The Volokh Conspiracy - Caplan on Judicial Independence:

Legal Affairs editor Lincoln Caplan had this article on judicial independence in Sunday's Washington Post "Outlook" section. I like Caplan's magazine, but I can't say the same for his essay.

The article is filled with contradictions. For instance, Caplan writes:

the legal right is increasingly divided between those who practice what the politicians preach and others keen to pursue their own agendas through the courts. Some, like Stanley Birch, adhere to traditional concepts of judicial restraint. Others, including Justices Antonin Scalia and Clarence Thomas, in the name of applying what they regard as the original intent of the Constitution's framers, have no compunction about aggressively striking down acts of Congress in ways that conservatives once called activist.

Now there are certainly divisions on the right between those who favor more or less aggressive judicial review. But Caplan's comparison does not work because his example of Judge Birch's "judicial restraint" is striking down a federal statute. If Caplan wants to distinguish the Birches from the Scalias and Thomases, he'll have to do better than that.

While Caplan, at times, seems to praise judicial restraint, he still wants judges who will strike down federal laws when necessary. In other words, Caplan has an implicit theory about when it is or is not appropriate to strike down statutes, but it remains unspoken. Instead he hides behind notions of "independence" and "impartiality."

Caplan defends the Democratic filibuster of judicial nominees to ensure the "impartiality" of judges. Yet how is it "impartial" to demand judicial nominees commit to certain positions on key issues, as some Senators have done? How is it "impartial" to impose litmus tests on key issues (e.g. abortion)?

There are many ways to describe the sorts of judges that Senate Democrats (and Caplan) would prefer, but "impartial" hardly seems the right word. Setting aside the proper approach to judicial review, striking down federal statutes supported by popular majorities on bases other than explicit constitutional text may well be justified in certain circumstances, but this would hardly be described as an "impartial" approach to judicial review. Whatever the merits of judicial deference to legislative decisions, this would seem to be less "partial" than aggressively striking down federal statutes.

Finally, Caplan says "the current Supreme Court has a right and a center, but no left." This is just silly. If it were the case we would see more decisions overturning Warren and Burger Court precedents and fewer cases that, like Lawrence and Roper, shift constitutional jurisprudence to the left. Any description of judicial ideology along these lines must account for the trajectory of the Court's doctrines, many of which, I would submit, still trend left. (I'll have more on this in a subsequent post.)

There's more, such as Caplan's strained treatment of the so-called "Constitution in Exile" movement, but I'll leave it at that. For further critiques of Caplan's essay, see these comments by Ramesh Ponnuru and Paul Mirengoff.

	[Juan Non-Volokh, May 10, 2005 at 7:47am] Trackbacks Caplan on Judicial Independence: Legal Affairs editor Lincoln Caplan had this article on judicial independence in Sunday's Washington Post "Outlook" section. I like Caplan's magazine, but I can't say the same for his essay. The article is filled with contradictions. For instance, Caplan writes: the legal right is increasingly divided between those who practice what the politicians preach and others keen to pursue their own agendas through the courts. Some, like Stanley Birch, adhere to traditional concepts of judicial restraint. Others, including Justices Antonin Scalia and Clarence Thomas, in the name of applying what they regard as the original intent of the Constitution's framers, have no compunction about aggressively striking down acts of Congress in ways that conservatives once called activist. Now there are certainly divisions on the right between those who favor more or less aggressive judicial review. But Caplan's comparison does not work because his example of Judge Birch's "judicial restraint" is striking down a federal statute. If Caplan wants to distinguish the Birches from the Scalias and Thomases, he'll have to do better than that. While Caplan, at times, seems to praise judicial restraint, he still wants judges who will strike down federal laws when necessary. In other words, Caplan has an implicit theory about when it is or is not appropriate to strike down statutes, but it remains unspoken. Instead he hides behind notions of "independence" and "impartiality." Caplan defends the Democratic filibuster of judicial nominees to ensure the "impartiality" of judges. Yet how is it "impartial" to demand judicial nominees commit to certain positions on key issues, as some Senators have done? How is it "impartial" to impose litmus tests on key issues (e.g. abortion)? There are many ways to describe the sorts of judges that Senate Democrats (and Caplan) would prefer, but "impartial" hardly seems the right word. Setting aside the proper approach to judicial review, striking down federal statutes supported by popular majorities on bases other than explicit constitutional text may well be justified in certain circumstances, but this would hardly be described as an "impartial" approach to judicial review. Whatever the merits of judicial deference to legislative decisions, this would seem to be less "partial" than aggressively striking down federal statutes. Finally, Caplan says "the current Supreme Court has a right and a center, but no left." This is just silly. If it were the case we would see more decisions overturning Warren and Burger Court precedents and fewer cases that, like Lawrence and Roper, shift constitutional jurisprudence to the left. Any description of judicial ideology along these lines must account for the trajectory of the Court's doctrines, many of which, I would submit, still trend left. (I'll have more on this in a subsequent post.) There's more, such as Caplan's strained treatment of the so-called "Constitution in Exile" movement, but I'll leave it at that. For further critiques of Caplan's essay, see these comments by Ramesh Ponnuru and Paul Mirengoff.