Archive | Judicial Power

Are Conservative Judges Better? Evidence from Geoff Stone

Prof. Geoff Stone argues that conservative Supreme Court justices are more ideologically inflexible and less meritocratic than their liberal counterparts. His evidence for this is that

Of the 20 law clerks appointed this Term by the five conservative Justices — Roberts, Scalia, Kennedy, Thomas and Alito, 18 of the 20 — or an astonishing 90 percent — clerked last year for a Republican-appointed judge. Of the 16 law clerks appointed this Term by the four more liberal Justices — Ginsburg, Breyer, Sotomayor and Kagan, only 9 of the 16 — or 56 percent — clerked last year for a Democratic-appointed judge.

I would not rest any theory on this information, but if I would, it could easily support quite different explanations.

1) Given that the court picks clerks every year, data from one year is not very interesting; there are no doubt fluctuations. Any serious discussion of the issue would require looking across a period of year. I understand Stone may not have wanted to this – any more than I do – but then it is probably not fair to say one year’s hiring “shows” anything. Prof. Brian Leiter surprisingly calls this “hiring patterns,” but I don’t see how one year can be a pattern.

Indeed, the numbers Stone cites sound impressive in terms of percentages, but are really just a difference of a few clerks. Stone admits this is just a “tidbit,” but then goes on to say it “reveals… what is really going on.”

2) Now assuming this “pattern” is true, one possible explanation is that there is more conservative-to-liberal drift on the bench than vice versa. Thus there are more Republican-appointed judges with liberal tendencies than vice-versa.

3) Perhaps Stone should have called his article “The difference between conservative and liberal JUDGES.” The relatively [...]

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Justice Kennedy on Judicial Intervention

In remarks at the University of Pennsylvania, Justice Anthony Kennedy lamented the state of American democracy, according to this AP report.

“Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy,” Kennedy said Thursday at the University of Pennsylvania

“I just don’t think that a democracy is responsible if it doesn’t have a political, rational, respectful, decent discourse so it can solve these problems before they come to the court.”

These comments strike me as somewhat odd, particularly coming from Justice Kennedy.  Unless he was talking issues like political gerrymandering, it seems to me that Justice Kennedy’s concerns are a bit misplaced, particularly in light of his own jurisprudence.

Contra Kennedy, American society does not “rely” upon the supreme Court “to resolve the most serious issues of the day.”  It is relatively rare that the Court is called on to settle a political or other dispute that cannot be resolved through ordinary political means (although the resolution might not be to some of our liking). In most cases, the Supreme Court intervenes not to help the democratic process to function, but rather to alter the way in which these questions have been resolved.  Moreover, Justice Kennedy is more prone to support such intervention than most of his colleagues, having voted to invalidate DOMA, Section 4 of the Voting Rights Act, McCain-Feingold, the PPACA, the Stolen Valor Act, and so on.  The only sense in which these questions were not “solved” before they came to the Court is in that the resolution was not that which Justice Kennedy would have preferred (or which Justice Kennedy believed is constitutionally compelled).

Take the issue of gay marriage, for example. The political process has been addressing that issue.  Numerous states have [...]

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Is there a Generational Divide over “Judicial Restraint” Between Reaganites and Libertarians?

Various commentators such as Garrett Epps, Mark Tushnet, and recent guest-blogger Josh Blackman argue that there is a generational divide among right of center jurists between Reaganite advocates of “judicial restraint” and later, more libertarian figures who are less willing to defer to legislatures and more eager to strike down laws they consider unconstitutional. They argue that this divide is exemplified by the the Supreme Court’s decision in NFIB v. Sebelius, where Chief Justice John Roberts voted to uphold the individual health insurance mandate as a tax, while other conservative justices voted to strike it down. As Epps puts it, Roberts voted the way he did because “his is the conservatism of the 1980s rather than the new, more aggressive version minted for the Age of Obama.” As a veteran of the Reagan-era Justice Department, Roberts supposedly imbibed the ideology of judicial restraint, from which later conservatives have departed.

I. Federalism and Reagan’s Judicial Appointees.

This thesis fundamentally misconceives the dominant constitutional vision of the Reagan administration and most of the jurists associated with it. In the individual mandate case, both of the actual Reagan appointees still on the Court – Justices Antonin Scalia and Anthony Kennedy – voted to strike down the law. If they had still been on the Court, Reagan’s two other appointees, Sandra Day O’Connor and William Rehnquist (whom Reagan promoted to Chief Justice), would likely have voted the same way, based on their longstanding advocacy of strong judicial enforcement of limits on federal power and their dissents in Gonzales v. Raich (in which case Scalia and Kennedy voted to uphold the law).

Reagan also nominated numerous leading libertarians and pro-federalism conservatives to the lower courts, including such well-known libertarian and libertarian-leaning jurists as Alex Koziniski, Douglas Ginsburg, Stephen Williams, Jerry Smith, and [...]

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Sherry (again) on Somin and Kerr

I don’t know how Ilya and Orin and other bloggers do it. Like me, they have day jobs, but they seem to find time to write multiple careful and thoughtful posts! The press of other work means that this will probably be my last post, so I’ll try to be concise and complete. I thank the Volokh Conspiracy for the opportunity to have such an interesting exchange.

Ilya’s comments are immensely helpful in forcing me to articulate just what I mean by universally condemned cases. They are neither cases that cannot possibly be justified as legally correct (as Ilya characterizes my definition) nor cases that academics dislike (as Orin does). They are cases that everybody today would decide the other way, whether or not they were writing on a blank precedential slate.

I don’t believe that many constitutional decisions, especially at the Supreme Court level, can be divided into two distinct categories of “legally correct” and “legally incorrect.” Almost all constitutional cases could plausibly come out either way on the law. So it is certainly possible for a case like Korematsu to be both “legally correct” and “morally abhorrent,” but a case striking down the relocation and internment orders would also be legally correct (and not morally abhorrent).

If you asked people today – including the members of the public that Orin thinks are ignorant of Supreme Court decisions – whether the government should be allowed to put loyal American citizens in concentration camps because of their ancestry, I can’t imagine that anyone would find it acceptable. Maybe that’s just me projecting my elite academic preferences onto the general public, but I certainly hope not.

A universally condemned case, then, is one that is, in Ilya’s terms, universally viewed as morally abhorrent. It doesn’t matter that it has its legal [...]

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A Response to Kerr and Somin on Sherry

Orin Kerr and Ilya Somin have posted thoughtful responses to my essay, Why We Need More Judicial Activism, on which the Green Bag recently published a micro-symposium. Orin’s and Ilya’s posts deserve what I hope will be an equally thoughtful reply, and I thank Eugene Volokh for allowing me to post this reply as a guest-blogger.

In my essay, I suggest that judicial activism is consistent with both general constitutional theory and the history – or original meaning – of our particular Constitution. Others have made similar arguments about judicial review, and I simply extend them to activist judicial review. But I add what I think is an original argument: If we look at what the Supreme Court has actually done, we are more likely to regret the cases in which the Court upheld governmental actions than the cases in which the Court invalidated governmental actions.

In other words, with hindsight we are more likely to regret too much deference than too much activism. If we can’t expect the Court to get it right every time, we are therefore better off with a Court that errs on the side of being activist.

The tricky part is identifying the cases that we think are mistaken. Almost every case the Supreme Court decides has both its opponents and its defenders. I wanted to avoid taking sides in ongoing debates, or specifying the criteria that make a case wrong, because doing either would simply replicate the politicized debates over individual cases.

One alternative to specifying cases or criteria is to focus on the cases that just about everyone thinks are right and/or the cases that just about everyone thinks are wrong. In the absence of very many (or any) cases that everybody thinks are right, I focus instead on cases that [...]

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Is citizen control of taxes and spending unconstitutional?

Colorado’s Constitution (Art. X, sect. 20) is the Taxpayer’s Bill of Rights. Like similar provisions in other states, Colorado’s TABOR requires voter approval for tax increases, and for most spending increases that exceed inflation plus population growth. Several state legislators have filed suit in federal court to have TABOR declared unconstitutional. Allegedly, requiring voter approval for tax or spending increases violates Article IV, sect. 4 of the U.S. Constitution, which provides: “The United States shall guarantee to every State a Republican Form of Government. . . .”

In federal district court, the Colorado Attorney General filed a motion to dismiss Kerr v. Hickenlooper, based on the argument that RFOG claims are non-justiciable. That motion was denied, and the case is currently on interlocutory appeal to the 10th Circuit.

On Friday, I filed an amicus brief on behalf of the Independence Institute and the Cato Institute. The brief draws heavily from Rob Natelson’s article, A Republic, Not a Democracy? Initiative, Referendum, and the Constitution’s Guarantee Clause. 80 Texas Law Review 807 (2002). Natelson shows that the Founders consistently used the words “republic” or “republican” to refer to governments which had direct democracy. As the brief summarizes an analysis of every known Founding-Era dictionary: “Not one of these sixteen definitions from nine different Founding-Era definitions contained the least suggestion that a republic had to be purely representative.”

Moreover, the Supreme Court, in Luther v. Borden and Minor v. Happersett, has stated that the admission of a State into the Union is a conclusive determination that the State, at the time of admission, had a Republican Form of Government. Significantly:

In 1907, Congress admitted Oklahoma into the Union, although Oklahoma’s Constitution contained very strong provisions for initiative and referendum (Okla. Const., art. V, §§1-7) and provided for a mandatory

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President Obama versus the Constitution

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every

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Gingrich on Judicial Review

Former Speaker and presidential hopeful Newt Gingrich has been turning heads with his comments on “judicial activism” and the “Arrogant overreach” of federal judges. From the WSJ:

Republican presidential candidate Newt Gingrich came out swinging Saturday against the nation’s legal system, pledging if elected to defy Supreme Court rulings with which he disagrees and declaring that a 200-year-old principle of American government, judicial review to ensure that the political branches obey the Constitution, had been “grossly overstated.”

Courts “are forcing us into a constitutional crisis because of their arrogant overreach,” Mr. Gingrich told reporters in a Saturday conference call. He repeatedly blasted federal judges for imposing “elitist opinion” on the rest of the country. . . .

“Do we really believe that all the intricate systems that we have created should come down to one lawyer?” he said. “The courts are too aggressive, and the courts have been trying to impose an elitist value system on a country that’s inherently not elitist.”

He pointed to a position paper on his campaign website, which states that “should the Supreme Court issue decisions during a Gingrich administration that unconstitutionally empower federal judges with certain national security responsibilities, such decisions will be ignored.”

Here is the campaign white paper to which Gingrich referred.

Asked about these quotes on CBS’ Talk of the Nation this morning, Gingrich did not back off, and suggested that disputes among the three branches on constitutional questions should be decided “two out of three.”

Citing what he describes as “extreme behavior” on the party of the judicial system, Gingrich proposes a system wherein “it’s always two out of three.”

“If the Congress and the court say the president is wrong, in the end the president would lose. And if the president and the court agreed, the Congress

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Kill Calder v. Jones!

It sounds like a good Civ Pro 101 (or, perhaps, Cyberlaw 101) exam hypothetical :

“Your client, Scott Roberts, a Virginia resident, purchased a Pontiac engine block from Kauffman Racing Equipment, L.L.C., an Ohio-based company that builds automotive equipment and sells it to the public. Roberts purchased the engine block after viewing it on Kauffman’s website. Roberts did not travel to Ohio; indeed, he has never been to that State. After Roberts received the engine, he found it defective, but after various exchanges of communications between Roberts and Kauffman, Kauffman refused to refund Roberts’ purchase price. Roberts then began a campaign of posting comments criticizing Kaufmann on several websites related to automotive equipment. Kauffman alleges that these comments constitute defamation and intentional interference with contracts and business relationships. Question: Based on these facts alone, and assuming no other contacts between Roberts and the state of Ohio, can an Ohio state court exercise personal jurisdiction over Roberts?”

It’s not a hypothetical, but a real case, and Ohio Supreme Court answered in the affirmative, relying on my 3rd-least-favorite Supreme Court case of all time, Calder v. Jones. In Calder, the Court allowed a California court to exercise personal jurisdiction over the authors of an article that a California resident, Shirley Jones, alleged to be defamatory. The authors of the article lived in Florida, and had no contacts with the State of California other than (a) the “knowledge” that Ms. Jones lived in California (and that therefore the “harm” would be felt in California) and (b) the distribution of the allegedly defamatory comments in California.

It’s absurd. A doctrine that allows a finding that you have had the requisite “minimum contacts” with New Mexico sufficient to satisfy the Due Process Clause simply on the grounds that you have said nasty things – [...]

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Assessing the Impact of State Constitutional Amendments Banning Gay Marriage

In this post commenting on the revelation that former Republican National Committee chairman Ken Mehlman is gay, Yale lawprof Jack Balkin argues that the recent spate of state anti-gay marriage constitutional amendments may significantly retard progress towards gay equality:

[Ken] Mehlman was the chair of the Bush 2004 presidential campaign, which deliberately used opposition to same-sex marriage–and indeed, moral opposition to homosexuality–as a way of increasing turnout among members of the Republican base. One way of doing this was to work with anti-SSM groups to schedule votes on state constitutional amendments that would prohibit the recognition of same sex marriage. As a result of this strategy, thirteen states passed such amendments during the 2004 election cycle, followed by a dozen or so more in the next four years.

These amendments matter because they complicate the most obvious path toward marriage equality: proceed state by state and get a majority (or more) of states to recognize same-sex marriage. After that occurs, it is much easier for the federal courts and the Supreme Court to consider a challenge to laws banning same sex marriage.

A few states with such constitutional amendments would not be a very serious obstacle……

The problem is that as a result of the 2004 Bush campaign, a much greater number of states have constitutional amendments that block both ordinary legislation and judicial interpretation of state constitutions. At last count, 29 states had constitutional bans on same sex marriage.

I criticized arguments similar to Balkin’s here, here, and here. To briefly summarize my main points, I doubt that these amendments will have more than a minor effect for two reasons. First, most of them are in states that are unlikely to enact gay marriage anytime soon. Even more importantly, most are in states with easy to [...]

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