Substantive Due Process Is Ready for Takeoff

Clinton appointments to the Supreme Court would endanger constitutional governance in a variety of ways, but one of the most substantial is the creation of rights nowhere to be found in the actual Constitution.  Sadly, the stage has been set for great expansion of such rights by Justice Anthony Kennedy’s Obergefell opinion. It, of course, constitutionalized same-sex marriage.  More importantly for the future, it destroyed the doctrinal restraints on substantive due process—the Court’s minting house for new rights.

Previously the Supreme Court had sharply restricted the rights that could be found in substantive due process. In Washington v. Glucksberg, the Court rejected the argument that the  right to assisted suicide could be found in the Constitution.  The Court read its precedents to require strict objective criteria for the identification of a specific fundamental right: it must be “deeply rooted in this Nation’s history and tradition.” By that strict standard, the right to assisted suicide was a non-starter,  because laws against the practice had long existed.

But same-sex marriage could hardly be termed a right “deeply rooted in the Nation’s history and tradition” either.  In effect, Kennedy said so much the worse for Glucksberg. One reason he gave is that the right to abortion declared in Roe v. Wade itself had  itself not met the Glucksberg test. But the right of  abortion had persisted in Planned Parenthood v. Casey not because Roe was substantively correct, but only because it was a precedent. Thus, Roe hardly should be taken as generative model for substantive due process.

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The Decline of the Western

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Tired of rants about how awful capitalism is? Here’s a fun trick: ask the people you’re discussing it with not to use the term “capitalism.” Politely suggest: since we seem to mean different things by it, let’s just say what we mean without using that one word. It might induce them to think, instead of grabbing pre-fab terms of abuse off the shelf and blaming every problem on that villain from central casting, the capitalist.

Emotionally loaded and so vague as to be almost useless, the word “capitalism” masks the massive phenomenon’s complexity—its fuel in varied motives, its entwinement with a legal order, and (most importantly) its moral ambiguities and mixed blessings.

But aren’t you bored? Thinking is just so . . . boring. Let’s complain about capitalism instead.

The new Magnificent Seven remakes John Sturges’ 1960 classic of the same name and has lots of complaining to do about “capitalism,” at the expense of its predecessor’s subtle and interesting civilizational themes.

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Not-So-Compact State Taxation

Last week, the shorthanded Supreme Court bounced back into action with orders on the pending clutter of cases. Among a slew of cert denials, some grants in mostly tedious cases, a handful of CVSG’s (Call for the views of the Solicitor General), and a gaggle of housekeeping orders, there was a relist in The Gillette Company v. California Franchise Tax Board. The humble Question Presented is whether the Multistate Tax Compact has the status of a contract that binds its signatory States. Gillette and a bunch of other companies say “yes.” California says the Compact was just a good-natured joke, and the California Supreme Court agreed.

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The Inconsistency of Justice Scalia’s Originalism

With the passing of Justice Scalia, various critics of the justice have made a sport of trying to point out areas where the justice might not have lived up to his own originalist principles.  I certainly think it is important for all justices, especially originalist justices, to follow originalist principles.  But I don’t approve of the attempt to use originalist principles as a club to attack originalists who sometimes did not live up to those principles.

It is hard to be a justice.  One does not have the luxury, like a law professor, of simply writing about the issues one feels comfortable discussing.  The issues come up with the cases (even given certiorari at the Supreme Court) and the justices must decide them.  Given the pressures and forces of judicial politics, especially in an age where nonoriginalism has been the dominant view for generations, it is hard to expect an originalist justice to be entirely consistent.

In determining how bad it was that a justice did not follow a principle, one must consider a variety of factors, including how difficult it would be to follow the principle (in terms of matters such as consequences and reputation).  That nonoriginalist justices follow their own political views – which can be adjusted to their own values, to current politics, or to most other things – is not an especially difficult thing.  Thus, comparing an originalist justice who follows originalism only 75% of the time with a nonoriginalist who follows nonoriginalism 95% or 100% of the time is misguided.  It is much harder to be the originalist.

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The Polish Question

PRESIDENTIAL PALACE, WARSAW, POLAND - Polish President Andrzej Duda, The Minister of Family, Labour and Social Policy Elbieta Rafalska (First Right), head of the Chancellery of the President, Magorzata Sadurska (Second from Right). (Photo by Anna Ferensowicz/Getty Images)

The political situation in Poland has attracted the world’s attention. According to conventional wisdom, last year’s electoral victory by the Law and Justice Party was a setback for the democratic evolution of the country. The international media worries that the golden child of post-communist Central and Eastern Europe has gone astray.

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Legal Correctness, Not Popularity with People or Elites, is the Measure of Fairness

I generally like Adam Liptak’s reporting on law, but a recent story poorly frames the question of the stakes in state judicial elections. Liptak reports on two studies that suggest that elected judges are less likely to rule in favor of rights for homosexuals and become harsher on criminal defendants the closer the proximity to an election. At the end of the article he suggests that making judges more accountable to the people is thus in tension with “the utmost fairness,” quoting Chief Justice Robert’s desideratum for the judicial system.

But I hope and believe that what the Chief Justice means by fairness are decisions that follow the law. It certainly should not mean decisions that the left likes. The studies Liptak reports tell us nothing about whether elected judges decide cases more accurately than appointed justices or whether they do so more or less so in the shadow of an election. The inference being made is that public pressure distorts justice. Maybe so. But the important question is whether it makes judicial decision making more or less accurate.

Judges may want to skew their decisions to maximize their chances of reelection. But judges who do not face elections may also want to maximize personal advantages. And the most obvious objective to be maximized is their reputation and that reputation is decided by a subset of the people— lawyers and elites.

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Labor Pains


When thinking about the National Labor Relations Board under President Obama, most observers recall the 2014 decision in NLRB v. Noel Canning, in which the U.S. Supreme Court unanimously ruled that Obama’s kangaroo-court “recess appointments”—made when the Senate was not actually in recess—were invalid.

Noel Canning was a huge setback for the administration, requiring the NLRB to reconsider 700 decisions rendered during the period in which it lacked a legitimate quorum.

Few have noticed, however, that the Board has not altered its course since that defeat.

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Indianapolis Event: Todd Zywicki on Upholding the Rule of Law

Justice Statue

For Indy area readers, please RSVP for this event on October 13 @The Rathskeller to hear the great Todd Zywicki of George Mason's Antonin Scalia Law School speak on the theme of "Upholding the Rule of Law During Times of Crisis." Prof. Zywicki is a regular blogger of Volokh Conspiracy and an occasional contributor to this space. Todd established his public voice on this subject in a range of essays and op-eds that critiqued the Obama administration's method of usurping the rule of law to achieve its political objectives. As we know, there is much more to consider, and so you'll want to attend this…

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Rebuilding the Liberty Narrative: A Conversation with Gordon Lloyd

liberty-equalityThere is nothing more arduous than the apprenticeship of liberty, Tocqueville informs. While equality in modern democratic society is a natural tendency—one that grows without much effort—it is liberty that requires a new defense in each generation. In this spirit the next edition of Liberty Law Talk discusses with Gordon Lloyd the Liberty Narrative and its unending contest with the Equality Narrative.

Constraining the White House Staff

We live in a world where an increasing number of things that are supposed to be done by the Congress are done by the executive.  Treaties are supposed to be approved by the President with the ratification of two thirds of the Senate, but the President makes many agreements on his authority based on a variety of claims.  Legislation is supposed to be passed by Congress but agencies do most of the legislating through rulemaking.  And wrongdoing by executive officials is generally reviewed by executive officials rather than by congressional impeachment.  Some of these actions may be constitutional under the original meaning, but some are not.

Another way that the executive takes action that is supposed to be shared with Congress is through appointments.  The Constitution provides that appointments are to be made by the President with the advice and consent of the Senate, but the President often makes appointments on his own.  Sometimes this was done through a broad understanding of the Recess Appointments Clause (which a majority fo the Supreme Court accepted, but see here for what I regard as the better view).

At other times, the President makes unilateral appointments of the White House staff on the ground that these staff members – however important their positions seem to be – do not constitute officers of the United States under the Appointments Clause.  The reason is that these staff members are said merely to give advice, to engage in nonbinding conversations with officials, or to convey messages from the president to officials – actions that would not involve the exercise of substantial authority and therefore would not implicate the Appointments Clause under the Supreme Court case of Buckley v. Valeo.   The public policy problem is that the number of these White House staff members is growing and therefore the power of the federal government is increasingly exercised by people who have not secured the consent of the Senate.  Again, some of these actions concerning appointments may be constitutional under the original meaning and some may be unconstitutional. 

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