Repeal and Replace? Bring It On!

But no more idle talk - let's hear the actual policies and see the actual proposed legislation. We know from their past demagoguery that the Republicans can resolve the issues addressed in the Affordable Care Act with legislation that is short and breezy, and they've supposedly been working on the issue for years. Remember - to their credit, they were the originators of the core elements of the ACA.

I recognize that some Republicans develop a terrible case of writer's block when it comes to reducing even simple ideas to the form of a bill. But I would urge them to try to get over whatever is holding them back, and to show us their actual plan.

The ACA, as constructed, is deeply flawed - few, if any, dispute that. So there's lots of room for evolutionary or even revolutionary¹ improvement. Let's see what you've got.

No more fantasies about "Maybe after President Romney appoints some new justices we'll be able to take this back to the Supreme Court", though. Let's try to respect both the outcomes of elections and the legislative process. You have to have at least one idea you can put on the table, no?
---------------
1. No, carrying pictures of President Obama depicted as, say, Chairman Mao isn't the sort of revolution of which I speak, although I'll give your supporters credit for proving the Beatles incorrect.

Public Approval of Supreme Court Decisions

Ilya Somin is watching the polls, and wants us know that a new opinion poll shows the Court's opinion to be unpopular. He argues that although public opinion appears to be shifting in favor of the law,

The difference may well be the result of the fact that a substantial minority of the public will tend to assume that any decision the Court makes is likely to be right unless they have very strong personal feelings on the subject.

Nonetheless, this result undermines the notion that the ruling will be a boost to the Court’s legitimacy or that its public image would have suffered had it ruled the other way. It’s unlikely that the Court’s legitimacy improved much in the eyes of anyone but committed liberals and legal academics.

But as Somin admits, pubic opinion of itself "says very little about whether [a] ruling is right or wrong" and some Supreme Court opinions that, in retrospect, seem backward, even atrocious, were popular at the time they were issued. Let's recall also that some opinions that were broadly unpopular, or unpopular in the regions of the country most affected by the outcome, now enjoy broad public support and acceptance. Somin notes that First Amendment opinions on flag burning, although legally correct, are unpopular.

In other words, a snapshot of public opinion means next to nothing.

I personally believe that Roberts crafted this opinion to try to quiet a lot of sound and fury in a manner that, quite possibly, will end up signifying nothing. I am skeptical that any of the significant holdings of the court will pose a problem to future sessions of Congress. You can't modify a federal grant without allowing states to maintain the status quo because that would be too coercive? Okay - we'll explicitly end the old program and create a new one. You can't impose a mandate under the Commerce Clause? We'll rephrase, or make it a tax. The case as it stands will most likely signify a turning point toward or away from the dissenters' perspective on the limits of the Constitution, but Roberts otherwise seemed to be composing an outcome he expects history to largely forget. Legal scholars will take note if future cases build off of this decision, but beyond that there's not much to remember. Reversing the ACA? That would have been an opinion for the history books.

Somin argues,

I do not believe that the Court should decide cases based on the perceived effects on its “legitimacy.” But for those who disagree, the individual mandate decision was not the great triumph that some imagine it to be.

In a big picture sense, of course the Court shouldn't focus on its "legitimacy". It should focus on the law and Constitution. Nonetheless, it will inevitably be presented with difficult questions for which there is a genuine difference of opinion about constitutionality, and it's appropriate for the Supreme Court in those contexts to consider its role in our system of government - as one of three co-equal branches of government - and to act as a court, not a legislature.

That's something conservatives have argued for years - that "judicial activism" harms the court as an institution. While reiterating that "judicial activism" is often a subjective concept and, depending on how you define it, does not have to involve acting outside of the scope of the Constitution and can actually benefit society - Brown v. Board is widely regarded as an activist decision - there's a lot of merit to the argument that political victory should come at the ballot box and not the courthouse.

That argument seems considerably stronger when a court is asked to review legislative action, as opposed to inaction, and again stronger when the legislation at issue was a significant issue in that party's election campaign. When the best the Supreme Court can say on a difficult constitutional question is, "It's a coin toss," there's a certain, potentially corrosive arrogance to nonetheless rejecting the opinion of both the Executive and Legislature that a particular legislative act is constitutional.

I believe that Roberts is aware that this is his court and his legacy, and that his status as Chief Justice of "The Roberts Court" influences how he approaches cases. But to the extent that thoughts of a legacy influence a judge, its better that the effect be to inspire modesty than arrogance.

What Is Judicial Activism, Anyway?

Yesterday I argued that an assessment of an appellate court's activism is significantly more complex than setting an arbitrary standard, even if it's one that's relatively easy to measure, determining the total number of times the court's decisions implicate that standard, and presenting the sum as a score of its activism. Specifically, I rejected as a measure of activism a simple sum of the number of times that the U.S. Supreme Court overturns precedents and invalidates federal laws.

In his resort to that standard, I'm not certain that Jonathan Adler was endorsing it, so much as making an argument of convenience in defense of the Roberts Court. I understand the temptation to try to create an objective measure of a court's activism. But as I suggested yesterday, a court can be extremely activist while avoiding issuing decisions that are counted as activist, or through a small number of decisions that have a profound impact on society.

Today, Adler's co-blogger, David Bernstein, inadverently supports my argument:

Has there been a single pundit from the liberal left who has proactively denounced the Supreme Court for undue “activism” if it invalidates the individual mandate who has also denounced the Supreme Court for activism for invalidating most of Arizona’s immigration-enforcement statute? I understand there are all sorts of distinctions one can draw between the two cases (and I heard Jeff Rosen cleverly drawing them on the Diane Rehm Show yesterday), but a presence or lack of “activism” isn’t one of them.

If we apply the definition previously shared by Adler, the invalidation of most of Arizona's immigration law cannot be regarded as activist as it neither reverses precedent nor invalidates a federal law. Conversely, applying that same definition, upholding the entire Arizona immigration law would have upset long-standing precedents on federal preemption and would thus have been an activist decision - the opposite of what Bernstein implies. It's possible that Bernstein would argue that the decision was activist no matter which side prevailed, but that would go beyond highlighting the difficulty in defining activism - it would deprive the concept of any meaning.

Bernstein basically admits that he is comparing apples to oranges. Certainly, just as apples and oranges are both fruit, two very different decisions¹ can both be activist. But in order to support that contention the proponent of the comparison should provide structure to his argument in the form of a definition of judicial activism. What distinctions between cases does Bernstein believe would help us differentiate activist from non-activist opinions? If no distinction is relevant, then isn't every opinion activist?

Bernstein continues with an argument that reinforces a point I made yesterday - that it's possible for a Court to issue a profoundly activist decision that reinterprets, narrows, or finds an exception to prior case law such that it is not technically reversing a precedent when issuing its decision:

The closest I’ve heard to a plausible distinction is that the Arizona cases weren’t “activist” because they followed precedent, but invalidating the individual mandate would be because that would involve rejecting precedent. But I’m quite confident that if the Court does invalidate the individual mandate, the majority will express agreement with the consensus of lower courts that the mandate is itself unprecedented, which naturally means that there is no prior case directly on point.

That is, after all, what the proponents of the "action" vs. "inaction" distinction have been aiming for since they invented the distinction less than two years ago, after the legislation had passed. By Adler's definition the reversal would remain activist, as it would undermine federal legislation, but Bernstein's observation highlights how reversal of precedent is meaningless as a test - how a court can be exceptionally activist yet technically uphold precedent?

The closest thing that Bernstein offers to a definition of activism is,

Either one believes in a “restrained” judiciary, or one does not.

That is, he offers a truism that does nothing to help clarify what judicial conduct is or is not activist.² Further, if the measure of activism is whether or not the court shows "restraint", wouldn't any party who calls upon the Supreme Court reverse part or all of a precedent, or overturn part or all of a federal statute, be demanding judicial activism? If so, once again the concept loses any significance.

Bernstein proceeds by proclaiming that people on the "liberal-left" don't care about judicial restraint, something belied by decades of liberal hand wringing over the manner in which the Supreme Court has chipped away at Roe v. Wade.

It’s really not much of a surprise that the vast majority of those on the liberal-left who support the constitutionality of the mandate don’t believe in a restrained judiciary. They rather simply don’t think that federalism concerns are constitutionally significant (or, if they are, that the importance of health care reform far outweighs their significance).

The latter part of Bernstein's missive about liberals is more interesting. Bernstein clarifies that it's not that the "liberal-left" doesn't care about judicial restraint, but that the "liberal-left" is not concerned about the brand of libertarianism that the Court endorsed in Bernstein's favorite case, Lochner vs. New York, but which was repudiated by the Supreme Court in the New Deal era in favor of an expansive interpretation of the Commerce Clause.

Leaving aside for the moment the fact that the Arizona immigration case deals with federal preemption, the Supremacy clause as opposed to the Commerce Clause, it is fair to say that the "liberal-left", and likely pretty much everybody who is not on the libertarian right, shows a lack of concern for federalism that Bernstein might find troubling. But if Bernstein means to suggest a measure of "judicial activism" by which "judicial restraint" can be measured by "federalism concerns", and not by how the court approaches legislation, precedent, or the text of the constitution, he's effectively defining as "activist" any decision that is not consistent with a specific aspect of his personal political beliefs. But if we allow an individual's personal political belief to be the measure of judicial activism, once again the concept loses any significance.

On other hand, they think that protecting the rights of illegal immigrants from overzealous states (or ensuring the right to abortion, or the right of gays to marry, or the protection of “War on Terror” prisoners) is exactly the sorts of things that the Court should be “activist” about.

Wow, those crazies on the liberal-left, worrying about such trivialities as "overzealous" state action that threatens the rights of the weak and powerless, government adherence to the Fifth and Sixth Amendments, and keeping the government's prying eyes out of the bedrooms and family planning decisions of consenting adults. Why, oh why, can't they focus upon more important things, like getting the Supreme Court to disregard the Supremacy Clause and reverse the New Deal?

It seems a bit odd that a champion of Lochner is concerned about the extent to which others support judicial activism. It is not unreasonable to argue that the Constitution does not expressly include a right to privacy, such that it's activist to call upon the Supreme Court to define and expand a constitutionally protected right to privacy, but by the same token there is nothing in the language of the constitution that supports or privileges the views of the Lochner court. Lochner turned on the right and liberty of the individual to contract,

The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.

but you won't actually find that right enumerated in the Constitution, nor will you find textual support for the Lochner court's position that a state has no right to regulate the length of the workweek.³ Neither the language of the 14th Amendment in general nor of its Due Process clause support the type of substantive analysis applied in Lochner - and in other contexts the conservative model is to dismiss the notion that "substantive due process" is a proper matter for judicial review. Perhaps that - the embrace of substantive due process as a proper matter for federal judicial review - is a point where Professor Bernstein and the "liberal-left" can join hands and push for... I'm not sure if Bernstein would have us call it activism, but it certainly wouldn't be restraint. Perhaps it's simply what, at some level, we all know: Sometimes judicial activism is a good thing, even if we loudly and vehemently disagree over a particular activist decision. As an illustration, I'll again point to the once controversial and now broadly accepted holding of Brown v. Board of Education. On the other hand, some activist cases such as the atrocious Slaughterhouse Cases will never look good.

Turning back to the issue at hand, although it's easy for the Supreme Court to reinterpret or narrow precedents to render them all-but-meaningless without technically reversing them, they do not enjoy the same luxury in relation to statutes. Perhaps that's where Bernstein's notion of restraint can be applied as a measure of activism. Almost two centuries ago, in writing the decision in McCullough v. Maryland, Justice Marshall observed,

Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the decree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. This Court disclaims all pretensions to such a power.

Given the admission of most advocates of the "action/inaction" distinction that, in the words of Professor Bernstein,

Congress can certainly pass a new law that does everything the ACA does, but this time do it as a "tax".

How would the reversal of the individual mandate on the grounds of semantics - of Congress passing a law that "is not prohibited" and "is really calculated to effect any of the objects intrusted to the Government" - not constitute an extraordinary repudiation of the judicial restraint and modesty Justice Marshall described? It's one thing to examine a law in light of the powers granted by the Constitution and hold that the legislature overstepped its bounds, as the Supreme Court did with Arizona's immigration law. It's quite another to reverse a law that the Court accepts as falling within the enumerated powers of the legislature on the premise that, although substantively proper and passed for the advancement of legitimate and compelling government interests, there are problems with its form.
----------------
1. As previously noted, Bernstein admits, "there are all sorts of distinctions one can draw between the two cases".

2. The judiciary should be restrained by what? Deference to precedent? Deference to legisatures, state and federal? Deference to the Constitution - and, if so, pursuant to what model of interpretation? How extreme should the deference be? If deferance to a state legislature requires modifying or reversing precedent, should the court defer to the legislature or to precedent? If a court offers a disingenuous declaration that its decision is unprecedented, is it no longer required to show restraint to a legislature or to precedent?

3. My understanding is that Professor Bernstein tries to have it both ways - arguing that Lochner represents good law and policy, but declining to opine on whether the Supreme Court was correct in rejecting a maximum workweek. That seems tantamount to arguing that the Supreme Court was correct to identify a right to privacy in Roe v. Wade, but that the rest of the decision is irrelevant to your endorsement of constitutionally protected privacy rights - it appears to be an attempt to embrace the concept while ducking the controversy. In supporting a legal principle it's not unreasonable to argue that slippery slope arguments - what the Court might do if it takes the principle to its extreme - are overstated, but its something else entirely to ignore what the court has already done. And if the argument is, "I ignore both the reasoning and outcome of Lochner while endorsing the principle of its holding," your attempt to "rehabilitate" the case becomes one of politics, not of law.

Judicial Activism Can't Be Tallied Like a Baseball Score

Jonathan Adler has suggested that judicial activism can be measured simply by examining how often the court overturns precedents and invalidates federal laws. To put it mildly, that's not an adequate measure.

Were Roe v. Wade and Miranda v. Arizona activist decisions? How about Griswold v. Connecticut? Gideon v. Wainwright? Bowers v. Hardwick? Bush v. Gore? Cases that establish or curtail rights, impose prophylactic rules, or expand or narrow constitutional principles based on the interpretation of state or local laws or policies can have an impact that is more profound than the reversal of a federal law or Supreme Court precedent.

While a court that shows little restraint when it comes to reversing its own precedents can be deemed activist, there is a significant difference between a court that chooses to clarify and reconcile its past decisions and one that targets long-standing precedents for ideological reasons. Further, it's possible for the Court to interpret or narrow a past case so as to severely restrict or even eliminate its legal significance, without technically reversing the case. Similarly a Court can choose to reach radically different outcomes in two different cases by asserting a factual distinction.

The reversal of a long-standing precedent, broadly accepted and followed as the law of the land, can also be deemed more "activist" than the reversal of an obscure or recent decision upon which few rely. Brown v. Board of Education reversed Plessy v. Ferguson, ending the notion that "separate but equal" was a constitutionally acceptable treatment of racial groups. You can argue that both fireworks and nuclear bombs are explosives, but the cumulative effect of five firecrackers isn't going to approach the impact of a single nuclear blast.

Further, a court may be activist in the manner in which it approaches lower court decisions. Although more of an issue with state courts, if a supreme court develops a pattern of identifying appellate decisions it does not like, then "depublishing them" to eliminate their presidential value or summarily vacating them without hearing, it's hard not to view the court as activist. But that type of action won't show up in Adler's proposed tally.

What if a case comes before a Court, and the Chief Justice finds that the issues as briefed and argued aren't what he had hoped - so rather than deciding the case he schedules an argument in the next term of court and orders the parties to submit new briefs, raising the issue he hoped to address. Even if the case reaches only one statute or precedent, the manner in which the Court engineers the outcome is reasonably deemed more activist than a reversal without that type of machination. What if the Court chooses to ignore its own rules, and to include in its decision a holding on an issue that was neither argued nor briefed? Is that not more activist than issuing the same decision at a later date, when the issue is properly before the court?

Part of the problem with the concept of "judicial activism" is that the term has no consensus meaning and as used often translates into little more than, "The court issued an opinion with which I disagree". But I think the strongest indicia of activism are obscured by a tally of reversals, and that activism is often better indicated by the manner and extent to which a court manipulates the process in order to create the opportunity to decide certain issues, and the extent to which the court respects the ripple effect its decision may have on society.

Let's also not lose sight of the fact that an established precedent like Plessy v. Ferguson can entrench a status quo that is unacceptable. Yes, it's reasonable to be worried that an activist court might reverse precedents that establish or protect rights you hold dear, but Brown stands as an example of where the greater harm would result from allowing the precedent to stand, and how over time a once controversial decision can be accepted as the way things should be.

Be Careful What You Wish For....

The New York Times offers a variety of arguments on the constitutionality of the healthcare reform bill, doing a reasonable job of representing both sides. The New York Times offered space to the lawyers who are suing to invalidate the individual mandate. Their argument, to me, is interesting as it seems to have at its heart a yearning for the repeal of the New Deal, or more accurately the sweeping expansion of the Commerce Clause in a series of Supreme Court cases that enabled the New Deal. The authors contend,

In a 1942 case involving wheat producers and Gonzales v. Raich , a 2005 case concerning medical marijuana, the Supreme Court upheld federal regulation of purely local economic activities as a necessary part of regulating the indisputably national market in those commodities.

The health care insurance mandate is in no way necessary to Congress’ efforts to regulate the insurance markets. It does not govern how, when and under what conditions insurance may be locally bought or sold as a means of regulating those activities on an interstate basis — as was the case in the wheat and medical marijuana cases.

The insurance mandate applies without regard to any economic or commercial activity, local or national. If Congress can legislate this broadly, then there is in fact no limit to federal power because every aspect of human life can be said — in the aggregate — to substantially affect interstate commerce.

That sounds like a discussion from a Constitutional Law class, in which first year law students debate the wisdom of that 1942 case, Wickard v Filburn. I don't think the sidestep works - the argument that an insurance mandate is not necessary to the effective regulation of insurance markets - as it is beyond obvious that in the absence of a mandate it is not economically feasible for insurers to follow regulations requiring them to end medical underwriting and insure any applicant regardless of their preexisting medical condition. It remains my opinion that the health insurance mandate is a clumsy tool, but if it is deemed unconstitutional what would actually be accomplished by opponents of healthcare reform? We would simply end up with a slightly modified system of taxes and credits to achieve the same end.

Law Professor Randy Barnett rails against the individual mandate,

Imagine if Congress ordered the majority of American households without a firearm to buy a handgun from a private company, and punished their failure to do so with an escalating monetary fine, which it labeled a “tax.” Would the supporters of the health insurance mandate feel the same about the constitutionality of such a measure?

Imagine if Congress passed a bill that allowed you to go into a gun store and, if you claimed to be in need of a gun, required the store to either immediately verify that you did not need a gun or provide you one on credit (or as a present) with no credit check - and that they could be sued for "big bucks" over a "wrongful denial". That would be a lot like how people get emergency care under EMTALA - show up at an emergency room and get treatment until you're medically stable, without regard to your ability to pay.

High numbers of uninsured and underinsured people do affect the quality, availability and cost of medical care available to the rest of the population. Some hospitals don't offer emergency departments to avoid EMTALA, and some in impoverished areas have had to close. As a law professor, Barnett is no doubt aware of the usefulness of rhetorical questions, hypotheticals and reductio ad absurdum to illustrate a point but, in class or out, a bad analogy is a bad analogy. Similarly,

Congress has never before mandated that a citizen enter into an economic transaction with a private company, so there can be no judicial precedent for such a law.

So... the cure is to tweak the nature of the mandate and associated tax? Or is Barnett telling us that all we need to make the healthcare bill constitutional is the implementation of a pubic option? Easy cures... how, in Barnett's view, do they compare to the "disease"?

Barnett also takes an activist view of the Supreme Court:

Now that it has, supporters are betting there won’t be five votes on the court to thwart a popular act of Congress. Another safe bet.

But what if the bill turns out to be supremely unpopular? What if one or both houses of Congress flip parties because of it? What if majorities in Congress favor repeal but are blocked by a Senate filibuster or a presidential veto? Still as confident about five votes?

Last I checked, there wasn't language in the Constitution that authorized the Court to determine whether or not a law was constitutional based upon the latest public opinion poll. I'm not certain what point Barnett intended to make, but his argument reads like continued advocacy for the form of judicial activism "that dare not speak its name" - a continuation of the Reagan/Bush/Bush II brand of conservative judicial activism that seeks to accomplish through the courts that which can't be achieved through the ballot box.

The quibbles that the political right is raising about healthcare reform likely could have been avoided had a mere handful of Republican senators worked to effect healthcare reform, rather than choosing obstructionism. I'm not optimistic that such a bill would have markedly better solutions to the individual mandate or tax structure behind the bill than the one that passed, but it's at least theoretically possible. Even now, a more mature approach would be to propose ways to fix the bill's defects, real and imagined. In the long run that would also be more effective than pointing to those same (real and imagined) defects in an effort to undo reform, while seemingly blind to the fact that those defects can be fixed in ways you'll like even less than the status quo.

Ross Douthat's Supreme (Court) Ignorance

Sometimes you need a sounding board. I sometimes get the sense from Ross Douthat's columns that I would enjoy discussing issues with him. He seems reasonably bright, reasonably informed, and sufficiently capable to challenge my opinions so as to make our conversations interesting, without the narcissism or dogmatism that can turn political debates into a futile bore. (He has some sacred cows, sure, but so does everybody.)

But I am losing the sense that he would enjoy discussing issues with me. Because if he were the type to truly enjoy debate, or to seek challenge of his opinions rather than looking for affirmation, I doubt that his column on the Supreme Court would have come out in quite the same way. It reads like a mediocre undergraduate essay, foggy on the facts, weak on the logic, without any clear basis for the "cure" he proposes. I suspect that he's raised the same issues before, perhaps even blogged about them, but in contexts where he had a sympathetic audience and could avoid or ignore criticism.

Douthat opens with a fair criticism of the judicial nomination process. Sotomayor will establish herself as a sufficiently learned jurist but, when confronted with serious controversies, will hide behind the excuse that she can't comment on an issue that might come before the court. Never mind that in order to establish her judicial bona fides, she will comment on any number of non-controvercial subjects that the court might be asked to revisit - it's those 5-4 and 6-3 issues that are off the table. But that won't be a standard she created - that's the standard the Senate created and perpetuates. I suggested a possible work-around - the Senate could ask a candidate to state the best arguments on both sides of a controversial issue without picking a side. What a choice for a Senator... having already decided not to filibuster, do you press hard on the issues or preen for the camera?

Douthat proceeds to suggest that the politicization of the Supreme Court is a bipartisan problem, but that it is somehow more of an issue now than at any prior time in the nation's history. Granted, it's unusual for a conservative to admit that the Republicans have done their best to build an activist judiciary, and to resolve cases through the judiciary when they can't prevail legislatively (even in contexts where they control the legislative and executive branch, as was the case for most of G.W.'s tenure, or after John Engler created his activist "conservative" court in Michigan). But new? I suggest that Douthat pick up a dusty old case reporter from 1803, and read the case that in large part created the dynamic he now deplores - Marbury v Madison. Perhaps he should also grab a reporter, just a few volumes down the shelf, and read Martin v Hunter's Lessee.

The context for the Supreme Court acting as the final arbiter of federal constitutional questions was resolved centuries ago. Does Douthat believe that, at that time, nobody noticed a political aspect to the court's direction, rulings, and expansion of its own power? Politicization and the consequences of a bad ruling are more significant now than, say, back in 1857, when the Supreme Court kinda sorta made a bad ruling that, in the view of many (although granted, a view disputed by some historians) kinda sorta contributed to the subsequent civil war? Or when the post-Civil War Supreme Court decided to limit the reach of the 14th Amendment's and roll out the red carpet for Jim Crow laws? Or when FDR threatened to stack the Supreme Court with new justices? (How did that one get past Douthat?)

Douthat's contention that complaints about the Supreme Court's power "have more merit now than ever" is based not on any substantive review of their rulings, but on statistics.

According to calculations by the Harvard law professor Jed Shugerman, the Court has gone from overturning roughly one state law every two years in the pre-Civil War era, to roughly four a year in the later 1800’s, to over 10 a year in the last half-century. So too with federal law: Prior to 1954, the Court had struck down just 77 federal statutes in a century-and-a-half of jurisprudence; in the 50-odd years since, it’s overturned more than 80.

To anybody slightly conversant with Supreme Court history, what of that would be surprising? Subsequent to the Civil War, the Supreme Court has incorporated most of the rights enumerated to in the Bill of Rights to the states, meaning that they could start reviewing state laws as violative of federal rights. It's a bit like arguing, "The Supreme Court made no decisions under the Thirteenth, Fourteenth or Fifteenth Amendments before the Civil War, then suddenly for no reason I can see they started overturning laws as violating those Amendments."

There's another factor, one Douthat should know about. There's a whole body of Supreme Court precedent that might be described as the "what about now" decisions. States, confronted with a ruling that a particular statute is unconstitutional, often take a "try and try again" approach. It's unconstitutional to ban abortions? Well then, how about we impose a seven day waiting period... no? How about 48 hours? How about we require spousal notification... no? Then how about parental notification? How about we give state funds directly to K-12 parochial schools... no? Then how about we give them free textbooks, and create a voucher program where parents decide where to use the voucher? There are many other examples. Once you decide that a line can be drawn, you're going to get a lot of subsequent argument over where to draw that line, and the decisions start to look more like the making of policy than the neutral application of law. (Rival paper or no, Douthat might benefit from reading George Will.)

In terms of federal legislation, let's see... What happened in 1954? I'm sure it was nothing significant. Seriously, it's like there's a huge blind spot in Douthat's understanding of history - we have a civil war, get a new set of constitutional amendments resulting in Supreme Court scrutiny of state laws, and suddenly more state laws are reviewed. We have a seminal case that overturns "separate but equal" and paves the path for integration and the civil rights era, and suddenly the Supreme Court is doing crazy things like overturning state anti-miscegenation laws.

You also have the evolution of the court, post-FDR, with justices being asked to review commerce clause cases that aren't particularly sexy or interesting to laypersons (probably not to most lawyers) but play a part in the increased scrutiny of state and federal legislation. We found ourselves moving into an era where the federal government was increasingly regulating state activities, often by attaching strings to grants of federal money, with judicial review of whether those strings were constitutional, whether state efforts to circumvent the strings were permissible, whether the strings constituted "unfunded mandates".... etc. We have also seen an explosion in the quantity of federal law, including the creation of a huge body of federal criminal law, and a federal "war on drugs" (now accompanied by a "war on terror") that is often held up as justification for rolling back protections extended under the Bill of Rights. We had the development of a highly mobile society, the rise of information technologies, and the extension of federal laws and regulations into areas prior generations couldn't have imagined.

The change wasn't the consequence of the flipping of a magic "judicial activism" switch. A lot was going on. This is a context where statistics may be interesting, but prove nothing.

The public doesn’t seem to mind this increasing assertiveness: The Supreme Court regularly shows up in polls as the most respected branch of government. But settling so many vexing controversies with 5-to-4 votes — effectively making Anthony Kennedy the nation’s philosopher king — is an awfully poor way to run a republic.

Except that when you have a 5:4 decision, every vote on the majority side is arguably the "swing vote". It's not as if Kennedy's not predictable - for the most part you know where he's going to come out on any given case. This is really no different from Scalia's years of writing lengthy dissents. Now he falls into the majority. Or during the period when we were told that both O'Connor and Kennedy were "swing votes", but we were still ending up with a lot of 5:4 decisions. Has it not occurred to Douthat that there's a reason we have an odd number of Justices? That we've known since the dawn of the Republic that they would be deciding issues by majority vote, and would sometimes vote 5:4 on difficult issues? That sometimes being a "swing vote" reflects that you're giving an issue more careful thought and consideration than a Justice who sits as an immovable anchor on one side or the other?

Let's say you have a split among the federal circuits, with most circuits having ruled on a particular interpretation of the Sherman Antitrust Act, with a narrow majority of circuits favoring a particular approach to the law. Four Justices vote to grant certiorari, the issue is well-briefed, well-argued, and is debated among the Justices. They come back with a 5:4 decision. To Douthat, this is a bad thing? That they've just unified the interpretation of a difficult issue of law, creating predictability and uniformity across the nation in relation to an issue that has previously triggered a lot of extremely expensive litigation? It's as if he thinks the Supreme Court does nothing but make personally motivated decisions on reproductive rights cases. In fact, that seems to be exactly what he thinks:

The modern Court’s most enduringly controversial power grabs — with Roe v. Wade leading the way — were usually the work of liberal justices, and even the more modest liberal theories of jurisprudence tend to depict the Justices as soldiers in the progressive cause, constrained primarily by what the political climate allows them to get away with.

I obviously hang out in the wrong circles, because when I randomly ask one of my peers, "Which case represents an enduringly controversial expansion of power that has the most profound impact on our daily lives", I'm not going to hear about Roe. I'm going to hear about the Commerce Clause, and cases like Wickard v Filburn. Douthat's so focused on a single tree, that he can't see that he's standing in a forest of Commerce Clause issues.

There's another point to be made here: Roe v Wade limits the state's ability to control the lives and actions of citizens, to intrude into the private medical and reproductive choices of competent, rational adults. As a social conservative, Douthat sees an action that frees people from state control as a "power grab". Were he a libertarian, he might still find fault in the court's reasoning, but he would argue instead that it's an area the state has no business regulating at all - the power grab would lie in the state's removing the choice from the individual. This is a context where Douthat apparently prefers the power of the state over either the rights of the individual or the power of the federal government to limit state intrusion. But that seems more opportunistic than "conservative".

Douthat returns to statistics:

But in practice, the main divide between liberal and conservative judges tends to be over the responsibilities of the federal government, not judicial activism per se. During the last decade of the Rehnquist Court, for instance, the conservative Clarence Thomas and the arch-liberal John Paul Stevens were almost equally willing to vote to strike down legislation. It’s just that Thomas was much more likely to rule federal actions unconstitutional, while Stevens was more likely to vote to overturn state laws.

Once again, Douthat ignores court history, substituting statistics and shallow political labels for substantive analysis. It's reminiscent of Cheney's trying to write Colin Powell out of the Republican Party, or Douthat's sneering at Arlen Specter as a "centrist" and arguing that "Rockefeller Republicans" aren't conservatives. Political labeling as name-calling, with no apparent grounding beyond "I'm conservative, so people who disagree with me are not." If Stevens is "ultra-liberal", what was Justice Blackmun? Justice Brennan? Justice Marshall? Chief Justice Warren?

What makes Thomas the paradigm "conservative" Justice? Back in the day when Thomas was best known for joining Scalia in dissent, how did this divide manifest itself? I suspect that Douthat cherry-picked Thomas, because he has been around long enough to have a track record and, of the longer serving conservative Justices, was the most likely to strike down federal laws. But that doesn't make the case that he's representative of either conservatives or conservative justices. Also, is Douthat offering an inference about the court, or about a particular justice of the court? If it's the former, the voting record of an outlying judge is peripheral to even the statistical argument. If it's the latter, looking at only those cases where a statute is overturned tells you only part of the story, and may not even be representative of the whole - you must also look at the justice's dissenting opinions.

There are bipartisan ways that the Court could be reined in, and the legislative branch reinvigorated. Shugerman, Caminker and others have proposed a supermajority rule, for instance, requiring a 6-to-3 vote to overturn federal legislation.

I suggest that Douthat pick up a dictionary, and look up the term "coequal." The fact that the Supreme Court can overturn legislation is not an accident of history. It's part of the design. I pause for a second to ask, does the name-dropping carry any significance to the average reader? Who hears the name "Caminker" and thinks, "Oh, yeah, Evan, from U of M"? Who's going to think, "Didn't those guys write about this issue, six or so years ago? Out of concern about the activism of the Rehnquist court?" These are the most prominent voices that Douthat can find? In fairness, one of the reasons you don't find much discussion of these ideas is that they can't get past the idea stage without a constitutional amendment. They're thought exercises but, as policy, are something that would require judiciousness by a court and a Chief Justice who favors consensus over expediency.

Caminker's concern was the reversal of federal statutes on federalist grounds. He saw the series of 5:4 decisions as inconsistent with past practices and insufficiently deferential to the presumption that federal laws are constitutional. But that begs the question of whether or not those decisions were sound. History includes some outrageous Supreme Court rulings that had clear majority support. It also overlooks the fact that the change was brought on in no small part due to Justice Rehnquist's becoming Chief Justice. Rehnquist favored expediency over consensus, and wanted to limit or overturn a number of historic cases. He was ultimately joined by other justices who scorn stare decisis and deference in relation to laws they regard as wrong, namely Scalia and Thomas. And if Douthat was paying attention to Caminker, he would have some idea that the Rehnquist court turned its sights on the progeny of the Great Society cases and the associated expansion of federal reach under the Commerce Clause. In terms of the evolution of the court, Douthat might have noted that the "conservative majority" responsible for those decisions was described as Chief Justice Rehnquist along with "Justices O’Connor, Scalia, Kennedy, and Thomas" - as previously noted, Kennedy can be quite predictable.

So what's magic about the number "six", or even the number "seven"? If Douthat believes that some special weight should be given to a Supreme Court decision that's decided by a clear majority... let's say, 9:0, why does he mark 1954, most notable for it's unanimous decision in Brown v Board, as the beginning of the end? Why does he spend so much time fretting over Roe v Wade, a 7:2 decision?

And, oh my goodness, Douthat takes this thought experiment seriously:

To get conservatives on board, the rule would have to be extended to state legislation as well. This isn’t as crazy as it sounds - versions of the supermajority idea have been batted around by left and right alike since Reconstruction, and merely proposing it might spur the Court toward greater consensus, and perhaps greater modesty as well.

It's bad enough that Douthat doens't understand the concept of coequal branches of government as applied to the Executive, Legislative and Judicial branches. Now he seems to be operating under the belief that the U.S. Supreme Court owes deference to state legislation that contravenes the U.S. Constitution. This, he believes, is conservative? And how puzzling... who would have thought that there would be people arguing to impede U.S. Supreme Court review of state laws following reconstruction, at least up to the point the Court declared itself to be cool with Jim Crow laws? What might their goal have been? Douthat says these same concerns started rearing their head again after 1954 and Brown v Board? What a remarkable coincidence.

Douthat continues,

Absent such constraints, the best reform would be term limits for the Justices, instead of lifetime tenure. Give them 12 years, rotated on a regular schedule, and then send them on their way.

I've previously noted that term limits for justices are silly and largely unworkable. But Douthat's goal here seems to be something far less than admirable: He seems to be hoping that term limits will further politicize the court:

Such limits wouldn’t reduce the Supreme Court’s power directly, but it would help us see the Court for what it has become - a deeply political institution, as fallible as any other, and answerable, when all is said and done, to us.

Same as it ever was.

It's hard to take this argument seriously, even granting Douthat's weak grasp of the court's history and its role as an institution. Douthat woud no doubt argue that, were term limits imposed, the incumbents should somehow be grandfathered in and their retirements staggered. Otherwise, I sense that Roberts and Alito would suddenly feel very lonely.

Of course, the biggest question raised by Douthat's sudden recognition of Republican judicial activism, and his concern for depoliticizing the court and impeding its ability to review state court decisions, is "Why now?" He says this has been a problem for more than fifty years, that things got a lot worse more than thirty-five years ago, and the conservative-dominated Rehnquist and Roberts courts represent more than two decades of "justices gone wild".

The answer, if you've read any appreciable amount of Douthat's work, is implied when he mentions Roe v Wade, and also by his lack of awareness of federalism and commerce clause controversies. He's concerned that there will soon be a 5:4 majority that's skeptical of state limits on abortion rights, and he hopes to make it more difficult for the Supreme Court to review or revisit state restrictions on abortion laws. And if he can't do that, he wants to shout from the rooftop that the only reason the Supreme Court could disagree with his (religion-based) opposition to abortion is that it's a political body. His goal here is to preserve the status quo through a few more Supreme Court retirements, and it's not something he would be proposing if the court were shifting toward an anti-Roe position - it's little different from a call to stack the court.

What would Douthat think of a rule that a Supreme Court precedent can't be overruled or limited unless an equal or greater number of justices vote for the change? Brown v Board would prevail over Plessy v Ferguson, as it was a 9:0 decision. You would get a great deal of stability, and any chief justice who wanted to build a legacy would have to strive for broad consensus, obviating any need to try to (unconstitutionally) legislate a supermajority standard or amend the Constitution to impose one. Except most of the restrictions on reproductive rights that followed Roe v Wade would have to be tossed, because they didn't get the support of seven or more justices. What do you say? Do we have a deal?

They'll Prove Themselves Principled?

Ed Gillespie questions what happens if the Republicans defer to the President's judicial nominees¹, despite past (and anticipated future) Democratic opposition of nominees on ideological grounds. Leaving aside the fact that this notion of Republican deference is a myth, it's interesting that my proposed answer apparently never occurred to Gillespie.
______
1. Gillespie actually refers only to the Supreme Court, apparently being of the mind that the various ideological litmus tests and hurdles the Republicans placed before Clinton's nominees for lower courts were duly deferential.

Habeas Corpus - A Victory For Judicial Conservatism

Like mythago, I can hardly wait to hear how the political right reinvents the proposed judicial activism of the dissenting justices into conservatism, and the majority's respect for the Constitution as judicial activism. It all seems to boil down into a giant, "How dare judges question the unlimited power the Constitution grants the king unitary executive!"

You know what? When you intentionally disregard the text of the Constitution, two centuries of historic practice, and two centuries of jurisprudence in order to try to create an entirely new system by which you can detain and try "enemy combatants", you shouldn't be too surprised when the courts occasionally take issue. Giving all due respect to Scalia's desire for deference to the Bush Administration's interpretation of Johnson v. Eisentrager, who but a judicial activist would argue that the Executive's interpretation of a judicial interpretation of the Constitution should take precedence over the Constitution itself, let alone that it should preclude the Court from clarifying its own prior opinion?

I take issue with the Chicken Little hysteria of Scalia's dissent. The sky isn't falling. The nation will survive. And if the best framework he can provide for his dissent is a dramatic pounding of the table, it's reasonable to infer that not even he thinks much of his legal argument.

Is Process More Important Than Outcome?

If you attend law school, you will encounter on exams what is described as a "theory question". I have a hard time describing theory questions in a manner that does not sound cynical, as I happen to have developed a very cynical take on them. Although ostensibly designed to test your understanding and application of legal theory, if you don't know this up front you will quickly learn that maximizing your grade on a theory question usually involves conforming your theories to what the professor wants to hear. If the professor believes that the President is too powerful and must be kept in check by Congress, that's what you write on the exam. Oh, the professor may claim that the test will be graded without respect to whether or not you agree with him, but it's a distinction without a difference - he won't grade you down because you disagree that Congress should be the most powerful branch of government; he'll grade you down because any other theory is wrong.

I am reminded of theory questions by Ann Althouse's editorial in the New York Times, A Law Unto Herself, an editorial that she would presumably grade as an "A" or "A+" if written by one of her students at the University of Wisconsin Law School. It should have been easy for her - after all, her primary areas of expertise are civil procedure, constitutional law and federal jurisdiction. Now, I'm not saying that had I received this editorial as an essay from a 2L or 3L I would necessarily have given the student a low or failing grade. But that doesn't mean it's good.

The first noteworthy aspect of the editorial is that Professor Althouse pretends to be judging the issue based solely on issues of procedure, and not on the basis of the outcome reached. And you need to look no further than her blog to see her insist that she was not approving or disapproving the outcome, and her very scholarly refutation of those who believe otherwise:

I can see that a lot of people are missing the point of the op-ed... But I don't want to get out my sledgehammer, and I'm bored with telling people to calm down and reread it.

Well, gee... I'm convinced. So how might people have come to the conclusion that a law professor and expert in civil procedure was taking sides, despite her insistence that she was not? Perhaps it is their experience with statements like these:

In the review of judicial proceedings the rule is settled that, if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason. Frey & Son, Inc. v. Cudahy Packing Co., 256 U.S. 208 , 41 S.Ct. 451; United States v. American Ry. Exp. Co., 265 U.S. 425 , 44 S.Ct. 560; United States v. Holt State Bank, 270 U.S. 49, 56 , 46 S.Ct. 197, 199; Langnes v. Green, 282 U.S. 531 , 51 S.Ct. 243; Stelos Co. v. Hosiery Motor-Mend Corp., 295 U.S. 237, 239 , 55 S.Ct. 746; cf. United States v. Williams, 278 U.S. 255 , 49 S.Ct. 97. [Helvering v. Gowran, 302 U.S. 238 (1937)]

Perhaps I'm being unfair, and Professor Althouse has a long and distinguished history of attacking the many state and federal cases which assert this rule; but if this is the first time she has raised the question of how courts "ignore their obligations" by focusing on outome over proper process, it invites the question - why now?

Then there is her attack on the Judge's sentence, "There are no hereditary kings in America and no powers not created by the Constitution." Professor Althouse describes that sentence as a "juicy quotation that represents "sheer sophistry."

The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.

It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?

But what the Judge actually wrote was this:

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all "inherent powers" must derive from that Constitution.

The Judge's statement may be "juicy" when taken out of context, but all the judge is actually stating is that the President's powers derive from the Constitution. It is reasonable to assume that Professor Althouse has read the opinion she criticizes, so it is fair to assume that her misrepresentation of the quote is intentional, and it is fair to further infer that her comments are based upon her taking offense at the judge's ultimate conclusion.

Futher, there is the question, what exactly is wrong with there being a "juicy" quote in a judicial opinion? Here's a "juicy quote" that is often used and abused by pundits: "There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact." Again, I have to assume that a constitutional scholar like Professor Althouse is familiar with the rhetorical flourishes judges often choose to include in their opinions. Again, in fairness, I have not followed Professor Althouse's writings and choosing this time to speak out would only suggest partisanship if Professor Althouse has no history of criticizing such "juiciness" in judicial opinions - although her own use of quotations suggests otherwise.

In terms of substantive complaints, Professor Althouse gets off to a weak start:

Judge Anna Diggs Taylor quoted Earl Warren (referring to him as “Justice Warren,” not “Chief Justice Warren,” as if she wanted to spotlight her carelessness)

Perhaps Prof. Althouse mentors the footnote editors for her school's law reviews, such that this "carelessness" shocks her, but to me she's nitpicking, and engaging in the logical fallacy of poisoning the well. I can't help but also note that she does not condemn Chief Justice Warren for producing such a "juicy" quote in the first place.

In relation to her call for careful judicial decisions which demonstrate a concern for accuracy, completeness and impartiality, I agree with Professor Althouse.

... let’s consider the irony of emphasizing the importance of holding one branch of the federal government, the executive, to the strict limits of the rule of law while sitting in another branch of the federal government, the judiciary, and blithely ignoring your own obligations.

I agree that both branches should seek to observe and respect their own obligations under the law and Constitution - and both the Judge and the President swore oaths to uphold the Constitution. But irony? Perhaps it's that we have different expectations, but from where I sit Professor Althouse is describing hypocrisy.

I disagree with Professor Althouse that a trial court decision, if poorly reasoned, sends the message that there are no good arguments in support of the outcome. I think it is fair to infer bias from her castigation, "It suggests that there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush." From her claimed perch on the fence between the two sides, it is interesting that Professor Althouse finds nothing to criticize on the President's side - she seems satisfied that his oath of office and covey of advisers would steer him away from any disingenous or self-serving stance - and has a history of pecking at faults by the judge which may exist only in her imagination.

Professor Althouse also suggests that the decision represents (or, at best, can't be distinguished from) judicial activism,

So often, we’ve heard complaints about “activist” judges. They’re suspected of deciding what outcome they want, based on their own personal or ideological preferences, and then writing a legalistic, neutral-sounding opinion to cover up what they’ve done. That carefully composed legal opinion makes it somewhat hard for a judge’s critics to convince people — especially anyone who likes the outcome — that the judge did not decide the case according to an unbiased legal method of analysis.

So perhaps the oddest thing about Judge Taylor’s opinion in the eavesdropping case is that she didn’t bother to come up with the verbiage that normally cushions us from these suspicions. Although the first half of the opinion, dealing with the state secrets doctrine and the first part of the standing doctrine, has the usual detail and structure one expects in a judicial opinion, the remainder of her text dispenses with the formalities.

Why do I suspect that Professor Althouse spends little time reading federal trial court opinions, and little to no time reading state trial court decisions? I don't want to be the one to cause the scales to fall from her eyes, but despite its many obvious faults this is actually a pretty thorough, substantive opinion for a trial court. I don't want to paint with too broad a brush - there are many excellent trial judges who regularly write opinions which meet or exceed the quality of typical appellate court decisions. (For that matter, there are plenty of appellate decisions, often unpublished, which would make Judge Taylor's opinion look good.)

In fact, the appellate courts in some ways reward trial courts for writing cursory opinions, or no opinion at all. In Michigan, a trial court is not required to write an opinion when resolving a motion for summary disposition. A trial court which writes an opinion may well be affirmed, even if incorrect it in its analysis, under the "no harm, no foul" principle described above - it won't be reversed if it reaches the right result for the wrong reason. But if the judge doesn't pen so much as a word, simply granting or denying the motion, the chances of reversal do not appear to increase, while the chances of being corrected in the course of an affirmation drop to zero.

It's also interesting that Professor Althouse implicates judicial activism, without actually accusing the judge who penned the opinion as being activist. Again I'm with the Professor in believing that judges should take care to avoid not only bias, but the appearance of bias. But if it can truly be said that a careless trial court decision "helps those who have been arguing for years about result-oriented, activist judges," unless she's arguing that this is the straw which breaks the camel's back, this one opinion changes nothing.

Perhaps the most unfortunate part of the editorial is that Professor Althouse spends so much time focusing on style, she leaves herself with no space to address the substance of the opinion.

This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge “must of necessity expound and interpret” in order to decide cases, as Chief Justice John Marshall wrote in Marbury. But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.

Maybe Professor Althouse should have left out the "juicy" quote from Chief Justice Marshall, to give herself a bit more space to describe the law of standing, why the judge's opinion should be regarded a superficial and incomplete in relation to standing, and maybe even an opinion as to how the issue of standing should have been resolved (assuming she's comfortable climbing off of the fence). Would the Professor describe it as "ironic" if an editorial that pretends to condemn superficial legal analyses that give the impression (even if false) of partiality were itself superficial and seemingly partisan?

I guess in the end, if I were a law professor, I would be inclined to downgrade Professor Althouse's essay even though if you simmer off all of the fat and vitriol, I agree with her primary arguments for respect of the judicial process, judicial professionalism, and greater care in the drafting of judicial decisions at all levels.

ABA Survey: Large Numbers of Americans Are Clueless

Well, not really. They say,

A majority of the survey respondents agreed with statements that "judicial activism" has reached the crisis stage, and that judges who ignore voters’ values should be impeached. Nearly half agreed with a congressman who said judges are "arrogant, out-of-control and unaccountable."

Does that mean that half of Americans are condemning as "activist" those judges who are slavishly following the law and Constitution instead of the values of voters?

What to make of this....

Not that I want to post more ambiguous pictures of Republicans, but... is this what Bush was warning us about, you know, if we let those "liberal judges" and their "anything goes" attitudes have their way?

Judicial Activism & Conservativism

Although the case can be presented in a much more compelling manner, today's Times editorial on "conservative" judicial activism brought to mind a recent decision of the Michigan Supreme Court. The editorial proposes,

We can disagree about outcomes, but we have, at least as a matter of political language, internalized the fiction that liberal judges "make" law, while conservative judges "interpret" it.

A modest proposal, then: Let's invent a new term right here, today, for judges or judicial nominees on the right, who claim to be merely "interpreting" the Constitution, even when they are refusing to impose settled law; law they deem unsettled because it was invented by "liberal activist judges." And while I am open to better suggestions, here's a tentative offering: "Re-activist judges."

In Michigan, for a number of years we have had a "conservative" majority on the Supreme Court, which fashions itself in large part after the philosophies of Justice Scalia - to the point where the Chief Justice has publicly recommended Scalia's "A Matter of Interpretation" for guidance as to how the Court may rule. This "conservative" court has not been at all reticent about reversing precedents, no matter how old, which they deem to be inconsistent with legislative intent. (This, of course, raises the question of why the legislature would let stand a wholly wrong-headed interpretation of a statute for a decade or more, when they could remedy the "error" within the space of a single legislative session - as they have often done.)

This can remedy what many view as bad decisions, but it can also lead to general confusion. For example, for many years it was possible to bring a highway defect claim on the basis of defective or inadequate traffic signs or signals, but the Michigan Supreme Court opted to reverse a prior Supreme Court decision which had stood for ten years, and to hold that the legislature did not intend traffic controls or signs to be part of the "highway". That is not an unreasonable interpretation of the statute, but it is legitimate to observe that the legislature itself appeared untroubled by the prior interpretation, and that a typical lay reaction to being informed that traffic lights are not part of an intersection is an incredulous, "What are they, then?"

In its advancement of legislative intent, the Michigan Supreme Court recently held that judges could no longer interpret a statute so as to avoid an absurd outcome. This principle of construction is that where applying a statute as written creates a particularly absurd or unjust outcome, a court may interpret the statute to avoid the outcome. No more, in Michigan - even if the outcome that results was obviously not anticipated or not intended by the legislature when it drafted the language.

Needless to say, this has created some tension in the court. In another recent decision, in which the Supreme Court modified another long-standing interpretation of state law, there was an associated loss of decorum. The majority opined about the dissenting justices,

It must be pointed out that the dissent's approach leads to the rather dismaying conclusion that the intent of the Legislature in 1995 was, in effect, to pull down the no-fault temple and produce an auto insurance catastrophe for the state's drivers. That is, the dissent concludes that the 1995 amendment, despite no words to this effect, was designed, as the thrust of his argument makes clear, to undermine the great compromise (no-fault benefits in return for limited tort remedies) that all previous Supreme Court decisions have recognized as existing in the no-fault legislation and that is an indispensable requirement to make no-fault viable. We decline to join him in this calculated exercise predicated on what we believe is a studied ignorance of what the Legislature intended.

(emphasis added). The author of the dissent retorted,

The majority suggests that my approach is sacrilegious to the "no-fault temple" and is an exercise predicated on "studied ignorance." Ante at 35. While admittedly unaware that I was required to worship the no-fault insurance gods, I believe that my "studied ignorance" is more properly labeled as "judicial restraint." If ignorance comes from applying this unambiguous statute as written and not substituting my own view for that of the Legislature, I must say that ignorance is bliss. If so-called wisdom comes from rewriting this unambiguous statute to comport with my own preference on how the statute should be written and applied, in this instance I must choose "ignorance."

The fact is, reasonable minds can differ as to how statutory language is best interpreted. I don't believe it is a "studied ignorance" to suggest that one reasonable interpretation, which the legislature has long permitted to stand, somehow undermines the statute at issue. Nor do I believe that another interpretation, not unreasonable, dictates that those holding the opinion are sell-outs to the insurance industry.

I do believe that there is something to be said for respecting precedent, for respecting the capability of the legislature to correct mistakes of judicial interpretation on its own initiative, and for preserving comity and collegiality among the justices of the state's highest court. In the past, would not all three of those factors be deemed "conservative" in nature?