Cafeteria Catholics and the Free Exercise of Religion

A few days ago, in a column entitled "Defining Religious Liberty Down", Ross Douthat attempted to reinterpret the Free Exercise Clause of the Constitution in a manner that, in essence, would allow anybody who shares his religious beliefs, as well as a few others whose beliefs don't offend him, to do and say whatever they believe their religion demands, with no response or push-back from even a single individual. Anybody who does not accept that, Douthat lectures, "then don’t tell religious people that you respect our freedoms."

Douthat gets off to a weak start by attempting to reinvent the Free Exercise Clause,

[T]he Bill of Rights guarantees Americans something that its authors called “the free exercise” of religion.

It’s a significant choice of words, because it suggests a recognition that religious faith cannot be reduced to a purely private or individual affair. Most religious communities conceive of themselves as peoples or families, and the requirements of most faiths extend well beyond attendance at a sabbath service — encompassing charity and activism, education and missionary efforts, and other “exercises” that any guarantee of religious freedom must protect.

That is to say, Douthat finds the words "significant because as he understands them, if he claims to have been inspired by religion, they shield his every word and action from criticism. Not just from discrimination, not just from state actors, but from the responses of private citizens who happen to hold different values.

As I previously stated, Douthat is not speaking in defense of broad religious liberty. He is speaking out for his own beliefs, and other beliefs that he finds acceptable. He does not even consider that you might oppose his words or actions on religious grounds. If you so much as whisper a protest, you're violating his religious liberty - with his faith, or perhaps its his narcissism, obscuring that he's displaying the very arrogance he ascribes to anybody who disagrees with him.

Beyond the sheer arrogance of his position, Douthat overstates his constitutional case. In upholding the state's right to prohibit sacramental use of peyote, Justice Scalia, also a Catholic, has attempted to explain the Free Exercise Clause,

The Free Exercise Clause of the First Amendment, which has been made applicable to the States by incorporation into the Fourteenth Amendment... provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U. S. Const., Amdt. 1 (emphasis added). The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the First Amendment obviously excludes all "governmental regulation of religious beliefs as such."... The government may not compel affirmation of religious belief, ... punish the expression of religious doctrines it believes to be false, ... impose special disabilities on the basis of religious views or religious status, ... or lend its power to one or the other side in controversies over religious authority or dogma....

But the "exercise of religion" often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. It would be true, we think (though no case of ours has involved the point), that a State would be "prohibiting the free exercise [of religion]" if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. It would doubtless be unconstitutional, for example, to ban the casting of "statues that are to be used for worship purposes," or to prohibit bowing down before a golden calf.

Respondents in the present case, however, seek to carry the meaning of "prohibiting the free exercise [of religion]" one large step further. They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They assert, in other words, that "prohibiting the free exercise [of religion]" includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning. It is no more necessary to regard the collection of a general tax, for example, as "prohibiting the free exercise [of religion]" by those citizens who believe support of organized government to be sinful, than it is to regard the same tax as "abridging the freedom . . . of the press" of those publishing companies that must pay the tax as a condition of staying in business. It is a permissible reading of the text, in the one case as in the other, to say that if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.

That's a long excerpt, so let's pull out two important points: first, the Free Exercise Clause prohibits the government from "lend[ing] its power to one or the other side in controversies over religious authority or dogma", and second it allows for the broad regulation of society in manners that affect individual and group religious liberty, as long as "prohibiting the exercise of religion... is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision".

One more important point, Scalia rejected the Court's precedents that would have required the state to articulate a "compelling state interest" before allowing a law to take precedence over an individual's free exercise of religion. If Douthat believes it is the secularists who were responsible for weakening that protection, he's looking in the wrong direction.

That is to say, Douthat is ignoring every conservative approach to constitutional interpretation, appears disinterested in learning the interpretation provided by even the most conservative, most religious Supreme Court Justices, and advocates a personal interpretation of the Constitution's language consistent with a 20th century understanding of its terminology - and at that, not a broad understanding, but a personal understanding. The theological equivalent would be for him to pick up a bible, read one verse, and announce that he knows exactly what it means - no need to examine history, context, the opinions of past religious leaders, the teachings of his church. In both cases, it's the sort of personalized, shallow interpretation that has long been scorned, respectively, by political and religious conservatives.

Douthat remains upset that the government is regulating birth control in the context of the secular operations of religious organizations. Yet any form of health insurance is going to cover procedures or medicines that violate somebody's religious beliefs. Douthat prefers to misrepresent the facts, purporting that the regulation treats "religious hospitals, schools and charities as purely secular operations", knowing full well that's not the truth. For example, a religious school that hired few, if any, non-practioners of its faith, and catered to a similarly non-diverse student body would not be affected by the regulation. But more than that, although Douthat does not mention private employers, the logic of his intepretation of the Free Exercise Clause would extend his objection to the mandate to purely private contexts.

What would happen if a religious organization, or a religious private individual, acquired Douthat's employer and stripped out of his insurance policy coverage for procedures and medications inconsistent with somebody else's religious beliefs? It's not apparent that Douthat has even considered that possibility. If he has, it would appear either that he does not believe that the rules he favors are likely to affect him - that is, he does not anticipate such an employer acquiring the Times - or would view the new owner's religious views as unduly extreme and thus not worthy of protection. Fortunately for Douthat, even within the context of birth control he suffers no direct impact.

Douthat also complains that a judge in Cologne, Germany - apparently operating under the wacky belief that his court is not regulated by the First Amendment to the U.S. Constitution, held that "circumcision as a violation of a newborn’s human rights". Douthat takes umbrage at the notion that a judge could impose such a rule in relation to a baby boy, but makes no mention of baby girls. Yes, there are serious differences in kind and degree between male circumcision and female "ritual genital mutilation", but those concerns are secular. Douthat complains,

Here again, defenders of the decision insisted that it didn’t trample on any Jew’s or Muslim’s freedom of belief.

Douthat, predictably, does not identify even a single person who claims that the ruling does not impinge on "any Jew’s or Muslim’s freedom of belief" because if he were to approach the supporters' case honestly he would have to acknowledge that they are in fact supporting a balancing test - the rights of the child against the rights of the parent to perform a medical procedure that the parent believes is mandated by religion. Douthat can't keep himself from resorting to hyperbole, that the ruling "would effectively outlaw Judaism itself", as if no Jew has ever had an early or late circumcision, or as if it's impossible for a boy or man to convert to Judaism once he's nine days old. I don't mean at all to belittle the religious issue, but there's no need for that type of sensationalism.

The fact that Douthat has to reach all the way to Germany to find evidence of an encroachment on religious liberty is less evidence of the rarity of this type of conflict, and more of the fact that Douthat's argument is driven by his own ideology. He could instead pick up the cause of parents who, in the name of their religion, would deny an infant or child a potentially life-saving blood transfusion.

Douthat's third and last example is "the great Chick-fil-A imbroglio". Although a handful of politicians to whom Douthat alludes are deserving of cricism for suggesting that they might discriminate against Chick-fil-A based upon the statements of its founder, Douthat is confusing the exercise of speech rights with the free exercise of religion. He also fails to distinguish fair comment - a politician's standing up for the rights and freedoms of his own constituents - for interference with the free exercise of religion.

Does Douthat believe that the president of Chick-fil-A's statement was mandated by his religion? No? Then what we're seeing is his choice to make a public statement about his personal religious beliefs. While that might fall under Douthat's made-up version of what the Free Exercise Clause is supposed to mean, from a constitutional perspective we're actually talking about freedom of speech. The president of Chick-fil-A has the constitutional right to say what he wants about gay marriage based upon his religion, and everybody else in the country has the right to respond with support, condemnation or indifference. Even within the context of grandstanding politicians it's a speech issue - no politician or political entity has actually discriminated against Chick-fil-A based upon its president's statement.

Also, within the context of religion, what are we to make of Douthat's assertion that the president of Chick-fil-A "supports 'the biblical definition of the family unit'"? Because last I checked, the Bible included some family units that, by today's standard, are quite unusual. Even if we limit discussion to the New Testament, Douthat will find no shortage of people who will quote scripture to support their belief in polygamous marriage.

Whether intentionally or because he can't help but view the world through a manichean prism, Douthat creates a false dichotomy between the president of Chick-fil-A and the politicians, with the president simply engaging in the free exercise of religion and the politicians are, de facto, neither religious nor concerned about the free exercise of religion. Is Douthat seriously arguing that Mayors like Rahm Emanuel and Michael Bloomberg don't care about religious freedoms? That they're on the side of secularists who would back judicial edicts that "effectively outlaw Judaism itself"? And has Douthat truly failed to notice the considerable criticism of the political grandstanding from the secular community? I recognize that it's easier to caricature your opponents, to roll up every person who takes any position you don't like, to ignore their actual statements, and to pretend they're a monolithic "other" that stands against all that is true and good. But even if he can't reach the point of internal consistency, can't Douthat at least try to be plausible?

Toward the end of his column, Douthat mentions the need to balance the free exercise of religion against the interest of society, but rather than giving that difficult balance the serious consideration it deserves he invokes the absurd,

We do not allow people to exercise beliefs that require, say, forced marriage or honor killing. You can believe in the gods of 15th-century Mesoamerica, but neither Chicago values nor American ones permit the use of Aztec sacrificial altars on the South Side.

Again, it's the easy cases. The ones few to none would find controversial. The implication is, "The judge thinks that circumcising male babies is akin to human sacrifice," rather than examining the court's actual rationale and the actual balancing of interests that the court attempted to achieve. Harder cases, like denying a child antibiotics for an infection, a blood transfusion for surgery, or medical treatment for an easily treatable ailment that, left alone, is life-threatening or terminal? Douthat, it seems, has no interest in the difficult questions.

Even in the context of his examples, though, it's surprising that Douthat can't find a parallel. Why do we forbid honor killing in the name of even the most sincere religious belief? Why do we forbid parents from forcing their children to marry in the name of religion? Because we recognize that the parent's free exercise of religion can affect their child, and that the child is a separate individual with rights that may justify overriding the parent's religious beliefs and, at a certain age, that it should be the child's choice as to whether to follow the religious beliefs of a parent or to choose a different path.

The judge in German was not forbidding circumcision - he was holding that the procedure could wait until the child was old enough to make an informed decision. While you can disagree with that decision on a number of grounds, if you accept that society can forbid parents from completely disregarding a child's autonomy and individual rights in the name of religion, we're talking about a ruling that differs in degree from the circumcision ruling but not in kind.

If you read Douthat, no surprise here, no small part of his argument is predicated upon the fact that he's not comfortable with sex, and is particularly uncomfortable with female sexuality.

To the extent that the H.H.S. mandate, the Cologne ruling and the Chick-fil-A controversy reflect a common logic rather than a shared confusion, then, it’s a logic that regards Western monotheism’s ideas about human sexuality — all that chastity, monogamy, male-female business — as similarly incompatible with basic modern freedoms.

Nobody familiar with Douthat's past writing is going to be surprised that when he thinks of birth control he thinks of slutty coeds trying to get into his pants, not of married women who want to limit the size of their families or women of any age trying to address conditions such as endometriosis and menstrual cramps. But it astonishes me that to Douthat, the sole reason that a judge might be concerned about circumcision would be that it might "deny one’s offspring the kind of sexual gratification that anti-circumcision advocates claim the procedure makes impossible". When he writes,

[Religious ideas] certainly cannot be exercised in ways that might make anyone uncomfortable with his or her own sexual choices or identity.

Douthat gets it exactly backwards. It's not others who want to limit his exercise of his religion lest he "make anyone uncomfortable with his or her own sexual choices or identity" - it's he who wants to impose his religious values on the rest of society so that he never has to feel uncomfortable with his own, awkward sexuality. And believe it or not, from there Douthat's thinking becomes even more convoluted,

It may seem strange that anyone could look around the pornography-saturated, fertility-challenged, family-breakdown-plagued West and see a society menaced by a repressive puritanism. But it’s clear that this perspective is widely and sincerely held.

I'm looking around... funny, I can't see any pornography from here, my marriage seems intact, I have a child so I can't be all that "fertility challenged"... although I suspect that Douthat means the opposite, that the challenge of fertility he perceives is that, believe it or not, some people want to have sexual intercourse while avoiding pregnancy. The only intrusion into my conservative family idyll is a nag of a columnist lecturing me about the decay of society. So I guess from where I'm sitting, at least at the moment his puritanical bent is a bigger issue than our decadent society.

To be more fair to Douthat, yes, it's difficult to conceive of a religion that would not find fault with some aspect of our society - whose practitioners would not find something to be at odds with their sincerely held religious beliefs. That, however, has been the case for all of human history. Yes, like Douthat many religious people will be uncomfortable with our society's treatment of sexuality. But let's be honest, you don't even have to be religious to take issue with our society's approach to sexuality, nor is it only the non-religious who engage in sexual practices that would make Douthat blush.

Douthat believes that the use of birth control is morally wrong? Fine, great, nobody's making him use it. But let's not pretend that there aren't millions of devout Catholic men and women who don't share his dogmatism on the issue. He is free to lecture them that they're not being true to the teachings of their church, and they have every right to ignore him. A constitutional right, at that. It's not those men and women who want "to use the levers of power to bend [Douthat] to [their] will" - again, it's quite the opposite.

When Douthat complains that anybody who disagrees with him necessarily "regards Western monotheism’s ideas about human sexuality — all that chastity, monogamy, male-female business — as... incompatible with basic modern freedoms", he's quite incorrect. But it's perfectly reasonable to point out that much of the "chastity, monogamy, male-female business" emphasis of "Western monotheism" was historically directed not at regulating boys and men, but at regulating girls and women. Not that Douthat would care, but the 20th Amendment - granting women the right to vote - is still less than a century old.

We're similarly not that far removed from an era in which our nation had legal slavery, and even closer to an era in which interracial marriage could result in incarceration - and in both cases, you could find defenders of the practices who advanced sincere, Christian religious arguments in favor of the status quo ante. Now, I expect Douthat would find it obvious that Christianity holds slavery and racial discrimination to be abhorrent. When the government says, "You have to let African Americans rent rooms in your hotel," that offends some hotel owners' free exercise of religion. When society forces changes of that type, is it a bad thing, period, end of story, because it offended some people's religious sensitivities at the time, or can we accept that after a period of adjustment most religious institutions will find themselves agreeing with the change?

Contrary to Douthat's suggestion, our society has a long and proud puritanical streak. While it does not bother Douthat, and perhaps he would even prefer that it were more dominant, there are people in our culture who object to the treatment of women as second-class citizens, and who find it objectionable that people like Douthat use their religious beliefs to advance public policy that makes it more difficult for women to participate in society as equals. It is in fact possible to recognize our society's puritanical streak and recognize that some aspects of our popular culture are, to put it mildly, over-the-top. If you spend time actually looking at our society, both aspects are very hard to miss.

If you want to cloister yourself among people of your religion, living in seclusion, untouched by the corrupting elements of society at large, you have every right to do so. What you cannot reasonably expect to do is to come out of that seclusion into greater society without ever being offended, and you cannot reasonably expect to engage with a larger society that does not share your religious values without ever having those values weighed against the needs and rights of others, and of society as a whole. And sorry, if it feels like society is "bending you to its will" when it tells you that you cannot impose your religious beliefs on others, such is the consequence of living in an open society where others are also permitted to hold and exercise religious beliefs of their own, even if they differ from yours.

Is the Roberts Court Embracing a "Living Constitution"

I hardly know what to say in response to this editorial by Charles Lane, attempting to analyze why the Supreme Court might embrace a newly invented doctrine in order to reverse "Obamacare". Lane points to a bit of hyperbole from Akhil Amar, who suggests that a 5:4 decision reversing the Affordable Care Act will prove that the Supreme Court now decides cases based on politics, money, party and party loyalty, not the rule of law. He then snipes at law professors as "more liberal than the general public", adding,

Remarkably few of them have shown the perspicacity of Amar’s Yale colleague Stephen Carter, who has written: “Both sides have a point. The mandate to purchase health insurance does indeed run counter to the libertarian strain of the American tradition, and the arguments in support of federal power don’t have a logical stopping place. On the other hand, one must also recall the egalitarian aspects of the American tradition.”

To the extent that Carter's comment is fair, it's a fair statement of politics, not of law. There's nothing in the Constitution that expresses that legislation must respect this amorphous "libertarian strain" that Carter reads into the "American tradition". If you have any libertarian tendencies, you don't have to look very hard to find a Supreme Court ruling that will make you choke on your coffee. Seriously - pick a tenet of libertarianism, any tenet, and I'll find you a case that contradicts it.

The position that "arguments in support of federal power don’t have a logical stopping place" is not actually true - if you look at the policies of the various states, virtually all of which have insurance mandates of one form or another and one of which has a health insurance mandate akin to the one at issue in the ACA, you'll not find even one example of a state going beyond a "logical stopping point". What Carter is actually observing is the application of a slippery slope fallacy to the insurance mandate, in essence, "If something might occur then it will occur". The same fallacy can, of course, be applied to the regulation of activity under the Commerce Clause - or, for that matter, pretty much any constitutional argument.

It is much easier to assert a slippery slope argument, pulling an absurd example out of the air or off of a right-wing talk show, and to suggest that "If we allow an insurance mandate the government can make us eat broccoli", than it is to address the actual issues implicated by the case. But when you hear somebody resort to the slippery slope instead of addressing the realities of the healthcare market, you can pretty much take for granted that the reason they are doing so is that they are incapable of addressing the subject in a logical manner - at least without conceding most or all of the case made by the proponents of the ACA.

The counter-argument described by Carter is no better. Just as there's no "libertarian strain" clause in the Constitution, there's no "egalitarian" clause. When the Constitution speaks of equality, it is in the 14th Amendment's "Equal Protection" clause. The General Welfare Clause does not imply legislating people into some form of economic equality. Being treated as an equal by the state, by the courts and by the law, is something entirely different from a legislated economic equality.

While Carter does present two political philosophies that are in tension in relation to healthcare reform in general, they're not in conflict when it comes to the health insurance mandate. If there's a mandate in which everybody must buy insurance, the sensitivities of libertarians will be offended but people are being treated as equals by the law. If there's no mandate, but the law requires the provision of certain medical care to the uninsured whether or not they can pay for that care - the status quo - again libertarians are offended but people are being treated equally.

There are plenty of Supreme Court cases that advance egalitarianism - the line of cases that have given constitutional level protection to programs and policies that financially benefit the less fortunate (such as the right to counsel in criminal cases), or require that if the government provision of services (such as education), members of the community be treated as equals. But within the context of healthcare reform Carter appears to be speaking of altruism, the idea that the better off should provide for the poor, which is much more of a political philosophy, and much more of an argument for the subsidies that are not presently subject to a constitutional challenge, and appear to be constitutionally noncontroversial, as opposed to the mandate that is under discussion.

Lane asks, in advance of the Court's ruling, "What, then, led the academics to misread this case?" The "misreading" being that scholars did not expect the Supreme Court to be receptive to a newly invented distinction between regulating "activity" versus "inactivity", a distinction that quickly reduces the analysis of the issue to a semantic game, as opposed to precedent. And there's the answer: If you recast the analysis of the case that kicked off the modern approach to the Commerce Clause, Wickard v Filburn, you can transform it from a case that regulates activity ("You can't grow wheat beyond the legally imposed crop limit") and instead regulates inactivity ("You must buy your feed grain from other producers").

Perhaps the extent of the sophistry is lost on Lane, but fundamentally that's what Amar is describing - the extent to which opponents of the ACA are willing to invent new legal doctrines, eschew logic in favor of the slippery slope, and ignore or reverse almost a century of case law in order to achieve an outcome that is, at heart, political. Amer did not say that his faith in the court will be lost if the ACA is reversed, in whole or in part, by a larger majority - he was alluding specifically to a split along political lines, implicitly with the majority advancing a political argument as it's "legal" reasoning.

In explaining how the Court might come to dramatically change its approach to Commerce Clause cases, Lane presents an awkward attempt to distinguish law from politics:

I don’t think this history proves that “politics, money, party and party loyalty” crassly determined the decisions of the 1930s. If that were true, why accord them precedential weight today?

Rather, what it shows is that the United States periodically redefines the role of the federal government in society, in a process that is both political and legal — and, sometimes, more revolutionary than evolutionary. In that sense, we do have a “living Constitution.”

If it needs to be said, the reason you give precedents, good or bad, "presidential weight" is because - as was noted up front - they're precedents. Several members of the Court have made clear that they do not feel any reluctance to overrule cases they view as legally unsound, but even they have traditionally hesitated at reversing cases that are integral to our modern state and government. There is nothing in the Constitution that mandated the libertarianism of the Lochner era, nor that prevented the Court's shift to an expansive view of the Commerce Clause in Wickard, but let's not pretend that we could return to the Lochner era without a massive disruption of our government and society. The better approach would be for the Supreme Court to defer to the political branches on matters of politics.

When Lane suggests that opponents of "Obamacare" are embracing a "living constitution", and are "spotting [a] historical opportunity [to reinvent the Commerce Clause] and making the most of it", he's correct. They are taking the position that the objective reading of the text of the Constitution should take a distant back seat to the political issues of the day, and that if you lose at the ballot box you should attempt to get politically sympathetic judges to convolute new arguments to reverse the opposing party's legislative accomplishments. A conservative Justice might respond,

If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility.

So yes, it will be interesting to see if, as Lane suggests, a 5:4 conservative majority will reject the idea that political issues should be resolved by elections, that constitutional analysis should not turn on the actual language of the Constitution, that it's less important to ask whether Congress has the power to do something than it is to look at its choice of words when drafting legislation that falls within the scope of its powers, and very much bring the Constitution to life.

Justices Breyer and Bork - Separated at Birth?

Back when I was in my first year of law school one of the professors, regarded by most students as a political partisan, told the class not to worry - when grading the exam, he promised, he would not take politics into consideration. He later refused to give the book award to a student who, although from the opposite end of the political spectrum, wrote what to a casual reader might have appeared to be a parody of the professor's ideology - by virtue of blind grading he earned the highest grade in the class. To the odds that they disagreed with the professor, students who adhered to their own political viewpoints fared considerably less well. I discussed the class with an experienced professor who explained that I should not view the professor as having broken his word. He argued that, in the mind of the professor, he was not grading students down for their ideology. More likely, he was issuing lower grades to the students who gave the wrong answer, which just happened to be any answer that did not mesh with his ideology. From a student's perspective that may seem like a distinction without a difference - either way you have to comport your views to those of the professor to get a top grade.

An editorial by Professor David Bernstein of George Mason Law School and one of his former students, which I think can be reasonably described as an attempt to vilify Justice Stephen Breyer, brought that experience to mind. If Professor Bernstein believes his editorial to be an example of good reasoning, it is difficult for me to imagine how he would grade a well-reasoned exam addressing a similar issue. No, I'll correct that: I imagine that the experience would be analogous to that of students in the aforementioned law school class.

The editorial asserts that,

In the nine cases that split 5-4 along ideological lines in the court’s past term, Breyer wrote four dissenting opinions — only one fewer than Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan combined.

This is a troubling development for those, liberal or conservative, who value the Constitution’s protections of individual liberty.

Usually, law professors are a bit more nuanced in describing how the court makes its decisions. The justices, we are told, may apply different ideological approaches to constitutional interpretation, but its simplistic to reduce cases to mere ideology with the "liberals" on one side and "conservatives" on the other. Yet here we have a sample size of nine cases that split 5-4, and for which Bernstein is suggesting that the deciding factor was not law, but was a clash of liberal versus conservative ideology.

Let's leave aside for the moment whether Bernstein's selection of the nine cases was objective and assume that, despite the tiny sample size, he's not making a hasty generalization. What is it that Bernstein is suggesting that we should find disturbing? Is he suggesting that we should be disturbed that a justice dissented in four of those nine opinions, the proposed superior alternative apparently being to jump into one ideological camp or the other. Or is he suggesting that we should be disturbed by the other eight justices who, unlike Breyer who is the most likely to decline to jump into one ideological camp or the other, join opinions based on ideology as opposed to the opinion best supported by the law and facts? We can infer from the tenor of the editorial that it's the former, but there is no basis to be disturbed based on those facts alone. When Justice Scalia was best known for writing dissenting opinions was he a disturbing ideologue, whose views have since tempered, or could it be that as justices retire and are replaced it's possible to hold the same opinions while nonetheless ending up joining or dissenting in a markedly different percentage of the cases you hear?

Bernstein continues,

Contrary to American tradition going back to the Declaration of Independence, Breyer believes not in liberty against government overreaching, but in what he calls “Active Liberty” — the right of democratic majorities, guided by elite experts, to govern as they see fit.

Wouldn't it be more accurate to say that Breyer is proposing an ideology that stands in contrast to Scalia's text-based originalism, with the idea being that you need to look beyond the words and their original meaning, and examine the intended purpose of constitutional language when interpreting that language? That when reviewing legislation that fits within the broad parameters of Constitutional language, democracy has a leading role: "That space is for people to decide for themselves what they want. And [the Supreme Court is] just policing the far boundaries of that space"? Whether or not you agree with his philosophy, has Breyer ever described active liberty in a manner for which Bernstein's description is a fair summary, or even a fair parody?

Having announced in the headline to the editorial¹ that "Breyer shows progressive streak", Bernstein makes an interesting claim, that Breyer is like Robert Bork:

Like Breyer, Bork rejected modern cases protecting individual rights, instead favoring majority rule — and as a result was denied a Supreme Court seat.

That is, based upon his dissenting in four close cases, and upon Bernstein's interpretation of his philosophy of "Active Liberty", Breyer the "progressive" is difficult to distinguish from a nominee generally considered to be at the far right of the political spectrum. I guess we're not striving for internal consistency?

Bernstein argues based on Breyer's dissent in Brown v. Entertainment Merchants Association that "While Breyer claims to believe in self-government, his opinions reveal contempt for its most basic aspect: the right of individuals to run their own lives free from excessive government interference." To this end he argues that Breyer does not adhere to post-1930 cases giving an expansive interpretation of the First Amendment, and instead believes that "most laws that infringe on freedom of expression should be upheld if the government has a rational reason for interfering with free speech, an extremely forgiving and deferential standard." Given that Bernstein's principal hobby is "Rehabilitating Lochner", that is, returning to the philosophy of a 1905 case that held it impermissible for a state to regulate employees' working hours, it seems a bit odd that Bernstein is attacking Breyer for taking an approach to the First Amendment that the Lochner majority might find to be absurd and unsupportable by the Constitution. Also, although for different reasons haling back to the "founding generation’sunderstanding of parent-child relations", Clarence Thomas also dissented. That's not a rejection of 20th century First Amendment jurisprudence? Or, as with Bork, are Thomas and Breyer two peas in a pod?

Also, if we are to be bent out of shape because Breyer dissented in four of nine 5:4 decisions, why is Bernstein's only example from that same term a 7:2 decision? Should we infer that he found no support for his thesis in the opinions that supposedly best support his thesis? Also, Brown v. EMA was at its heart about protecting minors. Should it not be mentioned that the courts apply different standards in cases involving minors than in cases that involve only adults, Morse v Frederick (the "Bong Hits for Jesus" case) being a case in point? For that matter, how do Breyer's votes in cases like Gonzales v. Carhart and Lawrence v Texas support the idea that he defers to the popular will or advances a 19th century ethos at the expense of individual liberty?

Bernstein then adds to the mix another Justice who is just like Breyer (and thus, presumably, just like Bork and possibly Clarence Thomas): Oliver Wendell Holmes, Jr.

In this and other contexts, Breyer's jurisprudence harkens not to great liberal justices of the mid-to-late 20th century, such as Earl Warren and William Brennan — who whatever their flaws, had a deep and abiding belief that civil liberties must be protected from government encroachment — but to an earlier generation of judges associated with the progressive movement, such as Justice Oliver Wendell Holmes Jr.

It appears that Bernstein is following the common deception of taking two completely unrelated political movements that operate under the label, "progressive" and implying to his readers that they are the same. The first movement is the long-extinct Progressive Movement of the late 1800's to early 1900's, and the second being a population of modern liberals who, having seen that political label successfully tarred by Ronald Reagan, prefer the term "progressive" as a less politically loaded alternative. This is a common tactic employed by those who attempt to tar modern liberals with the host of discredited philosophies of the completely unrelated historical Progressive Movement. It is technically true to say that there are Justices associated with the historic Progressive Movement, but it is abject dishonesty to imply that those Justices were progressives in the modern conception of the term. Bernstein's own assertions belie his attempt to associate Justice Breyer with that historic movement:

Like Breyer, many early 20th century progressive jurists had a soft spot for protecting political speech, but they otherwise rarely met a statute they thought exceeded constitutional boundaries. These progressives advocated deference to the government for the same reasons Breyer articulates: reverence for experts, belief in majority rule, and the need to protect society from itself. As a result, progressive judges approved segregation laws, laws banning private schools, laws limiting women’s ability to participate equally in the workplace, and more.

So the question follows: Where in Breyer's seventeen years on the Supreme Court can I find support for the notion that he would vote to uphold segregation, ban private schools, exclude women from the workplace, or... support whatever it is that Bernstein summarizes as "and more"? Breyer is just like the historic progressives, except that he would explicitly reject their legal reasoning and conclusions on every issue Bernstein mentions? Also, if support for segregation and diminishment of protections against workplace discrimination are hallmarks of "progressivism", by Bernstein's measure which of the Courts conservative justices aren't markedly more "progressive" than Breyer? What of history's many conservative justices who voted for the parade of horribles mentioned by Bernstein, along with forced sterilization of people deemed mentally defective - short of an unwillingness to let the state define maximum workweek, is historic conservatism a movement that is also too deferential to state power? Perhaps he intends to reference process, not product, but it is difficult to see how we can characterize Breyer and Bork as unduly deferential to legislatures and democracy given that they so often come to opposite conclusions.

When New Deal liberals took over the Supreme Court in the late 1930s, however, they rejected the earlier progressive vision and proceeded to provide strong protection for the rights listed in the Bill of Rights.

And if it needs to be said, the philosophy of those liberal justices is at the foundation of modern liberalism, even when it's rebranded as progressivism.

Breyer’s apparent ascendancy as doyen of the court’s liberal wing threatens to roll back decades of these pro-liberty precedents, and to destroy the consensus on the court that freedom of speech and other essential rights must not be sacrificed to the shifting whims of legislative majorities

We're again back to the prior logical error, that something has changed about Breyer that has caused him to "ascend" to some sort of pivotal role. In fact we're seeing the same phenomenon we've been witnessing for many years - as the composition of the court changes and its ideological balance shifts, a justice who used to be clearly in one political camp or the other is suddenly characterized as a "swing vote". He still has only one vote, his voting record remains consistent, but suddenly he's treated as if he is the sole decider on the court, the most important vote. Really, he still has one vote.²

If Bernstein is correct that Breyer hopes for a return to the First Amendment jurisprudence of the eighteenth and nineteenth century³ we have nothing to worry about, as the iconoclastic yearning for a return to yesteryear by the two dissenting justices, justices who don't even agree with each other, falls far short of creating a majority. Moreover, if Bernstein is professing to be concerned only with the "majoritarianism" of judges like Bork and Breyer, even if you accept his point there is obviously nothing inherent to that judicial philosophy that "threatens to roll back decades of... pro-liberty precedents" as it is clear that Breyer has largely voted in favor of their continuation. That is, even if we assume that the historical Progressive Movement, Bork and Breyer all share the same philosophy of law and constitutional interpretation, there is no consistency in their application of that philosophy. If Bernstein is right, there is an echo of Holmes. Justice Holmes was known as "The Great Dissenter". If Bernstein's prognostication proves correct, the most likely outcome is that Breyer will earn the appellation, "The Not-So-Great Dissenter".

Meanwhile, it appears that judges on the left of the court can't win. If they reject legislation they're activist. But if they instead presume constitutionality and defer to Congress, it seems that they're heirs to the historic Progressive Movement.

Update:  Bernstein has posted a follow-up,

The basic point of the op-ed is that,,, Breyer’s intellectual roots are less in the sort of modern liberalism that animated the likes of William Brennan, and more “in pre–New Deal, early twentieth century progressivism, an outlook with an animating faith in government by expert, acting as stand-ins for the (uninformed) people at large.”

This does not, of course, mean that Breyer would vote the same way in particular cases in 2011 as a Progressive would have in 1911. Breyer, like everyone else, has been influenced by the civil rights movement, the women’s movement, and other massive social changes that have taken place in the last one hundred years.

That, like Bernstein's comments to his original post, contradicts the position taken in his editorial that "Breyer’s apparent ascendancy as doyen of the court’s liberal wing threatens to roll back decades of these pro-liberty precedents, and to destroy the consensus on the court that freedom of speech and other essential rights must not be sacrificed to the shifting whims of legislative majorities." In the most technical sense that's not inconsistent, but it leaves one wondering exactly what liberties Bernstein has in mind that might be rolled back. In the specific context of Brown v. EMA, one might ask Bernstein, "What did Justice Brennan think about video games. Did he enjoy them?" As I recall, the conception of free speech of the early 20th century, while trending toward increased protection of speech rights, initially took for granted that the state could censor and ban the import of books, censor movies, put serious restrictions on commercial speech, impose the Fairness Doctrine, and broadly restrict speech in the interest of protecting women and children - positions considerably more restrictive than that proposed in Breyer's dissent. The more convincing argument was made by Bernstein's co-author in a comment, that "Breyer’s conception of constitutional law is grounded in the modern-jurisprudence that emerged during the Warren Court when he went to law school, and clerked" - but that claim was cut from the editorial for the obvious reason that it contradicts the thesis that Brennan's conception of constitutional law is grounded in the historic Progressive Era.

Having walked back from his claim that Breyer will roll back civil rights, Bernstein continues,

But it does mean that he is prone to making the same category of error pre-New Deal jurists made, in giving too strong a presumption to legislative outcomes supported by a consensus of elite experts at the expense of individual rights.

Bernstein suggested in comments to his original post that there have been many conservative justices in the 20th Century who have given similar deference to legislative outcomes, defending his selective criticism of Breyer, "Do you expect me to write a 2011 op-ed about William Rehnquist? Robert Bork? Maybe John Marshall Harlan II?" No, but not because people don't remember Rehnquist. I don't expect it because if you were to write an editorial accusing William Rehnquist of being an heir to the Progressive Movement, and lament that he would defer to Congress in contexts in which Justice Brennan would have held a law to be an unconstitutional infringement on our rights, you would create immediate cognitive dissonance on the part of the reader. "But Rehnquist was a judicial conservative who upheld the constitution rather than 'legislating form the bench' like the 'liberal' justices."

Bernstein initially suggested that Breyer might have upheld the detention of people of Japanese ancestry during WWII, "Breyer discusses Korematsu at length in a recent book, and he never does get around to saying that the Court should have deemed Fred Korematsu’s detention illegal". He then has to correct himself, grudgingly admitting, "Breyer does offhandedly state on page 191 that Murphy, dissenting, was right in the Korematsu case itself, even though his opinion was unworkable" and asserting "that Korematsu would not, under Breyer’s view, have been entitled to a speedy, individualized hearing upon detention, much less immediate release". He complains, "it’s not clear on what grounds the Court Breyer thinks the Court could have ordered Korematsu’s release while still appropriately deferring to the executive", apparently failing to consider that his own thesis may be incorrect or overstated and that Breyer might feel little to no need in a case such as Korematsu to defer to the executive.

Bernstein explains himself,

Obviously, my views are not on the modern liberal/progressive left, so I’m not going to be particularly happy with any given liberal Justice. But I much prefer left-leaning judges who have a strong sense of the importance of individual rights and the dangers of excessive government authority than ones who do not.

The funny thing is, he seems to have next to nothing to say about, by his own count, the far greater number of conservative judges and justices who have little sense of the importance of individual rights and the dangers of excessive government authority. It's horrible that Breyer will largely vote to uphold certain civil rights despite his ostensible tendency to defer to the legislature, but it's no biggie that conservative courts have spent decades actively scaling back our rights due to an identical tendency? Is the distinction truly that Justice Rehnquist is yesterdays' news, or could it be that Bernstein largely agrees with conservative judicial activism and thus his silence is driven by ideology.

At the end of all of this it appears that you could summarize Bernstein's editorial in one sentence, "Justice Breyer is more inclined than any other liberal Supreme Court justice to defer to the legislature at the expense of our civil rights, placing him within a larger camp of conservative judges who do the same thing, the key difference being that Breyer is a liberal and thus the theoretical implications of his deference are of much greater concern than the actual roll-back of many civil liberties at the hands of those conservatives."
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1. The headline to an editorial is often selected by the publication, not the author; that headline implies that the editorial page editor conflates modern liberalism (under the name of progressivism) with the historic Progressive Movement, and interpreted Bernstein's editorial as supporting that belief. Bernstein argues something else in the comments to his blog post on the subject, but the headline does appear consistent with the actual text of the editorial.

2. Bernstein adds in a comment,

[S]ince the 1950s, it’s been them, far more than the liberals, who have been the heirs to the Progressives, especially on 14th Amendment issues. Which is why it’s important to nip the Breyer thing in the bud.

So for sixty years Bernstein believes that a terrible judicial philosophy from the Progressive Movement has been championed by conservative justices, so it's important to "nip in the bud" the first instance of a left-leaning judge who ostensibly shares that approach? With "nipping in the bud" translating into "raising the subject after he's served on the court for seventeen years"?

3. Bernstein's co-author comments,

In a portion of the Op-Ed we trimmed, we wrote about how Breyer’s conception of constitutional law is grounded in the modern-jurisprudence that emerged during the Warren Court when he went to law school, and clerked.

I would not be surprised if that argument is convincing, but I thought the argument was that Breyer's conception of constitutional law reflects a pre-1930's sense of individual righs and a conception of constitutional law associated with the historic Progressive Era.

Originalism vs. Textualism and the Constitution

Jeffrey Rosen's article about Justice Scalia in the New York Times reminded me of some "back of my mind" thoughts on Justice Scalia's all-too-convenient approach to constitutional interpretation. A recent example, his construction of the 14th Amendment, in relevant part,

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Justice Scalia has previously described himself as a "textualist":

“I’m not going to rip all that up; it’s water under the dam,” he said in a 1997 speech. “In other words, I am an originalist. I am a textualist. I am not a nut.”

That should mean that he would look to the text of the Constitution and, to the degree necessary, try to figure out what the language meant at the time it was drafted so as to properly interpret its text. The textualist response to the argument that the legislature picked the wrong word is, "Too bad, so sad" - courts interpret statutes as written and if the legislature wants to change the language that's their job, not the job of the courts.

Except Justice Scalia isn't actually a textualist - at least, not when the text of the Constitution interferes with his political beliefs. For example, more than two centuries after-the-fact, he doesn't mind expanding principles of sovereign immunity based upon... where is the constitutional language recognizing sovereign immunity again? Well, not so much textualism there. But really, the example that pushes this to the forefront is his view on gender equality:

Justice Scalia also insisted that the equal-protection clause of the 14th Amendment wasn’t intended to apply to discrimination based on sex or sexual orientation, and that the Supreme Court has erred by regulating both. “Nobody ever thought” that the Constitution banned sex discrimination, he said.

There's no ambiguity here: Scalia believes the court has erred in finding that the Equal Protection clause of the 14th Amendment applies to sex discrimination. So is he arguing that at the time the 14th Amendment was drafted, women did not fit under either the concept of "person" or "citizen"? Because the text is pretty clear, isn't it. Nope. He seems to believe that it's proper to decide that the drafters of the 14th Amendment and the various political bodies that passed and ratified that Amendment chose the wrong words, and thus that he has the right to revise the text of the Constitution from the bench. As a self-professed textualist, Scalia should be looking for the meaning of terms such as "person" or "citizen" only if they're not clear from the Constitution as a whole, and even then only in relation to what those words meant at the time the Amendment was drafted. He should only be looking at intent if, after those initial steps, the language remains ambiguous.

The Corporation as a "Speech Tool"

In the latest in a series of silly posts by the law professors at The Volokh Conspiracy, defending the Supreme Court's treatment of corporations as if they're living, breathing human beings, Ilya Somin contends that we need not look at corporations as exercising independent speech - that they're tools used by real people to advance their arguments.

When corporations “speak,” they are just a means that individuals use to exercise their rights of free speech — often a more effective means than the available alternatives. And just as the right protected in Griswold actually was a human right rather than a right belonging to the contraceptives, property rights are rights of human owners, not rights belonging to tracts of land or objects.

That's a decent public policy argument for allowing corporations to have some speech rights, and you know what? Virtually no one contends that corporations should have no protected speech rights. But that doesn't mean they are persons entitled to the full protection of the First Amendment. It's similar to Somin's prior post that the owners of corporations are real people. Well, duh. I personally own a corporation... but when it turns 18 I don't get to vote twice.

I have yet to see a compelling answer from advocates of corporate free speech absolutism for corporations as to why a corporate entity that exists only by virtue of a license from the state can't be limited by that state in the extent of its "personhood". We actually do restrict the speech of certain entities that want to qualify for tax advantages - churches, charitable organizations - why is that constitutional? Given that corporations pay a different tax rate than real, living breathing human beings, would those tax advantages justify similar limits on their speech rights? Or are we going to strip away the restrictions on political lobbying and advocacy for political candidates that we impose on some corporations but not others?

Justices like Scalia and Thomas praise themselves for staying within the confines of the language of a statute or the Constitution. (They don't always do that, but we're not supposed to notice.) Justices and judges who follow their school of interpretation will tell you that if it's not in the statute it's not their job to insert new language - that's the job of the legislature. There's nothing in the Constitution that would suggest that references to the People are meant to encompass fictitious persons. To the extent that legislatures have chosen to grant rights to corporations, for good public policy reasons, there's nothing in the constitution that says "they can't limit those rights" or "they can't offer substantially fewer rights than the Constitution grants to living, breathing human beings." It's pure judicial activism to rewrite the Constitution in the manner of the Citizens United majority.

If they believed their own words, Justices like Scalia and Thomas would apologize that although they think it would be a good idea to amend the Constitution to grant full (or near-full) rights to Corporations, but that it's not their job to judicially rewrite our nation's founding document. But... they don't. (But when it comes to the rights of real people, particularly people who aren't sufficiently deferential to authority, broad limits on speech are easily rationalized. Stupid kid was 18 - he should have formed the "Bong Hits for Jesus Corporation" and held up a constitutionally protected advertisement.)

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen

I think Apple, born in California and now 34 years old, would be an excellent Member of Congress. And it's almost old enough to become President!

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

So why does the census discriminate against states like Delaware and Nevada by not including their corporations? Those states deserve more Members of Congress! Shenanigans!

This is every inch the type of activism that "conservatives" claim to hate. Having failed at the ballot box, they went to court to get legislation from the bench. (I would call my examples, above, reductio ad absurdem, except it could be a mere four years from now that President Halliburton dispatches Vice President Xe to detain me for having such dissident thoughts. Presidents, after all, should be able to indefinitely detain anybody they deem a threat to the nation, right?)
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Update: Somin adds,

I should clarify that in this post, as before, I’m not arguing that corporations themselves are “persons” with constitutional rights. Rather, I’m asserting that their owners and employees are such persons and that that status enables them to use corporations to exercise their constitutional rights.

Given that he's defending the Citizens United decision, that just doesn't ring true. The issue is not, and has never been, "Can Joe Smith give $100 to support a Member of Congress". Of course he can. The issue is whether the corporation, apart from Joe Smith, can give money and support in its own right. I accept that a public policy argument can be made to protect certain forms or levels of "corporate speech", and that there are times when individuals could point to corporations and other similar entities and say that speech limits on those entities violate their personal Constitutional rights, but it's not the Supreme Court's role to ignore the actual language of the Constitution - that, again, is legislation from the bench.

Further, if it's the individual right that is being burdened, why is the plaintiff a corporation seeking protection of its rights rather than owners or shareholders complaining that limits on corporations negatively affect their individual, constitutionally protected rights? If Joe Smith wants to give $100 to his corporation then direct his corporation to give the money to a Congressional campaign, he can leave out the middle man - Joe Smith don't need an activist decision giving the corporation additional rights to give his money to the campaign.

It's only if the corporation is making an independent assessment, even by virtue of the collective actions of the people who control it such that they diverge from what Joe could do individually, that Joe's personal speech rights are affected. In terms of monetary contributions, it's only when the contribution reflects corporation's independence from shareholders and owners with a minority interest (such that the same money could not flow directly from them, individually), or the distribution of funds vastly beyond what the owners would produce from their own pocket (this isn't about "mom and pop" firms) that it becomes necessary to find it "unconstitutional" to limit the corporation's "right" to shower money on political candidates and causes - because in the other contexts the money can still be contributed in equal volume.

It's not enough to say that some corporations, such as media corporations, are viewed as important tools to advance free speech. Again, if an individual has his rights affected by government restrictions on business entities, the individual can bring a lawsuit under the First Amendment - and nobody is disputing that living, breathing people enjoy full protections under the First Amendment.

Again, why is it that lawprofs like Somin get their noses bent out of shape when the nation's largest corporations are restricted in their "political speech", but don't even raise an eyebrow about the restrictions imposed on charitable organizations, churches... how about lobbyists representing foreign governments? The money may be foreign, but if it's a domestic non-profit owned by citizens, doesn't Somin's argument strip away any Constitution-based reason for treating it differently than any other for-profit enterprise?

Cue Final Jeopardy Music

Richard Cohen offers up yet another column that makes you wonder how he got his job.... He expresses that Judge Sotomayor was qualified to be made Justice Sotomayor, but is perplexed as to why she was chosen from among other qualified candidates.

But she has no cause, unless it is not to make a mistake, and has no passion, unless it is not to show any, and lacks intellectual brilliance, unless it is disguised under a veil of soporific competence until she takes her seat on the court.

Yes, the brilliant Richard Cohen sees no evidence of cause or passion in the résumé of a former director of the Puerto Rican Legal Defense and Education Fund. But, you know, let's take him at face value. Cue the music...

• What are the "causes" and "passions" of the other Justices presently serving on the Supreme Court?

• Where and when has Richard Cohen praised their passionate, cause-driving lives, or criticised them for an apparent lack of passion or causes?

• Same questions, but in relation to a lack of obvious brilliance, or in relation to Justices "hiding" their brilliance by being consistently competent?

As for competence being "soporific", what does Cohen think appellate judges do? He expects legal opinions to read like Harry Potter novels? I suspect he's in fact telling us about himself - that he tried to find evidence of bias in Sotomayor's opinions, but found the actual search for facts to be too boring, so he instead served us up a helping of his usual mind-slop.

In the meantime, Sotomayor will do, and will do very nicely, as a personification of what ails the American left. She is, as everyone has pointed out, in the mainstream of American liberalism, a stream both intellectually shallow and preoccupied with the past.

Cue the music: Which opinion columnist, named Richard Cohen, is widely considered to be intellectually shallow and to personify what ails the American left? (Did I give him a big enough hint?) I mean, seriously, this sort of ad hominem is fun, and all, but Cohen would be better served by leaving it to the likes of Ann Coulter. Case in point:

What, though, about a jurist who can advance the larger cause of civil rights and at the same time protect individual rights? This was the dilemma raised by the New Haven firefighters' case. The legal mind who could have found a "liberal" way out of the thicket would deserve a Supreme Court seat. As an appellate judge, Sotomayor did not even attempt such an exercise. She punted.

This is what. Cohen's seventieth¹ column on the firefighter's case? And he's offered what, other than whininess, as a "'liberal' way out of the thicket"? In fairness, I suppose, he's not claiming that he deserves a Supreme Court seat, but it's a bit tiresome to have people like Cohen set as benchmarks for qualification tests they're woefully unprepared to meet themselves, while pretending to be competent to speak on the issue.

She was similarly disappointing on capital punishment. She seems to support it. Yet it is an abomination. It grants the government a right that it should never have, one that has been abused over the years by despots, potentates and racist cops. It is always an abuse of power, always an exercise in arrogance - it admits no possibility of a mistake - and totally without efficacy. It is not a deterrent, and it endorses the mentality of the killer: Human life is not inviolate.

Cue the music: Which Supreme Court Justice, at his or her confirmation hearings, expressed that the death penalty is unconstitutional? Where are Cohen's columns decrying the other nominees who did not?

Contrast her approach to this and other problems with what Antonin Scalia has done with issues close to his own heart. Where in all of Sotomayor's opinions, speeches and now testimony is there anything approaching Scalia's dissent in Morrison v. Olson, in which, alone, he not only found fault with the law creating special prosecutors but warned about how it would someday be abused?

Oh, that's cute. Cue the music:

• How much of a factor have the opinions and dissents of Justices, not yet written and on cases they have not yet heard, played in past confirmation hearings?

• What made Scalia's dissent legally correct, as opposed to according with Cohen's personal political views post-Kenneth Starr?

• How consistent was Scalia in subsequent opinions during Clinton's Presidency, when he appeared happy to bless any lawsuit, investigation or other action against a sitting President - albeit one who he politically opposed?

What are the odds Cohen read any of those opinions....

My admiration for Scalia is constrained by the fact that I frequently believe him to be wrong. But his thinking is often fresh, his writing is often bracing; and, more to my point, he has no counterpart on the left. His liberal and moderate brethren wallow in bromides; they can sometimes outvote him, but they cannot outthink him.

Is Cohen speaking about the Justices he perceives as being on the "left" or is he speaking of himself? Where can I find Cohen's columns where he takes a decision in which Scalia is in the minority, with a majority decision written by a Justice from the "left" of the court, and explains how Scalia was wrong but that the majority opinion is flawed? Let alone one that describes how it was flawed? I can't, you say? How surprising....

Scalia's a smart man, and many regard him as the smartest member of the Supreme Court. But all Cohen's doing here is "drinking the Kool-Aid". He, himself, is wallowing in bromides, albeit bromides about Scalia. Can the columnist who admits that competent, well-reasoned legal opinions make him fall asleep really pretend he's competent to compare the performance of different Supreme Court Justices?²

Cue the music: Which of Scalia's opinions convinced Cohen that Scalia offers a fresh, bracing style of writing? (I know he singled out the dissent in Morrison v. Olson, but... have you read it? Has Cohen?)

The present case began when the Legislative and Executive Branches became "embroiled in a dispute concerning the scope of the congressional investigatory power," United States v. House of Representatives of United States, 556 F.Supp. 150, 152 (DC 1983), which -- as is often the case with such interbranch conflicts -- became quite acrimonious. In the course of oversight hearings into the administration of the Superfund by the Environmental Protection Agency (EPA), two Subcommittees of the House of Representatives requested and then subpoenaed numerous internal EPA documents. The President responded by personally directing the EPA Administrator not to turn over certain of the documents, [p700] see Memorandum of November 30, 1982, from President Reagan for the Administrator, Environmental Protection Agency, reprinted in H.R.Rep. No. 99-435, pp. 1166-1167 (1985), and by having the Attorney General notify the congressional Subcommittees of this assertion of executive privilege, see Letters of November 30, 1982, from Attorney General William French Smith to Hon. John D. Dingell and Hon. Elliott H. Levitas, reprinted, id. at 1168-1177. In his decision to assert executive privilege, the President was counseled by appellee Olson, who was then Assistant Attorney General of the Department of Justice for the Office of Legal Counsel, a post that has traditionally had responsibility for providing legal advice to the President (subject to approval of the Attorney General). The House's response was to pass a resolution citing the EPA Administrator, who had possession of the documents, for contempt. Contempt of Congress is a criminal offense. See 2 U.S.C. § 192. The United States Attorney, however, a member of the Executive Branch, initially took no steps to prosecute the contempt citation. Instead, the Executive Branch sought the immediate assistance of the Third Branch by filing a civil action asking the District Court to declare that the EPA Administrator had acted lawfully in withholding the documents under a claim of executive privilege. See ibid. The District Court declined (in my view correctly) to get involved in the controversy, and urged the other two Branches to try "[c]ompromise and cooperation, rather than confrontation." 556 F.Supp. at 153. After further haggling, the two Branches eventually reached an agreement giving the House Subcommittees limited access to the contested documents.

Wow... so fresh... so bracing. I feel like I'm crossing the Gulf of Mexico by sailboat, salty wind in my face....

This is the sad state of both liberalism and American politics. First-class legal brains are not even nominated lest some senator break into hives at the prospect of encountering a genuinely new idea. The ceiling is further lowered by the need to season the court with diversity, a wonderful idea as long as brilliance is not compromised. The result has been the rout of sexism: The women are as mediocre as the men.

Cue the music: Which female columnists for a major national newspaper are as consistently mediocre as Richard Cohen? When was the last time Cohen served up "a genuinely new idea"?

From all we know, Sotomayor is no Scalia. She is no Thurgood Marshall, either, or even a John Roberts, who is leading the court in his own direction.

Cue the music: What is the difference between an Associate Justice and a Chief Justice?

A million lawyers in America and something Jimmy Carter used to say comes to mind: Why not the best?

Cue the music:

• When was the last time "the best" legal mind (or let's say, one of the top 100) was nominated to the Supreme Court?

• When was the last time Richard Cohen cared?

I picture Cohen going home with the consolation prize....
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1. If you need the explanation, yes, I sarcastically exaggerated the number of columns.

2. If you replied, "Yes, he can - right there, on the pages of the New York Times," touché.

Due Process

In a completely unsurprising 5:4 "bad facts make bad law" case, the Supreme Court denied a defendant the right to obtain DNA evidence from the state that might disprove his involvement in a crime.

Mr. Osborne is not a sympathetic character. He was released after serving 14 years and after telling a parole board he was guilty of the rape. Not long after his release, he was charged with kidnapping, armed robbery and burglary for a home invasion in which he allegedly duct-taped and pistol-whipped four people.

The fact that he confessed and expressed remorse in order to obtain parole is anything but surprising - had he denied responsibility and insisted upon his innocence, he very likely would have been denied parole. But the rest of it? The justices can protest all they want about their goal being to uphold the law, but it's anything but unusual for a nasty set of facts to presage a narrowing of defendants' rights. People like Osborne don't inspire a lot of public sympathy, and very often inspire a response to the effect of, "Even if he didn't do that crime, he still deserves to be in prison."

Blogger commentary tends to lean toward viewing this as a manifestation of "tough on crime" conservatism. I see it a bit differently - as part of the tension between those who believe in "substantive due process" and those who believe that there's no such thing. In simple terms, procedural due process asks, "Did the court follow the rules"? If all the i's were dotted and t's crossed along the way, then the defendant's procedural due process rights were respected and the conviction can be deemed sound. Substantive due process asks, "Was the correct result achieved?" At the extreme end, this can mean ignoring all of the procedural issues and looking only at the outcome on a case-by-case basis. And some, like Justice Scalia, are skeptical of the notion that there's any constitutional right to substantive due process:

There is no text in the Constitution that you could reinterpret to create a right to abortion, for example. So you need something else. The something else is called the doctrine of "Substantive Due Process." Only lawyers can walk around talking about substantive process, in as much as it's a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But, lawyers talk this way all the time.

What substantive due process is is quite simple - the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It's a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.

Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way, the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.

Then we come to step three. Step three: that limitation is eliminated. Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don't think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process.

There's another way to look at this "division". You could create a system of courts that had clear, easy-to-follow rules that lead inexorably to conviction. Even acknowledging his acceptance that the innocent will sometimes be convicted and imprisoned, I doubt that even Scalia would regard such a system as satisfying the constitution's requirement of granting due process. So it's not simply about procedure, but whether the procedures are likely to lead to a just outcome. At the furthest end, you could argue that the fiercest advocates of substantive due process aren't so much arguing for courts to ignore procedural rules as they are arguing that procedure should not prevent claims of innocence, or block a court from reviewing evidence of actual innocence.

If we approach this as originalists, if Scalia were to ask the framers of the Constitution if they were comfortable with a sovereign who was in possession of evidence that would clearly and unambiguously establish a defendant's factual guilt or innocence, but would not let the defendant access that evidence, do you really think they would respond, "No, we believe the sovereign should be able to withhold the evidence"? If so, but you don't want that outcome, or if you spurn the notion that we should even try to discern what the framers of the Constitution intended as opposed to what they put into writing, we can instead approach the issue as textualists, and decide that "due process" means that the court follows procedures sufficient to satisfy Scalia, even though innocent people will be convicted, but that we should ignore the namby-pamby Justices who would argue that nobody should be incarcerated for life or executed because the state won't let them access evidence that might establish their innocence of the crimes for which they were convicted? How is Scalia's position better supported by the text than the position of those who say, "When evidence is available that could quickly and easily establish guilt or innocence, it should be made available for testing"?

Scalia's not drawing a line based upon the text of the Constitution - it's based upon his personal political beliefs and his personal views of judicial economy and expediency. That's not to say that those on the other side of the issue are any better supported by the text of the Constitution; but it's a fair response that some of the language of the constitution was deliberately left broad or vague - and it's more than fair to point out that the idea that you can always infer objective meaning from text (let alone a text that is centuries old and includes broad, vague, and general provisions) is absurd. Scalia's correct to argue that the Constitution should not be subject to interpretation that rises to the level of de facto amendment, but some of the language has to be applied based upon factual contexts unknown to and unknowable by those who wrote the Constitution. But let's be honest - the biggest difference between Scalia and those he criticizes is that he's more consistent in his application of his favored rules of interpretation - but in my view that's more by happenstance than by either the superiority of textualism to other forms of interpretation or Scalia's actual desire to adhere to a single approach to interpretation. Scalia rapidly departs from textualism (as in the case of sovereign immunity) when it would lead to an outcome inconsistent with his personal philosophy of the Constitution.

No Justice on the Supreme Court would argue that procedure is irrelevant, and all that matters is getting the correct outcome. They're all going to recognize boundaries where judicial economy calls for finality, even if additional proceedings might eventually lead to a different outcome. But some aren't as comfortable as Scalia with deference to state power, and to a state's decision that DNA evidence should not be tested to establish guilt or innocence, even though the techniques available for testing at the time of the original trial were weak or non-existent. A fair question for Scalia: What's the state's interest in denying DNA testing under these circumstances? Were he less sympathetic to state power, Scalia would direct his trademark caustic questions at a lawyer who argued that it would be unduly burdensome for the state to be mandated to permit DNA testing at the defendant's expense in all cases where such evidence existed and had not been adequately tested.

Were this a "cold case", the state would not hesitate to conduct DNA testing to try to match old evidence to a DNA database of known sex offenders. This is different because, rightly or wrongly, somebody has been convicted? So it's more important to the state to have "finality" than it is to assure itself that, in the event that the defendant is telling the truth, a dangerous rapist is off the streets? What if the state's concern is actually that it will look bad - incompetent, unjust, corrupt - when DNA evidence proves a wrongful conviction and somebody takes a look at the processes by which the wrong man ended in in prison? Is it that we are to assume that the state's motives are pure - and if so, where can I find that presumption in the text of the Constitution? If it's not in the text then, once again, what makes Scalia and the other textualists any better than those they criticize?

Scalia on Morality

According to Law.com, at a recent presentation "Justice Antonin Scalia blasted what he called "judge moralists" and the infusion of politics into judicial appointments":

Speaking before a packed auditorium at Chapman University in Orange, Calif., Scalia said he was saddened to see the Supreme Court deciding moral issues not addressed in the Constitution, such as access to birth control, desegregation and the use of public floggings and the pillory to punish criminals. He said such questions should be settled by Congress or state legislatures beholden to the people.

Okay, so he actually said "abortion, gay rights and the death penalty", but from a constitutional perspective what's the difference? (A lesson in the importance of framing your issues.)

I guess Scalia would interpret this language, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people", to mean that the people may have additional rights beyond those enumerated in the Constitution, but that there is no constitutional remedy for the violation of your rights unless they are specifically enumerated in the Constitution. Some might doubt that the Founding Fathers would agree with that interpretation, but who cares what they would have thought, right? We're all textualists now, so we get to reinvent the meaning of the text in accord with what we contend the words mean.

Scalia proceeded to defend his "immoralist" approach to constitutional interpretation, explaining that Supreme Court Justices should feel free to invent "constitutional" doctrine from whole cloth when it works against the common man, citing his own recent opinion expanding the doctrine of sovereign immunity - a concept completely absent from the Constitution. Oops - no, he didn't actually say that. I wonder why he forgot.

It's Dead, Jim

Justice Scalia on the Constitution:

"The Constitution is not a living organism," Scalia said.

And, I'm quite sure, he would insist that anybody who disagrees is being highly illogical. It's too bad that there aren't any Star Trek shows presently being produced, because Scalia would be an interesting guest star - something of an odd cross between Spock and Bones.

Differing Philosophies

The Michigan Supreme Court has, in recent years, been paring back the ability of lower courts to interpret statutes beyond constructing their plain text. Following Scalia's writings, for example, the Michigan Supreme Court has all but eliminated the ability of state trial and appellate courts to interpret statutes to avoid absurd results.

Our Supreme Court has since criticized and substantially limited, if not eviscerated, the "absurd result" rule, agreeing "with Justice Scalia's description of such attempts to divine unexpressed and nontextual legislative intent as 'nothing but an invitation to judicial lawmaking.'" People v McIntire, 461 Mich. 147, 156 n 2; 599 N.W.2d 102 (1999), quoting Scalia, A Matter of Interpretation: Federal Courts and the Law (New Jersey: Princeton University Press, 1997), p 21. Thus, whether the plain meaning of a statute may be avoided because its literal application results in an absurdity remains an open question in Michigan.

McGhee v Helsel, 262 Mich App 221, 226; 686 NW2d 6, (2004).

But while Scalia rules the day in Michigan, his philosophies are finding a less receptive audience among his peers. Today in Koons Buick Pontiac GMC, Inc. v. Nigh, the majority rejected the notion that the Court has no role in providing a reasonable interpretation to a carelessly drafted statute, leaving Scalia as a sole dissenter arguing for strict construction divorced from Congressional intent and predecessor statutes.

Some might view this as hair-splitting, with the majority of Justices arguing that where the language is unambiguous, it is inappropriate to correct a drafting error by Congress, but it was nonetheless appropriate to look to extrajudicial sources in the instant case because the statute was ambiguous. Scalia is much more textual in his legal interpretations, statutory or Constitutional - except... well, when he isn't. Like in his preference for the expansion of sovereign immunity, a concept strangely absent from the Constitution. But I guess "that's different". [Insert Emerson Quote Here?]

In any event, should Scalia ever tire of his brethren, I'm sure he can get a job clerking for Chief Justice Corrigan. ;-)

Scalia v. Sound Bite News Coverage

Justice Scalia has a long and well-known policy of not permitting his public speeches to be recorded. The reasons for this go beyond the controversy over his statements about the Pledge of Allegiance case, and his recusal from that case - the fact is, it is difficult for a Supreme Court Justice to speak on any subject of public interest without somehow suggesting how he might ultimately rule on a matter or controversy that may ultimately come before the Court.

The latest controversy surrounding Scalia involves the seizure of tape recordings made by members of the news media, of a speech Scalia made at a high school. Apparently the reporters who made the recordings were informed before a morning presentation that no tape recording was permitted, but no similar announcement was made prior to an afternoon presentation. (Now, due to the legalities involved, there is disagreement over whether the tapes were seized and erased, or whether the Marshal who approached the reporters simply made a polite request for the tapes.)

While I do think the manner of seizure was heavy-handed, and I am a strong advocate of a free press and of the distribution of this type of information, I have to wonder what the reporters were thinking. Were they naive of Scalia's long-standing policy on recording, such that even after the morning's announcement they honestly believed that he would not object to their recording his afternoon presentation? Or were they hoping that the failure to give a second announcement in advance of the afternoon presentation would allow them to avoid what they knew to be the case - that Scalia would not approve of their recording his presentation? I would have a lot more sympathy for the reporters if I thought this was an innocent mistake, but my suspicion is that they were trying to avoid Scalia's well-known policy on what some might call a "technicality".

It seems that all parties involved in this latest controversy could have acted more responsibly.

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Scalia's "Conflict"

In a small Michigan town, a local businessman brought a small claims suit against a man who had failed to pay for services rendered. The judge found for the businessman, then observed in regard to the defendant, "Do you have your checkbook with you? I have a feeling that if I let you walk out of this courtroom, the plaintiff is going to have a hard time getting you to pay this judgment." The defendant indicated that he had his checkbook. The judge instructed him to write a check satisfying his debt to the plaintiff. Then, as the parties were leaving the courtroom, the judge called out to the Plaintiff, "Hey Joe - do you want to go fishing this weekend?"

But, I guess that's okay.

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