnell, for example. I think, if I were a Justice, I would side with Justice Scalia and Justice Thomas in this one, but I hope I wouldn't accuse my colleagues of "faux judicial restraint."
Mind you - I think the better course is to fix constitutional errors as soon and as fully as possible. But several decades of jurisprudential garbage have made an awful mess to clean up. It's understandable that Justices of good faith, committed to real judicial restraint, might see wisdom in different ways of doing it.
I found some of Justice Alito's concurrences to be helpful, however, when he was functioning as the Court diplomat, building little bridges of coherency, for example, between the Scalia "faux judicial restraint" dissent and the Chief Justice's opinion for the Court in WRTL, saying that if the Roberts as-applied standard turns out to chill political speech in the future, presumably the Court will reconsider McConnell and find that the campaign finance provision at issue is facially unconstitutional. And in the Tellabs security case - a long overdue and vital clarification of the pleading standard in private securities fraud cases - Justice Scalia's confrontational approach may have actually resulted in a slightly weaker majority opinion from Justice Ginsburg, who had to draft her opinion to refute his concurrence. Justice Alito's crisp and compelling dissection of the scienter pleading standard is the way opinions should be written: to advance understanding, to make analysis digestible, to crystallize the issues. And he was able to do it without attacking his fellow Justices.
The real issue is, we need five - not just one - more originalist Justices on the Court. And the future of the Constitution and the Court depends entirely on the 2008 election. We need a President who can pick more stars like Roberts and Alito. I think the Senate will confirm them.
Wendy is, of course, completely right that the issue with the Supreme Court is not moving it to the left or the right but getting it to behave as a court of law and not a political body. The reason one can accurately say that the appointments of Roberts and Alito moved the court to the right is because there are now four justices who believe in following the law and of the five policy making justices Kennedy is "slightly" more conservative than O'Connor is while the other four are out to lunch. The bottom line though is that this is a transition Court that will have six members who are over the age of 70 on January 20, 2009. The next President could get five Supreme Court appointments in four years, so the whole future of the Court is totally up for grabs.
On the issue of faux judicial restraint, I wonder if what Roberts and Alito are saying with respect to the Court's many deplorable precedents is: "First, go and sin no more." The first step in undoing past mistakes is to stop repeating them. The fact that Roberts and Alito were so successful this past term in getting the Court to stop repeating its past mistakes shows the brilliance of President Bush and Attorney General Gonzales in appointing them. Conservatives have been very free with criticism for Bush and Gonzales, and we should be just as ready to praise them for the superb Roberts and Alito appointments.