Legal scholars and historians frequently make sweeping conclusions about the Supreme Court and its individual Justices based on votes in particular cases. The problem is that until relatively recently, the norms on the Supreme Court discouraged dissent, and the Justices may at certain times have had additional reasons beyond those norms for joining a majority opinion they disagreed with.
I've been working on chapter 4 of my book-in-progress, Rehabilitating Lochner. This chapter deals with protective labor laws for women, and liberty of contract challenges to such laws. In 1923, the Supreme Court invalidated a minimum wage for women in a 5-4 vote (Adkins v. Children's Hospital), but a year later the Court unanimously upheld a ban on night work by women (Radice v. New York).
The apparent inconsistency in these cases has led scholars to explain the discrepancy in a variety of ways, none of them complimentary to the Justices. One obvious but generally overlooked possible explanation is that in the night work case, the Court felt bound by a 1908 precedent (Muller v. Oregon) upholding a maximum hours law for women on the grounds that women are physically weaker than men, a rationale that simply did not apply to the minimum wage law.
But I just stumbled across something another interesting explanation. According to Felix Frankfurter's notes of a conversation he had with Justice Louis Brandeis, Brandeis told him that Radice almost came out the other way, but Justice George Sutherland, who had written the Adkins opinion, switched his vote at the last minute after agonizing over the case for some time. The other Justices still thought the night work ban unconstitutional, but with the Supreme Court under attack (most notably by future Progressive Party candidate Robert LaFollette and Senator William Borah) for issuing controversial 5-4 opinions, and with Sutherland having jumped ship, the other Justices chose not to issue a dissent.
Assuming that Frankfurter's notes accurately describe what went on, instead of a 5-3 vote (with Brandeis recused) split on women's protective laws turning a year later into a nine to zero vote, the 5-3 (plus Brandeis) split was apparently turned into a 5-4 split the other way, with the deciding Justice on the fence in the second case until the last minute.
So, for example, the view expressed by some scholars that the Court invalidated the minimum wage law but not the night work ban because the former allowed corporations to exploit workers through underpayment but the latter did not could only be justified if one could show that this was Justice Sutherland's rationale. But this would be a caricature of Sutherland, who believed in liberty of contract, and was a strong advocate of women's rights, but had an occasional soft spot for what he considered public-spirited regulation, as evidence by his majority opinion upholding zoning laws in Euclid v. Ambler Realty.
In short, if you want to do good constitutional history, don't extrapolate wildly from the reported votes of old Supreme Court cases.
Similarly, the Supreme Court has some throwaway language in Runyon v. McCarary to the effect that the defendants' freedom of association claim was not viable. Many scholars have concluded that the Court rejected an "expression association" claim in that case. In fact, if you read the brief, you find the d's devoted only one paragraph to their association claim, and never mentioned expressive association (a First Amendment right), just some free-floating right to association, which the Court has never found to exist. If my opposing counsel cited Runyon against an expressive association claim, I think pointing out that the ambiguous language in Runyon was not addressing an expressive association claim would be justified, even if you're going outside the opinion itself to prove it.
I could give other example, like Bolling v. Sharpe, which has been interpreted as holding that the Fifth Amendment incorporates the 14th A's equal protection clause, but says no such thing (though later cases do say it).
Finally, I think it does also mean that courts should ignore whether a prior opinion was unanimous or not, because unanimity clearly has not always meant full agreement, or even any agreement, among all the Justices.
From the coverleaf:
From pages 362-363:
I understand that is a correct characterization of the FACTS of Wickard, but the Court indicates that its HOLDING applies to "subsistence farming" because of the interstate commercial nature of farming as a whole and the claim that even subsistence farming could affect that interstate commercial activity.
And that's certainly how Raich-- which after all involved a clearly non-commercial user of medical marijuana-- interpreted Wickard.
In the end, if Wickard really just stood for the proposition that an actual participant in interstate commerce who happens, as part of his business model, to engage in some subsistence farming is within the reach of the federal government, I still might think it wrongly decided but I wouldn't consider it nearly as offensive or bad a decision. But the Court didn't hold that-- it held that ALL subsistence farming was within the scope of Congress' regulatory power because the activity as a whole was interstate and subsistence farming COULD affect interstate commerce. As framed by the Court, the decision is an abomination.
Indeed. I'd argue that particularly the stereotypical 5-4 "party-line" votes are bad for the legitimacy of the court. IIRC, the practice on this point is not required by law, but rather something that the Court or the judiciary decides for itself. I can see why it would be impossible to go to a European single-ruling-for-the-court system, but why not go back to the pre-Marshall House of Lords system, where every justice always writes? I've been reading a lot of House of Lords case law lately, and I find that the absence of an opinion for the court makes it harder to figure out what the court actually said. (Beyond the way the dispose of the case at bar, of course.) That is a good thing in the sense that it tempers the mind, making the whole thing more an exercise in reason rather than a simply parliament-style up or down vote.
It's a bad thing, however, if you are a lower court judge with 4000 cases on the docket trying to figure out what the Supreme Court ruled, and it's also a bad thing if you are a busy lawyer whose client requested you to get an answer back regarding whether something is legal or not within the hour.
In the end, though, the way to figure out "whether something is legal or not" is to check Court of Appeals case law. Their influence on the law is much greater than that of the House of Lords. (Which is why Lord Denning voluntarily went from the Lords to the CoA early in his career.) There are no circuits in the UK, i.e. there is just one Court of Appeals for England and Wales, albeit one with different divisions for different areas of the law. (Scotland and Northern Ireland are separate jurisdictions, with separate courts, statutes, etc.)
Hmm, I think I have heard less contestable propositions.
That gets to the nub of it. On the HL he was just one dissenting voice, but given how few CA cases went to the Lords, he could 'tweak' the law quite substantially from the CA. However the CA was of course strictly bound by the HL, despite one or two valiant dissents to the contrary. But that Denning was more influential on the CA does not the CA more influential than the HL make.
I think dissents are essential to a coherent judicial tradition. They provide an alternative perspective and a means of changing bad decisions without completely rupturing with the precedential chain. However, it is certainly better for as many judges as possible to join to as many decisions as possible.
DB, yes I do agree that it is essential to consider the actual facts of every case, as well as what was actually in dispute, and even the context of the dispute. For example, there might be a case where on some peculiar facts a more common remedy was not available, which might be grounds for reading that case narrowly, or there might be a case in which the actual decision appears at odds with a lot of the reasons, and then it may be that the facts did not speak for themselves - in that last circumstance in particular broader research can be particularly useful.
But the Judges' ex judicia comments, no, I don't see how they can be relevant, let alone admissible.
You think Wickard was wrongly decided? Or I am misinterpreting your previous post.
I would agree, though, that writing the rulings in this way reduces the power of the highest court relative to the lower appellate courts, which is probably why Marshall stopped doing it. But that's not necessarily a bad thing, especially when the highest court suffers from being perceived as too political.
translation: standing up for the right to work for 50 cents an hour.
That kind of snark pisses me off for so many reasons. That's despite not supporting constitutional protection for liberty of contract.
1) They are no more "standing up for the right to work for 50 cents an hour" than the court was standing up for the right to preach white supremacy and nazi propaganda in the Skokie case.
2) The comment implies somehow the court is making the poor worse off. That's a tough and very unclear economic issue. Have you carefully read through the literature and data about the effects of the minimum wage or are you just going on your gut?
3) Even for someone like me who favors a more dynamic judiciary it seems really inappropriate to demand the court examine subtle questions of economic impact before deciding on the scope of constitutional rights. The particulars of the impact of the minimum wage shouldn't make a difference.
Of course Wickard was wrongly decided. The Constitution is quite clear both in (1) limiting Congress to enumerated powers, with SOME room to maneuver using the necessary and proper clause but also with powers reserved to the States under the 10th Amendment, and (2) specifically limiting the power to regulate commerce to commerce "among the several states" (as well as foreign commerce and commerce with Indian tribes). Thus, any plausible reading of the Commerce Clause must exclude purely local activities.
Now I am not where Thomas is on this. I do think that simply because of the natural progression of travel, transportation, computer networking, national and multinational companies, etc., a lot more commerce is plausibly "interstate" than used to be. So Congress definitely has a greater commerce power now than it did in 1787. But if the commerce power applies to purely local activities, then the commerce clause, the general scheme of enumerated congressional powers, and the 10th Amendment all are meaningless.
So cases like Wickard and Raich are wrongly decided because they involve purely local activities-- growing wheat for your own consumption (and your livestock's), and growing pot for your own consumption. The best reading, I think, is that if Congress is either regulating something crossing state lines OR limits the regulation to items that have crossed state lines, it is constitutional. But the federal government has no power under the commerce clause to regulate activities that occur purely within the borders of one state and which do not have any connection to interstate commerce. That preserves the states' power to regulate their local activities, which the Constitution clearly is supposed to do.
Lopez is clearly right. That's essentially a local zoning regulation, and there's no way that local zoning is a matter of interstate commerce.
Morrison is a tougher case, but not because of the Commerce Clause. Rather, I think you can make an argument that the Courts have read the enforcement power under the 14th Amendment too narrowly, in that the clear intention was to confer Congress with almost plenary power to act as it saw fit to ensure that all citizens were afforded the equal protection of the laws. In other words, if Congress concludes that state domestic violence enforcement is inadequate, and that a federal violence against women statute is necessary to ensure gender equality, that is quite arguably acting to enforce the equal protection of the laws.
But interstate commerce? No way is domestic violence interstate commerce.
So much for the Court being an olympian body unaffected by politics and public pressure
I often read the dissent before tackling the majority opinion. Strangely, I find that I agree with Thomas much more when he is dissenting than when he writes the majority opinion.
I often do this too, but partly just because I don't have infinite time to read opinions, and dissents tend to highlight the disputed points more concisely. Majority opinions require wading through recitation of undisputed facts, background information, parts of the legal analysis that aren't controversial, etc.
Are you seriously going to argue that Lochner was correctly decided?
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