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Supreme Court Justices and "Policy Implications":

Ed Whelan (National Review's Bench Memos) writes:

In a May 2006 speech, Judge Sotomayor tells "a joke that [she thinks] aptly describes the difference between supreme court, circuit court, and district court judging":

It involves three judges who go duck hunting. A duck flies overhead and the supreme court justice, before he picks up his shotgun, ponders about the policy implications of shooting the duck — how will the environment be affected, how will the duck hunting business be affected if he doesn't shoot the duck, well by the time he finishes, the duck got away.

Another duck flies overhead, and the circuit judge goes through his five part test before pulling the trigger — 1) he lifts the shotgun to his shoulder, 3) [sic] he sights the duck, 3) he measures the velocity of the duck's flight, 4) he aims, and 5) he shoots—and, he misses.

Finally, another duck flies by, the district judge picks up the shotgun and shoots. The duck lands and the district judge picks it up, swings it over his shoulder and decides that he will let the other two judges explain what he did over dinner.

So Sotomayor thinks an unobjectionable and apt description of the role of Supreme Court justices in making decisions involves "ponder[ing] about ... policy implications."

(The excerpt above is from the prepared text on pages 10-12 of the speech (emphasis added). Sotomayor handwrote some trivial changes.)

The trouble with this criticism, it seems to me — even if you take the joke seriously on this point — is that of course Supreme Court Justices routinely, and entirely properly, consider "policy implications" in the sense of consequences. Let me just offer a few examples:

1. In some cases, the Supreme Court acts as a common-law-making court, or something very close to it, and there is (and should be) very little controversy about this. Admiralty law is one example. The defenses to federal criminal charges are another. (Federal crimes are legislatively defined, but the defenses are not.) The law of many federal remedies is in some measure another — consider the preliminary injunction standard, which calls for considering the consequences of granting or denying the injunction, or consider the qualified immunity caselaw, which has largely been developed with an eye towards the consequences of providing more or less liability.

This is so even when there are statutes, but the statutes are either deliberately vague or specifically delegate authority to federal courts. Antitrust law, where the Court has for over a century interpreted the categorical ban on restraints of trade as an authorization to develop a law of which restraints are permissible and which aren't, is another noted example. The fields of evidentiary privileges and copyright fair use, where the Congress expressly left the federal courts the task of developing the law further, offer more examples. In all these areas, the job of the federal courts, and in particular the Supreme Court, is to develop legal rules that they see as sensible "in the light of reason and experience," and looking at consequences ("the policy implications") is an important part of that.

Recall that most of American law (including property, tort, contract, evidence, and criminal law) was developed by the common-law courts. It has been in considerable measure codified by legislatures, but common-law courts continue to develop it. The scope of common law and common-law-like development by federal courts is narrower, but there are still considerable chunks in which it persists.

2. But I take it that Whelan is particularly considered about the interpretation of statutes — and let's even focus on those statutes that don't contain broadly recognized delegation of broad authority to judges — and of constitutional provisions (though Judge Sotomayor didn't focus on those). Still, it's pretty uncontroversial that even there judges should look at practical consequences. To my knowledge, all the Justices, including the strongest textualists and originalists on the Court (such as Justices Scalia and Thomas), routinely consider practical implications in interpreting statutes and constitutional provisions.

The cases that come before the Supreme Court are generally not ones in which the text provides one absolutely clear result. There are plenty of such cases in our legal system, but they tend to be resolved early, precisely because the result is clear. Rather, you often have several plausible readings. Figuring out the best reading often leads judges to ask whether one or another reading would have results that are ridiculous, or inconsistent with what was understood as the purpose of the provision, or unduly administratively burdensome.

Now one can certainly argue that courts should look first and foremost at the text and original meaning; but as I mentioned, I think nearly all Justices and judges would agree that the text and original meaning are often not dispositive. One can also ask that, within those boundaries, courts be attentive to precedent. But precedent itself has often been developed based on considerations of consequences (especially when the text and original meaning were ambiguous). And the decision whether to reverse precedent itself often involves consequentialist attention to "policy implications"; see for instance two recent reversals of precedent, Montejo v. Louisiana and Arizona v. Gant, in both of which Justices Scalia and Thomas were in the majority (and in one of which Chief Justice Roberts and Justice Alito were in the majority).

3. Finally, recall that many well-established constitutional tests, including ones that aren't controversial among conservatives, liberals, or pretty much anyone else, specifically call for an evaluation of consequences. Even Justices Scalia and Thomas, who would read the Equal Protection Clause as being a nearly categorical ban on race classifications by the government, would recognize an exception for "those measures the State must take to provide a bulwark against anarchy, or to prevent violence" (such as prison riots or "imminent danger to life and limb). Likewise, speech restrictions may sometimes be constitutional if they are necessary to serve a sufficiently important government interest — and you can't decide that without looking to the consequences of the decision.

* * *

I mention all this because talk about how judges shouldn't "make policy" has been commonplace now, especially on the Right. (Consider also the fuss about Judge Sotomayor's "the court of appeals is where policy is made" line.) And I think criticisms of excessive judicial policymaking — and in particular, in the sense Judge Sotomayor uses the phrase in the joke quoted above, decisionmaking based on what seems to the judge to be likelier to produce good results — are often correct. Sometimes the text or original meaning of a binding legal command is clear, and courts should follow that.

But it's a mistake, I think, to turn that important insight into a categorical assertion that judges shouldn't "make policy," or should just "follow the law" instead of "making the law." First, judicial development of legal rules, with an eye towards their consequences, is a longstanding feature of American law, recognized and accepted from the Framers onwards. (Yes, I know that there was often talk about how the courts "discovered the law" rather than "made the law," but the reality was that judges did indeed make important decisions based partly on the perceived consequences of those decisions, rather than just following unambiguous custom or the commands of abstract reason.) In the federal courts, the proper scope of the courts' pure common-law-making powers is less, but it's also supplemented by deliberate delegations by Congressional statutes.

Second, some judicial attention to consequences is inevitable given the ambiguity of the text and original meaning of most statutes and constitutional provisions. And third, the constitutional rules that courts have developed — with the support of even those Justices who care most about text and original meaning — expressly call for some degree of consequentialist reasoning in their application.

Any particular decision, or set of decisions, by a court or a judge can of course be faulted for unduly departing from the commands that one thinks should be legally binding. But a thoroughgoing condemnation of judicial attention to "policy implications" in the sense of a decision's practical consequences strikes me as unsupportable, especially in the American legal system as it has been understood for centuries and as it continues to be understood today even by the judges that the Right most applauds.

UPDATE: Ed Whelan e-mailed me to note that he has revised his post in light of this one, to say (italics indicates new text):

So Sotomayor thinks an unobjectionable and apt description of what is most distinctive about the role of Supreme Court justices in making decisions involves is “ponder[ing] about ... policy implications.”

I much appreciate the revision, which does make Whelan's point narrower. But I think that on balance the criticism still isn't quite apt.

A. Recall that the Supreme Court agrees to hear only about 1-2% of the cases that it's asked to hear. Generally speaking, these are cases on which lower courts have split, or on which the courts have disagreed with Congress and the President on the meaning of the Constitution. They are therefore precisely the sorts of cases in which statutory or constitutional text is ambiguous. So the cases the Court hears tend to be precisely the ones that are most likely (not certain, but most likely) to involve a substantial legitimate zone for consequential judgment, even to those judges who think text and original meaning should trump. [UPDATE: D'oh! At first wrote "tend not to be ..."; how did that happen? Sorry.]

B. The Supreme Court is much less bound by its own precedents than are lower courts. In practice, the Supreme Court still adheres to its own precedents in nearly all cases, but it is free to reverse them — and, as I mentioned, concerns about consequences play a major role in deciding whether to reverse a precedent.

C. The Supreme Court it's not all bound by circuit precedent, where district and circuit judges are (except when the circuit is hearing a case en banc). So while district and circuit court arguments are often disposed of by simple citation to a binding circuit precedent, arguments in the Supreme Court often can't be disposed of so easily (and if they could be, the Court wouldn't have agreed the case, see item A).

So for all these reasons, it seems to me that Supreme Court justices are even more likely than other federal judges to legitimately consider the consequences of their decisions. What is indeed legitimately and particularly distinctive about the Supreme Court is that the Justices often can't say "we follow the clear text or original meaning" (since if it was so clear, the case would generally not even be at the Court), sometimes shouldn't say "we follow our own precedent" (since often there's a solid argument for reversing the precedent), and nearly never say "we follow circuit precedent." Instead, they must look to other sources — and consequences, for the reasons I described above, are one such important source.

ruuffles (mail) (www):
It's a joke in a graduation speech (click the link in the NRO post).
6.5.2009 12:57pm
AJK:
If you read the original speech (page 12) you can see that the joke isn't quite as bad (from a humorist's point of view) as Whelan's quoted version. Specifically, the last sentence reads, "The duck lands and the district court judge picks it up, swings it over his shoulder and decides that he will let he tells the other two judges explain what he did over dinner." Still not funny, but at least it makes sense.
6.5.2009 1:00pm
Careless:

swings it over his shoulder and decides that he will the the other two judges explain what he did over dinner.


To save typo-haters like me time, it looks like this should read "swings it over his shoulder and decides that he lets[sic] the other two judges explain what he did over dinner"
6.5.2009 1:00pm
Careless:
ah, "tells" works better
6.5.2009 1:00pm
ruuffles (mail) (www):
Ugh. The NRO guy completely botched this sentence. It should read

There is a joke that aptly describes the difference between supreme court, circuit court, and district court judging

I suppose the word "aptly" means she doesn't adamantly disagree with the overall meaning, but the phrase "there is a joke" seems to mean she didn't write it. Unfortunately, the AP has picked it up so now googling for parts of the joke only results in copies of the AP story.

(She also scribbled a phrase at the end of the sentence; can anyone make it out?)
6.5.2009 1:04pm
RPT (mail):
No joke is below misquoted scrutiny. After all, it's not as if the Bush v. Gore majority didn't ponder the implications of their votes.....and make their own jokes about the outcome after the fact.
6.5.2009 1:14pm
Redman:
I'm calling PETA.
6.5.2009 1:25pm
M N Ralph:
First, empathy is bad. Now, Whelan attacks wisdom.
6.5.2009 1:31pm
NaG (mail):
I would posit that even the most diehard formulaic originalist/textualist must admit that a large part of the reason why they view that jurisprudence as the best one is because of the simple policy reason that to interpret the Constitution in other ways leads to (more [ed.: gotta play fair here]) unpredictable and arbitrary results, when it is better to have predictable results that the people can rely upon.
6.5.2009 1:35pm
AF:
Nice post, Professor Volokh.

Of course, in the course of legitimately considering the policy implications or practical consequences of their decisions, judges may legitimately have empathy toward the people affected by these consequences.

Thus, your final paragraph could be rewritten:


Any particular decision, or set of decisions, by a court or a judge can of course be faulted for unduly departing from the commands that one thinks should be legally binding. But a thoroughgoing condemnation of judicial attention to "policy implications empathy" in the sense of with respect to a decision's practical consequences strikes me as unsupportable, especially in the American legal system as it has been understood for centuries and as it continues to be understood today even by the judges that the Right most applauds.
6.5.2009 1:38pm
frankcross (mail):
I believe it was Montejo where Justice Scalia wrote about the need to consider the effect of a ruling on crime. Did Mr. Whelan editorialize about that?
6.5.2009 1:39pm
DangerMouse:
I think that the joke is just another bit of evidence how Sotomayor thinks that a judge is some kind of super-legislator. In the scheme of things, it's much less important than her repeated, continued denigration of white men in her speeches, and her membership in THE RACE, aka: La Raza. It's increasingly difficult to say that she doesn't have a problem with white men or that she's not a racist.
6.5.2009 1:47pm
levisbaby:
What was that, about 800 words about a joke?
6.5.2009 1:47pm
CJColucci:
Absolutely right. The sad thing is that any of this evens needs to be said. And the really sad thing is that -- for many of the people complaining -- it doesn't need to be said. They know it perfectly well and shreik anyway.
6.5.2009 1:47pm
jwhiii (mail):
Too often, judicial debates seem to break into discussions between people who understand how courts work -- the esteemed Mr. Volokh among them -- and people who, quite frankly, don't. How does one bridge that gap?
6.5.2009 1:49pm
B.A. Baracus (mail):
CJColucci, welcome to the last 8 years...wait, make that 16 years...wait,...
6.5.2009 1:51pm
Steve:
I didn't know it was so controversial that in, for example, criminal procedure cases, the Supreme Court routinely considers issues like "will this rule provide clear guidance for law enforcement"? But look, this is the predictable result of a political strategy which relies on pretending that "the law" provides clear answers for every question and all a judge has to do is call the balls and strikes.
6.5.2009 1:52pm
Richard A. (mail):
I wonder if Whelan would object if Supreme Court Justice Sotomayor, ruling on perhaps a Guam abortion law, examines the policy aspects, discovers that approving the law would in effect permit abortion bans in all 50 states, decides this is a good idea, and then joins the majority in supporting that law.
6.5.2009 1:53pm
George Lyon (mail):
At least the joke shows she not as any gun as i feared.
6.5.2009 1:54pm
ruuffles (mail) (www):

I believe it was Montejo where Justice Scalia wrote about the need to consider the effect of a ruling on crime. Did Mr. Whelan editorialize about that?

Don't forget Scalia's dissent in BOUMEDIENE, with his proclamation

It will almost certainly cause more Americans to be killed.
6.5.2009 1:55pm
Henry679 (mail):
Jesus Christ, enough already. Her critics are looking like bigger dorks more anything else. Tiny Rich Lowry is whining over at NRO about this:

Whether born from experience or inherent physiological differences . . . our gender makes and will make a difference in our judging. In short, I accept the proposition that a difference will be made by the presence of women on the bench and that my experiences will affect the facts that I choose to see as a judge. I simply do not know exactly what that difference will be in my judging, but I accept there will be some based on my gender and the experiences it has imposed on me.



I guess he is disappointed we are not all brains in jar.
6.5.2009 2:01pm
Bill reynolds (mail):
People--it's a JOKE. remember what freud (?) said: sometimes a cigar's just a smoke.
6.5.2009 2:11pm
troll_dc2 (mail):

Too often, judicial debates seem to break into discussions between people who understand how courts work -- the esteemed Mr. Volokh among them -- and people who, quite frankly, don't. How does one bridge that gap?



That is a good point, and I wish that I could say that "more and better education" is the answer. But from my discussions with people, I think that the education in question needs to be conducted in a law school. Otherwise, you are throwing the equivalent of a foreign language at people.

As for Prof. Volokh's points, you do not have to be a conservative (whatever that is) to agree with him. There is one point that he alluded to but did not name; the phrase is "the common law of the statute."

For example, Congress passed a statute to forbid employment discrimination. It said that an employer may not "discriminate because of" various factors. But it supplied few rules of decision. The courts did all of the lifting. The Supreme Court, not Congress, made up the concept of disparate impact. The Supreme Court, not Congress, decided which party had what burden. There was not just one decision on these (and other) points; instead, there were a series for each issue, and each decision built on the last. In fact, Congress' role in the development of Title VII has been limited to amending the statute every so often when it thought that the Court was too far off base.

Was the Court making law? Yes. Was it engaged in policymaking? Absolutely. Was it wrong to do so? Of course not. If the correct rule is that a claim should be rejected if it raises an issue as to which Congress has not given an indication of what the answer should be, plaintiffs would almost never win. Congress would wind up being pelted with so many issues to clarify that it would look like a massively oversized administrative agency.
6.5.2009 2:16pm
M N Ralph:

What was that, about 800 words about a joke?


More like 800 words to say that judges, particularly supreme court judges, do and should consider the consequences of their decisions. Admittedly, you would think this is a pretty obvious point, but it seems to have escaped the attention of some, so I appreciate the post.
6.5.2009 2:17pm
Anon321:
Even setting aside the point that it's a joke told at the expense of the Supreme Court and therefore shouldn't be read as an account of Sotomayor's normative views of judging, I find it perplexing that anyone who had so much as attended oral arguments at the Supreme Court, as Whelan has, could think it noteworthy (and objectionable) that the Justices consider consequences and policy implications.

Almost inevitably, oral arguments include some questions like "If we adopt your legal theory, what will be the consequences for X?", "Under your theory, what would happen in case Y?", "If we rule in your favor, won't every Z event result in a lawsuit?" and dozens of similar variations. As EV suggests, these questions do not seem to be limited by jurisprudential philosophy -- judges of all varieties ask questions like this in at least some subset of cases. Our legal system would be worse (and perhaps unworkable) if it didn't happen this way.

(As a slight aside, I also find it irritating that so many people think that "consideration of consequences and policy" is synonymous with "ruling in a way that advances my personal political preferences." Lots of decisions are made at least partly on the basis of jurisprudential philosophy or principles about democracy or the proper role of the judiciary. To acknowledge that judges resort to these considerations when interpretive material runs out is not at all to say that judges do or should just choose the outcome that they "like" the best, ignoring the law if necessary.)
6.5.2009 2:18pm
DangerMouse:
I guess he is disappointed we are not all brains in jar.

The left thinks that woman and minorities have to hold certain political opinions in order to be genuinely considered women or minorities. Thus, Clarence Thomas is an Uncle Tom, Sarah Palin is not a woman, etc., etc.

It's reasonable to believe that Sotomayor, steeped in the racism of modern political correctness and liberal thinking, believes that as well. Additionally, it is also supported her repeated insistence that a woman judge or a woman latino judge is better than a white male judghe. Her repeated denigrations of white men suggest that her racial attitudes will carry into her decisionmaking. That would be typically liberal, but it would not be impartial judging.

Given the pervasiveness of racist assumptions underlying modern liberal political correctness, perhaps this is the best Obama can do if he has to get a lib on the court. Of course, that shouldn't stop Senators from asking her why she has to continuously attack white men, or whether her membership in The Race (La Raza) indicates a bias against whites, or hatrid for non-Latino peoples, and whether she supports the concept of Azlatan or other radical racial projects once favored The Race when she was a member (which they now are trying to step away from).
6.5.2009 2:19pm
AndyinNc:
I too find it shocking that judges sometimes employ judgment when judging things.
6.5.2009 2:22pm
Gregger (mail):
Here is an example of considering consequences: if not for Roe v Wade we might have legislation mandating abortions.

The implication that some attach is that if the law says abortions are legal then somehow the law has concluded they are moral.

Of course every law could be construed as legislating morality. For example speed laws are simply saying that speeding is bad.

I'm in favor of a law that reads, "It shall be illegal to do bad things."
6.5.2009 2:26pm
Dilan Esper (mail) (www):
This is an excellent post by Professor Volokh. Unfortunately, it will fall on deaf ears where it needs to be heard, because conservatives have been marching under the flag of "conservatives interpret the law, liberals rule based on their own policy preferences" for so long, and it is such an established talking point, that they aren't going to modify their rheotric.
6.5.2009 2:27pm
troll_dc2 (mail):

It's reasonable to believe that Sotomayor, steeped in the racism of modern political correctness and liberal thinking, believes that as well. Additionally, it is also supported her repeated insistence that a woman judge or a woman latino judge is better than a white male judghe. Her repeated denigrations of white men suggest that her racial attitudes will carry into her decisionmaking. That would be typically liberal, but it would not be impartial judging.

Given the pervasiveness of racist assumptions underlying modern liberal political correctness, perhaps this is the best Obama can do if he has to get a lib on the court. Of course, that shouldn't stop Senators from asking her why she has to continuously attack white men, or whether her membership in The Race (La Raza) indicates a bias against whites, or hatrid for non-Latino peoples, and whether she supports the concept of Azlatan or other radical racial projects once favored The Race when she was a member (which they now are trying to step away from).



She has a 17-year track record on the bench. Is it too much for the people who are predisposed to oppose her to look at what she has actually done? Where are the decisions (or even the statements in her decisions) showing some support for the assertions made in the quoted paragraphs?
6.5.2009 2:38pm
Henry679 (mail):
Dilan, are you saying that, for example, when the Great Originalist Scalia shockingly betrayed what seemed to be his Commerce Clause jurisprudence in Gonzalez v. Raich, that he MIGHT just have foisted his own policy preference on us all in the guise of Constitutional law? Hmmmm? Maybe? Is that what you are saying?

SHOCKING, ABSOLUTELY SHOCKING, I TELL YOU!!!
6.5.2009 2:39pm
Dilan Esper (mail) (www):
She has a 17-year track record on the bench. Is it too much for the people who are predisposed to oppose her to look at what she has actually done? Where are the decisions (or even the statements in her decisions) showing some support for the assertions made in the quoted paragraphs?

In addition, that commenter was suggesting that Judge Sotomayor supported "Azlatan" [sic], i.e., a supposed proposed "reconquista" of former Mexican territories, which is a rather strange thing for a judge of Puerto Rican ancestry to be interested in.
6.5.2009 2:40pm
jwhiii (mail):
This is an excellent post by Professor Volokh. Unfortunately, it will fall on deaf ears where it needs to be heard, because conservatives have been marching under the flag of "conservatives interpret the law, liberals rule based on their own policy preferences" for so long, and it is such an established talking point, that they aren't going to modify their rheotric.


I would add to it that it's rather unfortunate that conservatives have turned relatively neutral phrase "strict constructionist" into codeword for "a judge who opposes abortion."

That said, I don't think liberals evince a superior understanding of the Constitution or of the court system. I've seen left-wingers, for example, argue that the General Welfare clause obligates the federal government to fund education!
6.5.2009 2:46pm
Henry679 (mail):
Puerto Rican, Mex, what the hell is the difference--they all want to keep the white man down, just like they have been doing for 400 years.
6.5.2009 2:47pm
ruuffles (mail) (www):
Get a load of their new cover page.
but its twice the fun!
6.5.2009 2:50pm
Allan Walstad (mail):
Re "empathy" and "judges making policy", my concern is with the possibility of judges starting from the result they want, then working backward to jigger up some legal or constitutional "justification" for it. I think at one time it was well understood the judges shouldn't do that, and it was reasonably well trusted that they did not.

Why have judicial appointments become so contentious? I think it's precisely because expectations have changed. Rather than unbiased arbiters, judges are now seen as part of the political game, chosen to push certain agendas. And once that starts, it seems there's no going back, because a) unconstitutional government programs have become legally and politically entrenched, and b) you'll be at a disadvantage if you don't get your supporters on the bench when you have the political power to do so.

Constitutions work only if they are honored. Just as any lock can be picked, so it is that through sufficient rhetorical sophistry any constitutional constraint can be evaded. Thus, for example, we have volumes of legislation and bureaucratic empires founded on the risible proposition that unlimited federal power flows from the commerce clause. We wrangle over judicial nominations, because it's not about obeying or enforcing the Constitution, it's about just how the Constitution will be stretched and twisted.
6.5.2009 2:52pm
Henry679 (mail):
I have some advice to conservatives who don't like the potential direction of the Supreme Court under Obama--win some elections, you pathetic, desperate, crybaby losers.
6.5.2009 2:53pm
Henry679 (mail):
Why have judicial appointments become so contentious? I think it's precisely because expectations have changed. Rather than unbiased arbiters, judges are now seen as part of the political game, chosen to push certain agendas.



But if anything, justices today, left and right, are for more "technicians" than justices of old. Go read some decisions from the Warren Court on back--talk about people who made it up on the fly! Obviously result oriented cases like Bush v. Gore were FAR more common.
6.5.2009 2:56pm
SeaDrive:
Humor works by distorting the world view of the audience. Jokes are built on the world view of the audience, not that of the joker. This is a very unlikely path of analysis.
6.5.2009 2:58pm
Henry679 (mail):
SeaDrive, you are obviously too sane to be employed at what passes for the National Review these days.
6.5.2009 3:00pm
troll_dc2 (mail):

Humor works by distorting the world view of the audience. Jokes are built on the world view of the audience, not that of the joker. This is a very unlikely path of analysis.



When you have no better basis for your desired conclusion on an issue (desired in the sense that it fits your previously detrmined ideological viewpoint), you rely on misconstruing jokes and whatever else is available. Remember, the purpose is to reach that conclusion while using complete sentences.
6.5.2009 3:06pm
ck:

judges are now seen as part of the political game


"now" meaning "since 1789"
6.5.2009 3:25pm
Henry679 (mail):
"now" meaning "since 1789"



Well, he was out to lunch during that whole "court-packing" thingee.
6.5.2009 3:27pm
MarkField (mail):
This post is why (a) I read this blog; and (b) Prof. Volokh enjoys so much respect by those of the left as well as the right.
6.5.2009 3:29pm
troll_dc2 (mail):

This post is why (a) I read this blog; and (b) Prof. Volokh enjoys so much respect by those of the left as well as the right.



Once the comment period for a blog entry has closed, I would like to see him--since he obviously has a lot of free time--put in his own observations about the comments that the blog entry draws. I am definitely not a "conservative" (whatever that means), but I find him quite sensible on so much that I am not sure why he is considered (or considers himself) to be a conservative. Does he really need to have an ideology at all?
6.5.2009 3:37pm
einhverfr (mail) (www):

Rather than unbiased arbiters, judges are now seen as part of the political game, chosen to push certain agendas.


Yeah, like overturning Roe v. Wade ;-)
6.5.2009 3:46pm
Frater Plotter:
Regarding "policy implications" ... isn't freedom a policy?

The choice between freedom and tyranny is not one that can be made on principles of abstract justice alone, nor merely on the precedent of specific cases, nor solely on interpreting the plain meaning of the statutes. Any statute can be interpreted tyrannically, and the law of tyrants can be completely evenhanded while still offending freedom.

Rather, freedom must be continually asserted through conscientious choice to practice and defend it. Freedom is what the academic liberals would call a "cultural value" and the conservatives would call "tradition" -- but as with all values and traditions, it must actually be carried out in order to persist. It has to be policy, too.

The judiciary of a free state should fully embrace the policy implications of this tradition, and should make all of its decisions in a manner informed by those policy implications.
6.5.2009 3:46pm
EV for Scotus!:
taking nothing away from Sasha...
6.5.2009 3:55pm
troll_dc2 (mail):

The judiciary of a free state should fully embrace the policy implications of this tradition, and should make all of its decisions in a manner informed by those policy implications.



Even if Congress has written something else in the statute? If the legislature is fairly clear in what it wants, how can the judiciary be justified in giving the country a different policy?
6.5.2009 4:00pm
NickM (mail) (www):
A far more accurate joke would be that the Supreme Court Justice announces he will shoot the duck several months from that day, waits around, realizes the duck is long gone, and dismisses the entire hunting trip as moot.

Nick
6.5.2009 4:11pm
troll_dc2 (mail):
EV has updated his blog entry. But I have a problem with one sentence:


So the cases the Court hears tend not to be precisely the ones that are most likely (not certain, but most likely) to involve a substantial legitimate zone for consequential judgment, even to those judges who think text and original meaning should trump.



I believe that the phrase in the first line should be "tend to be precisely"; the word "not" seems out of place under the circumstances. Or am I misreading things?
6.5.2009 4:27pm
BD57 (mail):
Well, first I'm struck by the arrogant tone some of you show toward those with whom you disagree. I'll be blunt - you aren't near as smart or sophisticated as you think you are.

Second, it's a shame people are imprecise with their language.

Third, I have no problem whatsoever with judges considering the policy implications of what they do. My problem is that their focus on policy implications tends to be sooooo cramped.

It's funny that someone would cite reversal of Roe v. Wade as a "policy agenda" item when Roe stands as one of the best examples of the mischief the Supreme Court does when it fails to adequately consider the policy implication of its actions.

The Constitution was not drafted to create a "royal counsel" of nine old men in Washington to make law for us all. If the framers had a bias, it was in favor of self-government with the consent of the governed.

An elementary principle of common-law judging is that the court's decision is (generally speaking) only binding on the parties who are actually before the court. While this remains technically true, decisions like Roe, as implemented by the "modern day" judiciary, have the effect of removing issues from the public arena by declaring them effectively 'off limits' .... the consent of the governed is no longer relevant (to the point where, in Casey, the Court essentially told everyone to "shut up already").

Now it may be that in a particular case, vindicating the constitutional rights each of us possess requires telling the rest of America "your opinion on this matter is irrelevant." The problem is (1) every time it's done we lose a bit of our right of self-government; and (2) removing an issue from the political sphere tends to make it MORE contentious, not less.

The "policy implication" too many judges fail to appreciate is this: issues resolved by the people are usually easier to sell to the people; sometimes, the best answer a wise judge - whether a Latina woman or an old white guy - could give is "this is an issue for your elected representatives to resolve."
6.5.2009 5:35pm
ruuffles (mail) (www):

(2) removing an issue from the political sphere tends to make it MORE contentious, not less.

Oh you mean like Heller? Gotcha.
6.5.2009 6:13pm
Dilan Esper (mail) (www):
An elementary principle of common-law judging is that the court's decision is (generally speaking) only binding on the parties who are actually before the court.

This is not true at all. Not one bit. The common law system involves judges developing a system of legal principles based on precedential decisionmaking. In the English system (the longest standing common law system), there are reported decisions dating back 5 or 6 centuries on issues such as tort law (writs of trespass) which divulge legal principles that are applicable to modern cases.
6.5.2009 6:19pm
troll_dc2 (mail):

An elementary principle of common-law judging is that the court's decision is (generally speaking) only binding on the parties who are actually before the court.


You can't be suggesting that there is no such concept as stare decisis, are you? The judgment certainly binds only the parties, but the principle laid down in the case constrains (if not actually binds) the same court in subsequent decisions. If there is a different outcome in a subsequent case involving different parties, one would hope that it is due to a difference in relevant facts or to the raising of an argument not presented in the earlier case.
6.5.2009 7:11pm
pluribus:
BD57:

The Constitution was not drafted to create a "royal counsel" of nine old men in Washington to make law for us all. If the framers had a bias, it was in favor of self-government with the consent of the governed.

I love these straw man arguments. They're so, you know, stra man. Whose copy of the U.S. Constitution actually creates a "royal counsel"? And, as for "nine old men," you are aware, of course, that Sonia Sotomayor is a woman, and not particularly old, at that. But my copy of the charter does still say that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." Does that make me an originalist, or a textualist, or a strict constructionist? Not really, but it doesn't make me a "royal counselist," either.
6.5.2009 7:57pm
David Hardy (mail) (www):
Version of joke I heard (circa mid 1990s) was funnier.... the three were hunting during mallard season.

One was an attorney (who worried about details of identifying the incoming bird as a mallard, while it got out of range;

One was a law prof., who agonized about legal aspects of depositing lead shot into a wetland, while his bird got out of range;

Third was a federal district judge who, upon a bird coming into range, blasted it out of the sky and cried out "Sure hope that was a mallard!"
6.5.2009 8:29pm
http://volokh.com/?exclude=davidb :
I heard a version much like David Hardy did, only with a circuit court judge and then a supreme court justice first passing up on the shot due to indecision, overly analytical personalities, etc.

I think it's a better joke when it's aimed at the idea of a District Judge shooting from the hip, and having to make decisions in the heat of the moment that then get criticized, pondered, or never made at all by his or her "betters" higher up the appellate ladder.
6.5.2009 10:39pm
Allan Walstad (mail):
While they ponder the policy implications, one might hope our dear justices would give more thought to the Constitutional implications of their decisions.

What is the Constitutional implication of upholding federal regulation of anything that may plausibly be claimed to affect interstate commerce? It is to grant the feds authority to control virtually everything. How does that jive with the whole purpose of the Constitution, restated for the benefit of the dense in 10A, to provide only a limited range of functions and corresponding powers to the federal government?

What is the Constitutional implication of the attempt by four justices, in their Heller dissent, to render 2A as nothing more than a ink blot? It is precisely this: if rhetorical sophistry can nullify one provision of the Bill of Rights, then none of our rights is safe.

Seen against the backdrop of how far down we've come, Sotomayor's shortcomings look mediocre. Try as she may, she's unlikely to cause as much damage to the Constitution as has already been done. Obama will probably offer up still worse candidates in the future.
6.5.2009 10:41pm
Leo Marvin (mail):
MarkField:

This post is why (a) I read this blog; and (b) Prof. Volokh enjoys so much respect by those of the left as well as the right.

Bingo



Dilan Esper:

This is an excellent post by Professor Volokh. Unfortunately, it will fall on deaf ears where it needs to be heard, because conservatives have been marching under the flag of "conservatives interpret the law, liberals rule based on their own policy preferences" for so long, and it is such an established talking point, that they aren't going to modify their rheotric.

There's at least one influential conservative I'd like to think will read it.



DangerMouse:

It's increasingly difficult to say that she doesn't have a problem with white men or that she's not a racist.

How hard are you trying?
6.5.2009 11:15pm
Leo Marvin (mail):
By the way, wholly apart from EV's excellent critique, Whelan seems to have chosen an odd example to make his case that Sotomayor endorses an extremist liberal vision of jurisprudence. It's not as if the policy pondering Supreme Court Justice gets flattered by this joke.
6.5.2009 11:49pm
Henry679 (mail):
Leo, you just aren't panicky enough--try to get with the program.
6.6.2009 9:48am
troll_dc2 (mail):

What is the Constitutional implication of upholding federal regulation of anything that may plausibly be claimed to affect interstate commerce? It is to grant the feds authority to control virtually everything. How does that jive with the whole purpose of the Constitution, restated for the benefit of the dense in 10A, to provide only a limited range of functions and corresponding powers to the federal government?



Do we have a national economy or don't we? If we do (and there seems to be strong evidence that we do), did we really need to enact a constitutional amendment to enable the federal government to regulate it? If so, do you think that we would not have done so along the lines of how the Supreme Court has been reading the Commerce Clause for the past 70 or so years?

Do you really think that John Marshall would not have read the Clause in the same way that we do today? Do you really think that there ought to be a constitutional distinction between manufacturing and commerce?

I note with interest that the insurance industry is now urging the federal government to provide a federal alternative to state regulation of that industry. Why do you think that they are so doing?
6.6.2009 10:04am
Henry679 (mail):
I note with interest that the insurance industry is now urging the federal government to provide a federal alternative to state regulation of that industry. Why do you think that they are so doing?



They're socialists too?
6.6.2009 10:08am
Tony Tutins (mail):

the Great Originalist Scalia shockingly betrayed what seemed to be his Commerce Clause jurisprudence in Gonzalez v. Raich, that he MIGHT just have foisted his own policy preference on us all in the guise of Constitutional law?

Another example is Scalia's interpreting 80 years of free exercise jurisprudence to downgrade it to a non-fundamental right, in Employment Department v. Smith. Policy is all over that decision.
6.6.2009 10:44am
Allan Walstad (mail):

Do we have a national economy or don't we? If we do (and there seems to be strong evidence that we do), did we really need to enact a constitutional amendment to enable the federal government to regulate it?

td, it's an interesting question, how much government regulation of an economy is in principle just or beneficial, but my point simply is that the Constitutional power for the feds to regulate interstate commerce was not and could not have been a power to regulate anything and everything that might be said to affect such commerce--because, that is simply a blank check to control everything, and the Constitution was not written to give the feds a blank check. You're welcome to propose a Constitutional amendment to make it so, but without that amendment a large part of what the feds are doing falls outside their rightful power, and the fact that the Court let them get away with it does not make it all right. In fact, as I suggested earlier, the acceptance and entrenchment of such unconstitutional activity has a lot to do with why Court nominations are so contentious: it's not about appointing judges who will enforce the Constitution, it's about appointing ones who will violate it--or allow it to be violated--in the preferred ways.

By the way, your invocation of "national economy" looks like nothing more than an attempt to substitute definition for argument. By the same token, we have a "global economy," don't we? Should the Court therefore rule that the US is obliged to let the UN regulate the whole shebang, including everything we make and do here?
6.6.2009 3:07pm
troll_dc2 (mail):
I used the phrase "national economy" because I recently read a piece discussing Owen Roberts, who was quite reticent as to why he made "the switch that saved Nine." Near the end of his life, he said that he had realized that we had a national economy; he did not offer a legal explanation for his change of position, I believe the article said.

I agree that the Commerce Clause can be overapplied. But are you of the view that Congress does not properly have jurisdiction to enact laws covering such subjects as labor relations, securities transactions, environmental problems, product safety issues, and the like? For me, this question begets another: how do you know that the pre-New Deal concept of the Commerce Clause was correct?
6.6.2009 4:51pm
BD57 (mail):
Dilan:

sorry, but you're wrong - or we could be misunderstanding each other.

The common law theory is that similar cases should yield similar results because predictability in the law has its virtues.

Until a case is tried, however, there is no determination that it is "similar" to any other case - if there was, then the right of those parties to their day in court would be nonexistent.

troll:

No, not suggesting that. Am saying the people in the subsequent case do get to present their case and argue that they are alike (or different, as the case may be).

pluribus:

No one's Constitution created a royal counsel - that's sorta the point, which you appear to have missed.

Yes, I'm aware the nominee is a woman. Guess what - so is retired Justice O'Connor and current Justice Ginsburg. Whether the Founders contemplated women Justices .... they might have, though at the time, given women didn't have the right to vote, I suspect they figured the Court would be nine old white guys (well, maybe they all wouldn't have been old).

Back to the question - do you want to be ruled by judges or people you elect? If you'd prefer the latter, then you'd prefer judges who are extraordinarily reticent to establish public policy through their rulings.
6.6.2009 5:12pm
Allan Walstad (mail):

But are you of the view that Congress does not properly have jurisdiction to enact laws covering such subjects as labor relations, securities transactions, environmental problems, product safety issues, and the like?

I don't have a simple yes or no to all of that. On labor relations, yes I can't imagine where Congress thinks it gets the power to manipulate such interactions. On environmental issues that cross state lines, sure the feds have a role, unless the affected states can negotiate something on their own, but of course some environmental issues involve pollutants that travel nationally and internationally. As for product safety issues, When the products themselves are shipped across state lines then I guess that comes under the Commerce Clause.

Let me get to the nub: Social Security is flatly unconstitutional in my opinion. There is simply no Constitutional power for the feds to implement a socialist retirement plan. Same for minimum wage laws. Nor is there any Constitutional power for the feds to bust people for growing and consuming marijuana (or other drugs) within the confines of a single state (even in contradiction to the laws of that state itself!)

...how do you know that the pre-New Deal concept of the Commerce Clause was correct?

I don't believe I offered a brief specifically on behalf of "the pre-New Deal concept." I just pointed out why the power conferred on the feds by the commerce clause must be a limited one.
6.6.2009 7:52pm
Mahan Atma (mail):
Wow, Whelan sure has self-destructed as a result of all this...
6.6.2009 9:33pm
Dilan Esper (mail) (www):
Until a case is tried, however, there is no determination that it is "similar" to any other case - if there was, then the right of those parties to their day in court would be nonexistent.

You are ignoring (1) the source of the instructions for the jury and (2) the legal standards that will govern the review of the jury verdict. Both those things come from case precedent.

It's simply strange that anyone would say that the common law system doesn't involve legal precedent when England, the country that created it, has used legal precedent for centuries as part of it.
6.7.2009 12:31am
David Welker (www):
Excellent post Eugene Volokh. It is really nice to hear these common sense arguments made by you. To me, even when I disagree with, I feel as though you have a firm grasp on reality. Maybe I am just saying that because I agree with you!
6.7.2009 1:42am
David Welker (www):
Allan Walstad

What would we do without your opinions on what is or is not constitutional? I mean, after all, as a physicist who studies the laws that govern nature, surely your opinion on the laws, even though not backed up by any actual substantive knowledge, are better.
6.7.2009 1:46am
ReaderY:
More proof that the people who go into law are those unable to take a joke.
6.7.2009 2:05pm
Jamey (mail):
And nowhere in said joke does a Supreme Court Justice go duck hunting with a Vice President, even though the Court is charged with ruling in a case involving that same Vice President. (Nor does the Vice President shoot a lawyer in the face.)

Because that would be crazy beyond belief. Quack-Quack.

A shame Whelan gets off so easy here.
6.7.2009 4:21pm
RAH (mail):


I thought that Sotamayor's statement about the Circuit Ct is where policy is often made was an unacknowledged truth. As a conservative I am not happy that an assumed liberal will be in a position to make policy decision that are so consequential. Certainly as a Supreme Ct justice her political ideology will inform her judgment. I do not think that that is bad so much as her ideology is problematic from my viewpoint.

Actually I think that liberal argument in Reagan's, Bush 1&2 nominations about ideology was a legitimate basis to affirm or deny a nomination. I thought liberals took it to the extreme in the personal destruction of Clarence Thomas with accusations of sexual harassment. However that means that conservatives certainly can vote based on ideology doe a nominee or not and use milder but similar tactics.

Conservatives generally have allowed the nominations to go through without much fuss unless the nominee seemed very badly qualified. I see no reason that this restraint should be continued.

I appreciate learning about nominee's jokes so I can make up my own mind but I find that joke perfectly acceptable.

The problem with a nominee is that they are not always black and white in opinions. They take precedent and the law in and often can reach startling opinions.

My guess is that Ms. Sotamayor will side with affirmative actions policies and will take the federal government argument over most others. She seems to be very rigid and not imaginative.
Her Maloney case had very little argument and I expect the 7th Circuit Ct had it right to preserve the ability of Gura and let the SCOTUS decide incorporation.

The unusual decision of the 9th Circuit Ct on incorporation was a visible indication that they so consider gun rights a fundamental civil right the case did not mean they had to make that decision but they thought they should.

Some judges do not want to have a judgment of theirs to have monumental consequences. Some do want that power. I often thought that if a judge wants to set policy they should be a legislator rather than a judge. But that means compromise and influence and judges do not suffer under those constraints as much.

I am against her confirmation but any other confirmation may be the same or worse.

Certainly I was happy that conservatives scuttled Meier's nomination since I thought she was eminently unqualified. I have heard that Woods has a better legal mind so she may be a more effective liberal judge than Sotamayor and thus more dangerous to the damaging our traditional and conservative values in the US. Personally I wish that Judges would be concerned about the abrogation of the Constitution with these bailouts and federal control over entire industries such as automobiles, banks and health care.

I hope that SCOTUS will take the Indiana pensioners case on the Chrysler ownership status of assets since that seems to be a dangerous precedent overturn decades of contract and bankruptcy law.
6.7.2009 9:08pm
innocent bystander (mail):
The district judge should have gone for Ed Whelan.
6.8.2009 10:38am
theWalrus (mail):
I've clicked thru to this story so many times I don't remember where I initially began!

Do people really take this Ed Whelan seriously? I had not heard of him and can only think that kids who had improper potty training should not grow up to be lawyers.
6.8.2009 3:36pm
BD57 (mail):
Dilan:

No, I'm not - I deal with those issues every day and I fully understand precedent. I also understand from experience that determining whether a particular precedent applies is a decision made by human beings (a judge in a bench trial, a jury otherwise).

Precedent applies when the court says it does.
6.8.2009 7:06pm
Tom Anderson (mail):
Why is there a sic used for "he sights the duck". This is how you use the term "sight" as in "sight a target". It is a verb that means to use the sights of a gun.
6.8.2009 11:47pm
Travis Ormsby:
I'm not exactly sure where this "judges are unbiased arbiters of clearly established laws" idea comes from. Whelan is wrong, and he should know he's wrong, about the policy making role of the federal courts.

I teach high school Advanced Placement Government and Politics. I teach my students that the federal courts are a policymaking institution just like the Congress, the Presidency, and the executive bureaucracy. Every single major Supreme Court case makes new policy, all the way from Marbury to Heller. There is no disagreement among any of the textbook authors, my colleagues, or the College Board about that characterization, either.

What Whelan and other conservatives are really upset about isn't that judges make policy, they are concerned about the types of policies liberal judges will make. We should stop kidding ourselves that judges have their decisions guided by law, and instead realize that they make up their minds based on the outcome they prefer most, then retroactively apply legal reasoning to reach the intended result.

Bush v. Gore is probably the best example of this decision making process. The Justices knew it too, which is precisely why they didn't want anyone using their ruling as precedent.
6.9.2009 12:25am

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