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Is Constitutional Law Hard? A Response to Hugh Hewitt:
Hugh Hewitt argues that it's wrong to question Harriett Miers' abilities and experience because constitutional law just isn't that hard:
  The idea that Miers cannot go toe to toe with the giant brains on the Supreme Court is a very odd argument, on a number of fronts. It assumes that the business of judging is very difficult and that only scholars and intellectuals are suited to the task[.]
  . . .
  [T]he most important quality in a justice, from Bork's published point of view, would be humility in the face of majoritarian choices consistent with the federalist framework.
  . . .
  The other argument is a subdivision of the "not smart enough" argument, and it suggests that even though she is smart, ConLaw played at its highest level requires a lifetime of practice, either in the classroom, the federal courts, or at least as an appellate litigator like the new chief justice.
  From this I especially dissent. Simply put: It isn't that hard. It is wrong to argue that it is so. It is anti-democratic to argue that it is so. The Left wants you to believe it is so, and the center-right should resist that.
  . . .
  ConLaw is a just another set of rules, vastly lengthier than those of golf or baseball, and subject to much more frequent changes, which is why they appear complicated to many observors. Further, some of our justices have spent quite a lot of paper and ink arguing absurd theories that tell us "A" is not "A," with the intent of persuading not the people but other judges of such propositions that the Framers and their friends . . . intended to ban "under God" from the Pledge.
  I was puzzled to read this coming from Hugh Hewitt, as it is so dramatically different from what Hewitt was saying the only time he and I have spoken about constitutional law. Last March, I appeared on Hewitt's radio show to discuss the Terri Schaivo case, and in particular whether federal courts should overturn the state court decisions ordering the withdrawal of Terri Schiavo's feeding tube. At the time, Hewitt was not saying constitutional law was easy. Nor was he invoking the intent of the Framers, or the need for judicial humility and deference to majoritarian wishes. Instead, Hewitt seemed quite committed to inventing a new theory of constitutional law that would empower federal courts to trump the states and order Schiavo's feeding tube reinserted. At one point, he even complained about the failure of the courts to be "creative" in their reading of the Constitution.

  Here's an excerpt from the transcript of the show (HH is Hugh Hewitt, OK is me):
  HH: Professor Kerr, you challenged me to come up with the argument [for why Terri Schiavo's constitutional rights were violated by the state court process], so I spent some time this morning before class, actually, thinking what I would advise the family. And I think the crux of this is that the people who ought to be her guardians, her parents are not because her husband is by operation of law. And that there is obvious and admitted evidence he's living with another woman, by whom he's had two children. Absolutely conclusive proof of estrangement in 50 divorce courts across the United States. In every state, he should not be her guardian. And any state law that elevates her to that violates our sense of due process in the sense that the Cleburne decision violated our sense of due process in not allowing a school for special needs children, or a home for special needs children to open across the street from a school because they feared taunting. Your response to that argument.
  OK: Well, it's an interesting theory. I'm trying to think of how it's supported by existing law.
  HH: Cleburne. [Ed. — Hugh is referring to Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)]
  OK: Well Cleburne essentially held it was irrational to draw a distinction in that case. And here, I don't think you can say it's irrational to say that a husband should not [sic] be responsible for the care of a wife.
  HH: No, I'm saying it's irrational to allow an estranged husband, who's been living with another woman and has two children by her, to announce the decision in opposition to her parent's decision, in a case like this. . . . [I]s that not irrational?
  Later in the discussion, Hugh expressed frustration that the same courts that had invented all sorts of new constitutional rights were failing to be creative with the Constitution in the Schiavo case:
HH: . . . The courts here, have been in recent years, both at the state and federal level, very aggressive at inventing things. Borrowing from foreign law, inventing a right for same sex marriage, etc. Why are they so reluctant on the federal side to be creative, or at least be accommodating of clearly expressed Congressional desire for close scrutiny?
   Now, I don't mean to pick on Hugh; he seems like a super nice guy, and he is very smart. But I have no idea how to square the Hugh Hewitt of today with the Hugh Hewitt of the Schiavo period. As best I can tell, they are diametrically opposite in every respect. And that's exactly why constitutional law is a lot harder that the current version of Hugh Hewitt will admit. It's easy to repeat platitudes about how a judge won't "legislate from the bench" or will just "follow the Constitution." But the hard part is sticking with those principles when they no longer comport with the results you really really want to reach.

  To be fair, I agree with Hugh that Supreme Court Justices don't need to be academic super stars. But they do need to be reasonably self-aware. And my guess is that self-awareness tends to come most often from the experience of testing and evaluating arguments again and again, whether as a judge or in some other forum.
Robert Schwartz (mail):
I have over the course of a 30 year legal career learned a number of areas of law, most of them stupefyingly dull. Trust me, you don't want to know anything about consumer credit law.

Loath be I to tread on anyone's hard won expertise, but I have found that after a few moths of working at it, they all start to come together.

Of course Harriet would not be responsible for driving the bus by herself. She can sit co-pilot. All she has to do is agree with Scalia and Thomas, and if they split take the side Roberts has voted for.

The real issue is whether Harriet Souter is going to be influenced by her brother and that old woman who looks like the wicked witch of the west. If she is. I don't want her.
10.10.2005 4:02am
Perseus (mail):
1) Precisely because Con Law is a set of rules vastly lengthier and more complex than those of golf or baseball that it demands "long and laborious study to acquire a competent knowledge of them. Hence it is that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the station of judges" (Fed. 78), especially justices of the Supreme Court. And Hewitt seems to be attacking a straw man when he says that critics on the Right are claiming that only way to gain such skill is "either in the classroom, the federal courts, or at least as an appellate litigator." There are plenty of positions in the other branches of government where a person could gain such skill. It's just that Miers doesn't seem to have held those sorts of positions.

2) Wasn't the Supreme Court acting with utmost "humility in the face of majoritarian choices consistent with the federalist framework" in Kelo v. New London? After all, why should the Court have second-guessed local officials (who represent the majority) so long as they were paying just compensation?
10.10.2005 5:20am
Alexandra von Maltzan (mail) (www):
"But the hard part is sticking with those principles when they no longer comport with the results you really want to reach"

Orin, I don't understand what you mean by the "results you really want to reach". The result should be based on the letter of the law, and therefore any 'personal' opinions or 'results desired to be reached' are surely irrelevant. If Miers is indeed a strict constructionist, as the President assures us, or an originalist as I believe her to be, she will not be stumbling over that dilemma, nor does she need Scalia to hold her hand.

Equally to suggest that she is not "reasonably self-aware", in the context you refer to, must mean that the same goes for Robert Jackson who never completed law school or served as a judge. It was Justice Jackson who picked William Rehnquist as his law clerk. You may want to make note of the biographic links and note that William Rehnquist was not a judge either.

And Robert, to suggest that she simply 'co-pilots' along with who you obviously consider to be the brilliant originalists, is to put it mildly very condescending. I don't believe the President's list of choices, which he has already more than proved to be visionary, with the stealth and brilliant Chief Justice, warrants such a derogatory remark. Nor does Miers quite frankly. I am simply choosing to ignore the 'Souter' part, but as for the WWoW, unfortunately I don't know who you mean, other than that you are referring to her mother whom she has taken care of most of her life. I would like to say that your comments are bordering on sexist but I do not wish to do you an injustice?

Finally, although it is very tempting, (being myself what Ed Morrissey this weekend called, a soldier in the 'Loyalist Army'), I will refrain form defending Hugh Hewitt, as I am sure he can do that far better himself.

I wrote a post about these very issues on Sunday The Harriet Miers 'Loyalist Army'
10.10.2005 5:36am
talboito (mail) (www):
It is far from impossible to square the two Hewitts. In one case Hewitt was arguing for the President's position. In the other case Hewitt was arguing for the President's position.

I imagine Hewitt lives a life of worry. His rubber stamp political positioning could easily be outsourced or mechanized. Some inventor need only hook the input to the output and press the button.
10.10.2005 5:56am
Doc Rampage (mail) (www):
Well, I'm no Constitutional scholar, but I don't see any inconsistency in the examples you gave. In one case he said that Consititutional law is not hard. In another he was arguing largely about state law and the propriety of letting a man make life and death decisions for his estranged wife over the objections of her parents (something that I believe in more sober times, nearly everyone would agree is not acceptable).

Furthermore, it's hard to see where making an argument about the Consitution is inconsistent with the statement that Constitutional law is not that complex.

Also, I found your account of Hewitt's argument in the second example to be overly creative. You say, for example that he didn't care about majoritarian wishes, yet it was a large part of his point that the courts should have worked a bit harder to defer to the wishes of Congress.

And finally, if Hewitt was calling for more creativity on the part of the courts, he did so in the context of the enormous creativity that the courts have shown in opposition to his views. I think the primary force of his point was not that the courts should have done more to save Terri Schiavo, as that the courts were willing to exercise considerable creativity in killing Terri, but none at all in saving her.

If the Florida courts had not ruled badly in previous decisions, there would have been no need for the Federal courts to intervene, and I don't think it is at all fair to take Hewitt's call for turnabout-is-fair-play as a general philosophy of legal interpretation.
10.10.2005 6:41am
Medis:
Robert,

But she doesn't get a few months of concentrated study to learn the law in each new area as those issues arise in the cases considered by the Court.

Indeed, over at confirmthem they were discussing this passage from Federalist 78, where Hamilton argues for life-time tenure:

"There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges."

Hamilton's points remain very good one. One of his points is basically that in a complex world, there will be an ever-increasing "variety of controversies" to which laws must be applied, and in the course of applying the law to these different cases even superficially simple rules (such as the ones in the Constitution) will create complex sets of precedents. Similarly, statutory law will become ever more complicated as it deals with this variety of factual situations. Accordingly, knowledge of the law will require long experience and study of the law.

And Hamilton argues that it is precisely this knowledge of the law which binds judges and avoids their exercise of "arbitrary discretion." That insight connects the two major conservative complaints about Miers: that she is unqualified and that they cannot be sure she will not exercise "arbitrary discretion" when deciding cases.

Finally, it should be noted that this is not an "anti-democratic" argument, although it fits into a more complex picture of democracy than the one held by those who say judges are inherently anti-democratic because they are not elected. Rather, Hamilton describes the role of judges as providing a check, on behalf of the people, against the excesses of the people's elected representatives. Hamilton goes on to discuss what we would today call judicial activism, and argues that it is precisely in order to prevent the mere substitution of the judge's will for the will of the legislators that judges should be given life-time tenure.
10.10.2005 7:10am
Anon7 (mail):
I've always thought the GOP rhetoric about "judicial restraint" and "interpreting, not legislating" was empty, and the past year or so has vividly proved it. What it's really about is getting conservative results by any means necessary. Most Republicans I think would abandon "judicial restraint" in a second if they felt they could advance their conservative agendas through broad judicial activism.
10.10.2005 7:31am
chaoticgoodnik (www):
Although I frequently sense (based on my reaction to his writings here) that Prof. Kerr and I share different viewpoints on many things, I have to say that reading the examples he quotes strongly suggests to me that Hewitt is a man who desires to bend the rules into "creative" little pretzel shapes to get what he wants.
10.10.2005 8:55am
mgarbowski:
What is depressing is that Professor Kerr does not realize he is proving Hewitt's point. Hugh's point months ago was that to anyone but law professsors, judges, and post-modern libertines, a man who fathers two children by another woman after his wife gets sick has abandoned his wife, and loses the right to make life or death decisions for her. That is exactly consistent with his posititon today, where he criticizes the activities of "some of our justices [who] have spent quite a lot of paper and ink arguing absurd theories that tell us 'A' is not 'A.'" Professor Kerr, who apaparently believes that a man who fathers two children by another woman has not abandoned his wife, is definitely in the "A" is not "A" camp. Doc Rampage is correct. This is not a con law issue. It is about judges who had to get overly creative to rule that a man who fathered two children by another woman did not abandon his wife under state law.

This issue, by the way, was the most overlooked point of disagreement in the Schiavo matter, especially by the "kill her" side. The death side in the Schiavo matter apparently thinks marriage does not require fidelity, the life side disagreed. To the death side, the phrase "in sickness and in health," means "when you get sick, I take another spouse and kill you," while the life side think it means caring for the sick spouse.

What was most infuriating was when the death side acused the other of undermining our belief in marriage because we refused to grant a husband who abandoned his wofe the right to kill her. Andrew Sullivan was probably the worst offender on this point.
10.10.2005 9:51am
james23 (mail):
I don't believe it is possible to square Hewitt's posts pre-nomination with his posts of the past week. He is a Party guy above all else, and so the best reason to read him is for insight into what the WH may think of a particular issue. I am guessing that he received very different signals from the WH before the nomination . You do have to give him credit for executing a complete 180 and acting as if nothing happened. I'd love to have him on my side if I were in a jam.
10.10.2005 9:57am
Aultimer:
Hewitt's puddle-deep thinking on just these two issues is ample evidence that Con Law IS hard. It only seems simple in the cases where one's claimed constitutional theory supports her desired result.

Mgarbowski - what's the bright line when a spouse is no longer the preferred guardian? Cohabitation with another? Ongoing infidelity? Infidelity in the past? Thoughts of infidelity? What criteria must the parents meet - does it matter if they were abusive? Do you trust congress to set a rule that considers all the possibilities?
10.10.2005 10:17am
RJL (mail):
Personally, I've always found the rules of golf especially difficult to remember.
10.10.2005 10:26am
Anderson (mail) (www):
Dear Professor Kerr:

The reason for the discrepancy that you've noticed is this: Hugh Hewitt is a hack.

I submit that no other explanation so readily fits the available evidence.

Sincerely,
Anderson
10.10.2005 10:39am
Guest2 (mail):
As a corporate lawyer, I've gotta say that I found con law to be one of the harder subjects in law school and I find it one of the harder areas in practice. The issues seem to me to be very fact-intensive, such that detailed and systematic knowledge of prior cases (facts, procedural posture, arguments made by the parties, arguments made and rejected in concurring and dissenting opinions, dicta, footnotes, etc., as opposed to just the various holdings) is necessary for one to make any kind of robust analysis.

Moreover, since so much of what SCOTUS decides is where "the rules run out," a justice (if she's not to be blown hither and yon) needs a developed philosophy of judging. And by "philosophy of judging," I don't mean a strong sense of desired policy outcomes. I realize that it's been fashionable for almost a century to say that judges are merely disguised legislators, but in truth judges -- even Supreme Court justices -- should and largely do merely take policy into account when applying the law, whereas legislators merely take the law into account when forming policy. So, while a strong sense of desired policy outcomes is not necessarily a bad thing for a justice, it's much more important (pace, Posner) for a justice to have a strong sense of what her role is, what the Court's role is, what the rule of law means in a constitutional republic, how state and federal jurisdictions intersect, and so on. This is not something that one can gain from one's clerks or colleagues, or that one can bone up on as issues arise.

(Whether HM herself has this or not, I think it's too soon to tell.)
10.10.2005 10:46am
Bjartur:
It always helps to ask "compared to what" when discussing these kinds of questions. I'd say that conlaw is fairly easy compared to organic chemistry, monetary policy, or even tax law. That doesn't mean that smart people will all get to the right answer, just that the concepts aren't that tough. My concern with (and at this point opposition to) HM is that there are very different types of conservatives, and we don't know which type she is. If I had to guess, my guess would be that she is the wrong kind of conservative from my perspective: overly deferrential to the government.
10.10.2005 11:01am
Goober (mail):
That's what I love about being a cynical leftist convinced that most or all conservatives are intellectually dishonest and entirely self-serving: I'm never really surprised by any of this.
10.10.2005 11:14am
Eliza (mail):
I've always thought the GOP rhetoric about "judicial restraint" and "interpreting, not legislating" was empty…

GOP rhetoric is not at issue. Fortunately, the feeble-minded gasbags who infest our party are not usually in a position to impose their illogic and moral confusion on the Constitution.

The Supreme Court is what is at issue here. An originalist or, if one must, "judicial conservative," believes the Court should interpret the terms of the Constitution in a way that preserves their originally intended meaning.

Originalism favors Republicans because both the Constitution and conservative political/economic philosophy are rooted in the principles of classical liberalism, as opposed to left-liberalism, a failed 20th century ideology dedicated to the unconstitutional aggrandizement of government power at the expense of individual liberty (Kelo).

But the Republican platform is still frequently at odds with what the Constitution allows: look at Thomas's dissents. (Thomas is origionalism's truest advocate on the Court; Scalia is a bit of a squish, though brilliant)

What worries me about this nomination is that Miers seems like a social and religious conservative who gives no indication of being grounded in an originalist philosophy: precisely the type of judge who would "abandon 'judicial restraint' in a second if they felt they could advance their conservative agendas through broad judicial activism."--especially where the WOT is concerned.

Who would you rather have on the Court--Clarence Thomas or George W. Bush?
10.10.2005 11:24am
Aultimer:
Bjartur - organic chem and tax law are difficult in an entirely different way than is Con Law. I don't know if it's a left/right brain difference or science/humanities orientation, but the fields you mention are different in that they have "right" answers and repeatable/testable methods.

There are many who find tax law quite simple that are baffled by con law, and vice versa. Justices should have a facility with both kinds of subject matter.
10.10.2005 11:34am
Anderson (mail) (www):
That's what I love about being a cynical leftist convinced that most or all conservatives are intellectually dishonest and entirely self-serving: I'm never really surprised by any of this.

Unfair, Goober, unless you mean the kind of "intellectual dishonesty" that gets most of us, liberals or conservatives, through the day. The VC's posters &commenters typically display a high percentage of thoughful conservatives, which is why I read it.

I think a big problem for conservatives, and for the Republicans, is that whatever their ideas in theory, in practice they've been more anti-liberal and anti-Democrat than having any coherent positive content. "Well, yes, Bush leaves much to be desired ... but Kerry! my God!"

So now that Bush is home free in his 2d term, with a Republican Congress, and the Dem Menace is in abatement, there's leisure time to notice that--my God!--Bush's positive policies and ideas (I use the latter word loosely) are not those of a great many conservatives, and particularly not those of the intellectually honest conservatives.

What we may see in the next 3 years is a fight for the soul of the Republican Party: the heirs of Reagan, or of DeLay? The Dems have plenty of soul-searching to do as well, but I really don't know what it will take for them to get their sh*t together. They are more likely to win in 2008 because the Repubs fail even more conspicuously, than because of any positive program of their own. Which, as just detailed, carries its own problems.

(Gracious, where did all this come from? Back to drafting discovery requests ....)
10.10.2005 11:44am
CTW (mail):
as a non-lawyer I'm going out on a limb here, but doesn't it say something about HH's grasp of "not that hard" Con Law that he doesn't seem to distinguish between "irrational" in the sense of rational basis scrutiny and in its common (ie, non-legalese) usage sense?

"HH is Hugh Hewitt, OK is me" - or put another way, "I'm OK, HH is not".
10.10.2005 11:56am
Gordon (mail):
So Hugh Hewitt is a stinking hypocrite?

Knock me over with a feather!
10.10.2005 12:17pm
B. B. (mail):
"Thomas is origionalism's truest advocate on the Court; Scalia is a bit of a squish, though brilliant"

In other words, Scalia is an activist judge, dressing up results-based opinions in the clothing of a judicial philosophy. However, he's 'their' activist judge so you'll never hear the right complain about him.

This is the only reason for the right's complaint about activist judges, by and large (realizing some really do believe in strict construction, results be damned, e.g. Raich) -- when the activism is in their favor, they really don't have a problem with it. Hewitt is just another example of this phenomenon.
10.10.2005 12:38pm
Dave Hardy (mail) (www):
If it's all that easy, I wonder why I spent the weekend hitting the books, researching two First Amendment cases that I'm bringing. I mean, there's tons of Supreme Court opinions there, so the rules must be utterly clear.
10.10.2005 12:40pm
kdonovan:
The Con_Law is hard argument strikes me as scholasticism - what is needed is a Reformation which goes back to the original sources and ignores all the encrustations which have been found to be emanating from the penumbra of the Constitution.
10.10.2005 12:57pm
nclitigator (mail):
Con Law really isn't that hard (relatively speaking). You would think it is rocket science because the con law casebooks are chock full of deep analysis and complex theories. My mind is full of hazy memories from law school of baloney like Carolene Products fn. 4 and quotes from the Federalist Papers.

Con Law is a lot more sexy nowadays than say, torts, so academics pour their hearts and souls into it. The top law reviews are way too heavy on con law, but they are catering to their limited audience. I think far too much talent and energy is wasted on con law. Some of these super-talents should have been engineers out inventing a perpetual motion machine instead of dissecting the progeny of Griswold. Or archaeologists digging up lost greek classics in lieu of hypothesizing about the meaning of Lopez.

So, if Miers pulls out the Emanuels on Con Law, she'll be fine.
10.10.2005 12:59pm
alkali (mail) (www):
Dave Hardy writes:

If it's all that easy, I wonder why I spent the weekend hitting the books, researching two First Amendment cases that I'm bringing. I mean, there's tons of Supreme Court opinions there, so the rules must be utterly clear.

There's a difference between difficult and time-consuming. Suppose I want an architect to design a bog-standard garage for my house. That's not rocket science, but it would surely take a day or two of work to do build plans, regardless of whether I hire Frank Gehry or an associate in a local architectural firm.
10.10.2005 1:13pm
TL:
Professor Kerr, it seems like the example above is inapposite. You seem to be saying that HH is inconsistent in his application of originalist principles.

The Schiavo case elicited knee-jerk reactions by members of the GOP (admittedly, some silly things were said). However, I don't see the request for a court to apply a totality of circumstances analysis to that case very comparable to denying originalist principles of constitutional analysis. The point that HH makes about Michael Schiavo living apart from Terri seems to be good in the sense that a judge could have considered it in the custodial decision, which is where all the trouble started.

In baseball, the tie goes to the runner when a close force-out throw goes to first base. When a family situation is involved and many interests abound, who gets the benefit of a tie there? Many conservatives wished it had been Terri's family because of the unusual facts in the case. Nothing more, nothing less. This is not unfaithful to the Constitution, which fails to set forth elaborate rules of play for this type of close call.
10.10.2005 1:29pm
Wince and Nod (mail) (www):
Hugh Hewitt's position is pretty easy to understand, if you are willing to listen.
My critique of the federal courts' response last spring was they simply ignored a clear Congressional mandate, without even taking the time to opine on that mandate's constitutional status. Kerr and I argued over what that status might be, but the obvious fact that it was ignored was the primary focus of my critique.
He points out that Congress gave the Courts a clear directive, which they ignored without bothering to reply to it. That's the kind of great Constitutional reasoning we need, silence. Did the Courts bother to utter the phrase "separation of powers"? Did they opine that substantive due process did not govern whether or not a man cohabiting with another woman and fathering her children had abandoned her under the state statute and therefore was no longer her guardian, with no standing in court? Anything? Anything at all?

Wanting a court to explain itself would seem to be a position that liberals and conservatives could hold in common. Imagine my surprise. Apparently only hypocritical hacks want Courts to explain themselves.

Yours,
Wince, Just Another Hypocritical Hack
10.10.2005 1:40pm
Robert Schwartz (mail):
Alexandra:
"And Robert, to suggest that she simply 'co-pilots' along with who you obviously consider to be the brilliant originalists, is to put it mildly very condescending."

OK, it is condescending, but it is true. She will be one of nine, and like a resident on a surgical team, she can spend a couple of years watching and holding retractors while the seniors operate.

"I don't believe the President's list of choices, which he has already more than proved to be visionary, with the stealth and brilliant Chief Justice, warrants such a derogatory remark."

I am not sure what you mean by this. This is the second of two picks, and he is batting .500. Batting .500 is not hard for one day. Batting .300 for a career is really hard.

"Nor does Miers quite frankly. I am simply choosing to ignore the 'Souter' part, but as for the WWoW, unfortunately I don't know who you mean, other than that you are referring to her mother whom she has taken care of most of her life. I would like to say that your comments are bordering on sexist but I do not wish to do you an injustice?"

Sticks and stones. I have been called sexist by my wife, my daughters and my mother, so you wouldn't be the first, and you wouldn't be wrong. But you didn't get my reference. I think that the female SCOTUS justice who has not tendered her resignation bears a remarkable resemblance to Margaret Hamilton in her most famous role. I have nothing against taking care of one's mother, Lord knows, I spend a lot of my time taking care of mine, but it is one more way in which Harriet is just like David Souter.

Medis: "But she doesn't get a few months of concentrated study to learn the law in each new area as those issues arise in the cases considered by the Court."

Neither does any other lawyer. I have learned new areas by working on them, often with others who do know what they are doing. Harriet Souter will have the opportunity to work with Scalia, Thomas and Sasha Volok. Further, being a SCOTUS justice is not exactly like a life at hard labor. They only handle 80 cases a year, the majority of which are not constitutional in nature, and they have three month summer vacation.

Anon7: "I've always thought the GOP rhetoric about "judicial restraint" and "interpreting, not legislating" was empty"

You haven't been listening. If we conservatives were only concerned about agenda, we would accept the President's assurances about Ms. Souter's loyalty and move on. What we are concerned about is faithfulness to the Constitution as a dead piece of paper. We wanted another Thomas and we have been offered another Souter. This really is an argument over constitutional principle.

Aultimer: "organic chem and tax law are difficult in an entirely different way than is Con Law. I don't know if it's a left/right brain difference or science/humanities orientation, but the fields you mention are different in that they have "right" answers and repeatable/testable methods. There are many who find tax law quite simple that are baffled by con law, and vice versa. Justices should have a facility with both kinds of subject matter."

Haven't done a lot of tax law have you? There are no right answers in tax law, there are only return positions. Further, I have known a lot of tax lawyers in my time, but I have yet to meet an experienced tax lawyer who went around saying: "tax law is easy, but I just don't get constitutional law." I know a something about both areas, and I don't think that either one of them is particularly more difficult than the other.
10.10.2005 1:43pm
von (mail) (www):
Well, no one can complain that Hugh Hewitt is inconsistent: It's just that consistency of result, not method, that's most of interest to him.
10.10.2005 1:49pm
Greedy Clerk (mail):
Breaking news: Hugh Hewitt is a partisan hack. In other news this morning, the sky is blue.
10.10.2005 1:50pm
Greedy Clerk (mail):
Mgarbawski writes:"Hugh's point months ago was that to anyone but law professsors, judges, and post-modern libertines, a man who fathers two children by another woman after his wife gets sick has abandoned his wife, and loses the right to make life or death decisions for her."

Then I guess about 80 percent of the American public are "law professsors, judges, and post-modern libertines" considering that that percentage was opposed to Congress and the Bush Administration's actions.
10.10.2005 1:53pm
Bruce Hayden (mail) (www):
I find it interesting that all these Con law types think that that knowledge of that subject is by, and away, the most important requirement of a Supreme Court Justice. That is not all that they do, nor, maybe even the hardest.

I was just looking at Festo v. Shoketsu which tweaked the patent law Doctrine of Equivalents. This case did't involve any really heavy duty Constitutional Law findings - yes, Congress can authorize the patent laws. BFD. That has been well settled for 200 or so years and so wasn't even adressed. But what it did involve was at the heart of patent law, and, IMHO, the Supreme Court did an amazingly good job here, given their previous forays into this area.

Patent law is one of those areas in which a lot of people throw up their hands with when first introduced to it. Yet, all of a sudden, one day, you say to yourself, it is trivial. Well, never quite, but it does end up fitting together. Similarly I think with, for example, tax law, as mentioned above.

My point is that a lot of what the Supreme Court ends up doing is statutory interpretation - in arcane areas. In-depth knowledge of Con Law isn't going to help there one whit, and maybe might even hurt, given that that expertise, esp. in the minds of Con Law profs, has often been acquired at the expense of most of the rest of the law.

So, the argument seems to be either that this sort of case is really irrelevant, or that the Justices can muddle through them by use of their inate brilliance. The answer to the first point is that this sort of case is extremely important to those of us practicing in that area, and has a far greater economic impact on the country than many, if not most, Con Law opinions.

As to the second alternative, I would suggest that someone who has spent their career coming up to speed in arcane areas in general practice will be better able to do so in a new area than someone who has spent their entire career in one small area of the law, and esp. someone who really hasn't had to put his career on the line when s/he opines (i.e. hasn't had his/her career at stake when taking an advocative position and backing it up).

I should also note that Festo was unanimous, which may imply that not all of the Justices really did their homework, relying instead on the other Justices and all the law clerks - oh and the myriad of mostly self-serving amici briefs provided the Court in this case.
10.10.2005 1:54pm
Goober (mail):
Anderson---

Nice that you can believe that. But I find it far too ironic that between my original comment and your response I find yet another argument that Kelo is an activist opinion.

I'm sorry, I've not seen anything from the readers of this blog (nor especially from the writers, Profs. Kerr and Volokh naturally to be excepted) to shake me of my superstition that conservatives will believe any talking point, so long as Rush Limbaugh or Instapundit are chanting that it's only mainstream media bias that would make it seem any other way.

Oh, and of course Choset. That guy rules.
10.10.2005 1:56pm
Per Son:
Two points:

1. Why are Americans so damn anti-Intellectual? Look at the founding fathers. They were, for the most part, intellectuals. Why has this changed? I hear some people say that they will vote for the guy that they would most like to have a beer with. Well, those folks are morons. I would like to have a beer with the guy I would most like to have a beer.

2. Since when is being a Supreme Court Justice about just interpreting the Constitution? Ever heard of cases that interpret statutes? You know, those things in the United States Code!
10.10.2005 2:11pm
Wince and Nod (mail) (www):
Goober,

You catch more flies with honey than with vinegar.

Myself, I don't understand how a living document protects our rights, subjecting us as it does to tyranny of the judiciary. If you believe in a living document you aren't a hypocrite, or unethical, or uninformed or foolish. I've found that those liberals who disagree with me on this (or generally any) subject are generally honest, ethical, informed and smart. (Infuriating, sure, but that's my anger management problem, not theirs. Conservatives used to infuriate me whan I was a liberal.)

But they've never told me what limitations a living Constitution places on judicial power. Assuming you do believe that a living document best protects our rights, can you explain these limitations to me?

Yours,
Wince
10.10.2005 2:22pm
Kevin Baker (mail) (www):
Alexandra wrote:
"But the hard part is sticking with those principles when they no longer comport with the results you really want to reach"

Orin, I don't understand what you mean by the "results you really want to reach". The result should be based on the letter of the law, and therefore any 'personal' opinions or 'results desired to be reached' are surely irrelevant.
I think Orin was paraphrasing Alex Kozinski's Silveira dissent, in which he said:
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that "speech, or . . . the press" also means the Internet...and that "persons, houses, papers, and effects" also means public telephone booths....When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences.
That's the temptation placed before Federal Appeals and Supreme Court Justices - the power to "constitutionalize" their personal preferences. Take Kelo, for example. The two precedent-setting cases, Berman and Midkiff were, to my admittedly unsophisticated eyes, violations of the "public use" clause. You might be able to argue otherwise in Berman, but not in Midkiff - and Midkiff was a unanimous decision.

That was the Supreme Court abandoning the difficult reality of the Constitution to reach a decision that comported well with their notion of good social policy.

Same for Kelo. And that's what (I think) Orin meant.
10.10.2005 2:27pm
Aultimer:

Wince and Nod - Myself, I don't understand how a living document protects our rights, subjecting us as it does to tyranny of the judiciary.

It's a choice between tyranny of the judiciary or tyranny of the most influential upon Congress. If you're in an unpopular and poorly funded minority (the two levers of Congressional influence being popularity anf money), the choice of groups to protect your rights is clear.
10.10.2005 2:40pm
Dave Hardy (mail) (www):
I've reconsidered. These first amendment issues (relating to primary elections) are difficult for me, and easy for the Supreme Court, for precisely the same reason, viz, the Supremes just do whatever the heck they please. It requires no great mind to do whatever the heck you please. The intellectual labor is in trying to turn a bunch of such acts into some consistent theory that you can sell to a trial court, to assess a situation in which the Supreme Court hasn't yet had a chance to do what in the heck it pleases.
10.10.2005 2:59pm
von (mail) (www):
I was just looking at Festo v. Shoketsu which tweaked the patent law Doctrine of Equivalents. This case did't involve any really heavy duty Constitutional Law findings - yes, Congress can authorize the patent laws. BFD. That has been well settled for 200 or so years and so wasn't even adressed. But what it did involve was at the heart of patent law, and, IMHO, the Supreme Court did an amazingly good job here, given their previous forays into this area.


Three thoughts:

1. Festo is so good because Kennedy's opinion liberally borrows from the seminal patent claim construction decision Autogiro Co. of Am. v. United States, 384 F.2d 391 (Ct. Cl. 1967). Indeed, the classic line about how patent claims are difficult to interpret because the inventor always outruns the dictionary -- e.g., "things are not made for words, but words for things" [and thus the novel discovery precedes the language used in the patent to describe it] -- is a direct quote from Autogiro.

2. Take note that there are those of us -- admittedly, a tiny minority -- who continue to think that Justice Black got it right in his dissent in Graver Tank and that there is no such thing as the Doctrine of Equivalents after the 1952 Patent Act. We odd ducks continue to think that it's conceptually impossible to square 35 USC 112's requirement that "[t]he [patent] specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention" (empahsis added) with the Doctrine of Equivalents. By definition, the Doctrine of Equivalents allows a patentee to claim (as an "equivalent") subject matter that is not "particularly point[ed] out" or "distinctly claim[ed]."

3. Of course, point #2 is not (and likely never will be) the law. And so I continue on my lonely way.
10.10.2005 3:06pm
Wince and Nod (mail) (www):
Aultimer,

What makes you think that judges protect minorities? They were pretty hard on African-Americans for over one-hundred fifty years, even with the Fourteenth being passed specifically to protect African-Americans. They've been pretty hard lately on the minority of Americans who want pure Biblical creationism taught to their children, the minority of Americans who want to practice polygamy, and the minority of Americans who want to use marijuana for medical purposes. I can think of scads of minorities who the courts don't bother to protect.

Yours,
Wince
10.10.2005 3:07pm
von (mail) (www):
FYI, my prior post's e.g. should be an i.e. QED.
10.10.2005 3:10pm
Kazinski:
Constitutional Law is extremely hard and complicated. Just like Astrology. I've got a lot of respect for constitutional scholars, but maybe the problem is that they are too smart, and they overly complicate what should be a simpler field. Not that it has to be that way, Scalia is a pretty smart guy, yet his constitution seems to be a lot less complcated than Breyer's. Not necessisarily a better constitution, lacking necessities such as the unenumerated rights of the Zimbabwe Constitution.
10.10.2005 3:43pm
Alexandra von Maltzan (mail) (www):
Kevin,

I understand your point, although I always find it very unhelpful if the author himself does not respond, having engaged everyone in the first place.

"That's the temptation placed before Federal Appeals and Supreme Court Justices - the power to "constitutionalize" their personal preferences"

From a moral norm standpoint whether modern or traditional, with or without Kozinski's "senile relatives", this is quite correct, however Judges may not look to their own moral values in their decision making process, period. Their personal views cannot have any bearing on how they vote.

The evaluation of moral norms whether they belong to the modern or traditional view you are referring to is a very slippery slope down to the "Constitution being a living document": "As guardians of the Constitution, we must be consistent in interpreting its provisions".

Justice Scalia sums up the reality of the decision that ought to be facing a Supreme Court Judge, when he refers to his own inability to serve on the bench if he thought the death penalty were immoral:

"... while my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all."

But then we are talking to an originalist, and I believe Miers, despite the President referring to her as a strict constructionist, is one, and the path to the famous "slippery slope" is most probably not going to be an option.
10.10.2005 3:49pm
James Kabala (mail):
I agree with Hewitt on saving Schiavo, and I'll take your word for it that he's a nice guy a personal level, but he clearly is the most slavish follower of Bush's talking points in the entire blogosphere, and he's self-important to boot.
10.10.2005 4:29pm
mgarbowski:
Aultimer: We have a simple fact pattern: A man with a sick wife openly and publicly took up with a new woman and fathered two children. You do not have to parse through the multiple hypotheticals you present to determine that he abandoned his wife. You presented hypotheticals but avoided stating what you believe concerning the real world facts. Take a position: did Mr. Schiavo abandon his wife when he fathered two children by another woman? Yes or no? Is it reasonable for a judge to rule no? If so, can you support that determination without resorting to (as Hewitt put it) "quite a lot of paper and ink arguing absurd theories that tell us "A" is not "A" or hypotheticals contrary to fact?

Later, you posit: "It's a choice between tyranny of the judiciary or tyranny of the most influential upon Congress. If you're in an unpopular and poorly funded minority (the two levers of Congressional influence being popularity anf money), the choice of groups to protect your rights is clear."

So men who abandon their wives deserve to be a protected minority? Look, everyone understands that the Constitution protects certain minority rights from majority whims. But leftists and libertines have turned this proposition into an all-encompassing fetish to undermine all democratic results they don't like. Do we really need to have judges advance the rights of spouses who want to starve their comatose wives from majority rule? Is this an essential liberty not subject to political determination?
10.10.2005 4:59pm
Kevin Baker (mail) (www):
Alexandra:
(H)owever Judges may not look to their own moral values in their decision making process, period. Their personal views cannot have any bearing on how they vote.


"May not" and "cannot" notwithstanding, the overwhelming majority of them do, anyway. Read, oh, Cruikshank, or the aforementioned Midkiff, or even Roe and tell me that the Court didn't "look to their own moral values" or that "their personal views" didn't have bearing on how they voted. Judges and Justices are still people. Finding ones who will vote strictly on the law is perhaps the most difficult thing for a President to do - if, in fact, he even tries.

Orin's quote, "But the hard part is sticking with those principles when they no longer comport with the results you really want to reach," makes that point. Everybody has results they really want to reach. I don't think you can be human and not have that. Most are capable of talking themselves into believing that the results they reach are Constitutionally justified. Regarding Kelo again, I found it interesting that O'Connor - while still supporting Midkiff - voted in the minority, and against her own precedent. (She wrote the Midkiff decision, as I understand it.) Something in her made her realize that what Kelo meant was that there would no longer be anything resembling property rights, but she wouldn't come out and say that Midkiff meant pretty much the same thing.

Orin's point is that most judges don't have, at some point, the intellectual honesty to bow to law they don't agree with. As Kozinski illustrated so eloquently, consistency is not a strong suit of the judiciary.
10.10.2005 5:35pm
Alexandra von Maltzan (mail) (www):
Kevin,

It sort of brings us back to: What is Miers likely to do? In your analysis she is likely to be 'human' like everyone else, and therefore ultimately unpredictable, attempting to make sure her 'human' reactions are constitutionally justified.

But then is Scalia sub-human? (probably..LOL) No, hopefully not, simply an originalist with a solid view on the dangers of the Constitution becoming a living document, and in his opinion severely hampering his ability to be unconditionally impartial.

As I am speaking, I recognize my tendency to be utterly romantic about my notion of how intellectual honesty could actually survive in a Washington environment, but then Kozinski would have a lot more to say about that...
10.10.2005 6:57pm
Goober (mail):
Wince---

First, I don't care. I don't want flies around anyway.

The point of a Constitution being "living" (a perhaps unfortunate word) isn't that it places limits on the judicial power any more than that its point is to show you how to fix your car. That's simply not its function, which I think becomes clear when you stop talking about it in abstraction. To put it another way, a "living" constitution with a narrow judicial power would have the same limits as a fixed constitution with narrow judicial power, but different from a "living" constitution with broad judicial power. The dangers of an imperious judiciary is a real concern, to be sure, but it's analytically distinct from whether you accept originalism, textualism, or any other fixed-meaning school.

Aultimer offers a good response, but I have a different interpretation: I don't think the American model of a strong judiciary amounts to a "tyranny of the judiciary" at all, or not as the word tyranny is typically understood. Keep in mind that the legislatures enacts laws, and the judiciary only applies them---that's not a trivial distinction, because if the legislature doesn't provide for, say, a criminal penalty, the judges can't invent one. What the judges can do is say the majoritarian branches have exceeded their authority and so remove a criminal sanction. This isn't without danger; active courts can lead to an undue slackening of the authoritative state. But if you call that "tyranny" you're using it in a very odd sense.

You make some responses to Aultimer that I think demonstrate something about your confusion on this point: Namely, each example of a supposedly tyrannical court is merely a court applying the law passed by a judiciary, or refusing to invent a new right against such a law. First, courts may have been cruel to blacks, but surely no crueler than the legislatures that passed the laws the courts were applying. Your example of "the minority of Americans who want pure Biblical creationism taught to their children" (I assume you mean on in the public schools, otherwise this doesn't reflect the state of the law) doesn't refer to tyrannical judges at all, but rather limitations on the power of religious factions to get the state to do their proselytizing for them. The only function served by the courts in this regard is to deny individual religions the power to use public money in their religious pursuits---but this is limiting the power of government! How does that amount to tyranny?

Your final examples of "the minority of Americans who want to practice polygamy, and the minority of Americans who want to use marijuana for medical purposes," I think, clearly point out where you're in error. Here you're talking about courts refusing to invalidate popularly-enacted laws that restrict the freedom of individuals, not a court inventing such restrictions by itself. But furthermore, any fixed-meaning school of constitutionalism would insist that the rights claimed by such minorities are not to be found in the Constitution; it is only a view of the Constitution as a "living" document that could recognize such novel rights. Yet you think that a "living" constitutionalism invites such tyranny, but in each of these four examples it's factually not the case, and analytically, all a "living" constitution can do is lessen the burden of government upon minorities!

Charges like "activist" or "imperial" or, in your formulation, "tyrannical" judges are by their nature imprecise expression rather than analytical description. This has good consequences as well as bad, but one of the notable bad consequences is that it permits people to apply the hated label to any line of thinking that they don't like. That's not what tyranny means.

mgarbowski---

I get that you don't like the end result of the Schiavo affair. That in itself is not logically sufficient to show that all who disagree with you think fathers are a protected minority, despite your admirable syllogism to that effect.

(If you like, you could look up the definition of "abandonment" in the tomes of family law. It's usually distinct from adultery, something along the lines of "active refusal to cohabit for a period of greater than one year" or words to that effect. But it always has a more precise meaning than "whatever spousal behavior I don't approve of.")
10.10.2005 8:26pm
Cornellian (mail):
Well the laws of the state of Florida apparently say otherwise, and if Mr. Hewitt thinks humility in the face of majoritarian choices is the cardinal virtue of a judge, he's just going to have to live with that.

What is depressing is that Professor Kerr does not realize he is proving Hewitt's point. Hugh's point months ago was that to anyone but law professsors, judges, and post-modern libertines, a man who fathers two children by another woman after his wife gets sick has abandoned his wife, and loses the right to make life or death decisions for her.
10.10.2005 8:45pm
Cornellian (mail):
Umm, why exactly? Why not "humility in the face of a constitution that explicitly limits majoritarian decision making?"

[T]he most important quality in a justice, from Bork's published point of view, would be humility in the face of majoritarian choices consistent with the federalist framework.
10.10.2005 8:48pm
mgarbowski:
My last word -- comment or take shots if you like. I am aware of the family law tome definition of abandonment. Also, although I do not practice family law, I can confirm and concede that your paraphrased definition accurately tracks the law here in NY. I also know, however, the one-year not living together rule is not mechanically applied to the unconscious. If one spouse is unconscious with little or no hope of revival, a court will not consider it abandonment if the unconscious spouse lives in a care facility and the other lives in a house.

I am also fairly certain and will concede that if I did a 50-state survey that there is probably not one state, including Florida, in which "starting a long term relationship with another person and fathering or mothering 2 children with that person while you ask for permission to starve the unconscious spouse" is not included in the marital abandonment statutes of any jurisdiction.

My approval of the behavior is not relevant. I sympathize with someone in Mr. Schiavo's position, and have not condemned or criticized him. But I'm also not ridiculous enough to pretend he did not abandon his marriage. That act can be justifiable, understandable, or unfortunate but not worthy of condemnation. But it is what it is.
10.10.2005 11:15pm
Goober (mail):
I can confirm and concede that your paraphrased definition accurately tracks the law here in NY.

Heh. You may have perceived that I was using my (now dim) recollection of my NY bar study to grasp at what the Florida could be. Not the most reliable standard, I'll concede.

I don't think I have any real shots to take, but I'll venture one suspicion: While you insist your approval / disapproval isn't relevant, whether you characterize Mr. Schiavo's actions as (as do I) making the decision to refuse extraordinary medical treatment on behalf of one's unconscious spouse, or (as do you) starving one's spouse, is hardly a neutral choice. So I'm not sure this is great ground to argue that differing minds can nonetheless agree on the legal question.
10.11.2005 6:43pm
ScurvyOaks (mail):

The Con_Law is hard argument strikes me as scholasticism - what is needed is a Reformation which goes back to the original sources and ignores all the encrustations which have been found to be emanating from the penumbra of the Constitution.


kdonovan: I absolutely agree that we need a Reformation; that's what originalists want.

However, I still think Con Law is indeed hard. Let me ask you this: Is reformed theology easy? Were Luther or Calvin intellectual lightweights? We need some heavyweights on the Supreme Court, with substantial training and experience in Con Law, to pull off this Reformation.
10.11.2005 8:24pm