The Incautious Justice Kennedy

While many have celebrated the result in Obergefell v. Hodges, fewer have praised the craftsmanship of Justice Anthony Kennedy’s opinion. That is as it should be because the opinion is longer on sentiment and empathy than legal analysis. And yet it is now as much a part of the United States Reporter as the most well-reasoned judgment. Thus, it is worth looking at its doctrinal implications, none of which are happy.

First, Kennedy consciously removes the historical constraints on the Court’s ability to declare new fundamental rights.  Washington v. Glucksberg (1997), the most important modern substantive due process case, required fundamental rights to be deeply rooted in the history and tradition of America. Whatever else can be said about it, same-sex marriage does not begin to meet that test. Kennedy says correctly that some other substantive due process cases did not meet that test either (Roe comes obviously to mind). While Kennedy does not quite say that he is overruling Glucksberg altogether, its relevance has been gravely weakened. Justices seem free to look to their views on the nature of justice rather than history to discern new fundamental rights.

While some libertarians in the past have been enthusiastic about this development, it is unlikely the Court will use this power to pursue economic liberties. I think this development is likelier to revive claims that some other social rights, like the right to assisted suicide, are also constitutional ones.

Kennedy also gestured to the equal protection clause in his decision.

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San Francisco Defies the Right to Arms

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Karl Llewellyn’s classic Bramble Bush introduces law students to the case method and explains that precedents have both a minimum and a maximum value.  Playing within that field and finding the point in both directions “beyond which it does not make sense to go” is central to establishing the fair meaning of judicial decisions.  When one is moved, as I am here, to brand the city hall shenanigans that lead to the litigation in Jackson v. San Francisco, as blatant defiance of the Supreme Court’s decisions affirming the individual right to arms, Llewellyn’s instructions help to slow and unpack that reflex.

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Originalists Need a Distinctive Theory of Precedent

In Comptroller v. Wynne, the Supreme Court this week invalidated a Maryland tax on the basis of the dormant commerce clause, despite claims by Justice Antonin Scalia and Justice Clarence Thomas in dissent that the dormant commerce clause is not grounded in the original meaning of the Constitution. Michael Greve celebrated the majority’s choice to follow long established dormant commerce clause precedent and implicitly suggested that Wynne provides evidence that originalism is an implausible and even futile interpretive theory.

Michael is half-right. Originalism is certainly an inadequate theory if it cannot find a principled approach to precedent, like that on which the Wynn majority relied. Certainly, it is not politically possible for the Court to discard settled precedent when to do so would have enormous costs for society or when the precedents have become as accepted as constitutional provisions themselves. But, as Mike Rappaport and I have argued, the Constitution contemplates that justices will follow precedent. Moreover, sensible precedent rules are available that preserve the bite of originalism and still permit the Court to affirm a substantial number of well-established precedents.

Thus, my criticism of the opinions in Wynne is quite different from Michael’s.

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Creating a Unitary Supreme Court

I am grateful for Michael Greve’s post on my analysis of Our Two Supreme Courts. I wholly agree with his positive point. The political or aristocratic Court comes to the fore not only in constitutional cases, but in statutory interpretation cases that implicate constitutional values or important political issues. Preemption is a fine example because the broader is the scope of preemption, the more limited is the authority of the states.

I am in less agreement with his normative point. I had argued that the way to dissolve the difference between the legal and the political court was for the Court always to take the same formalist approach that it does in ordinary statutory cases, like interpreting the bankruptcy code. Michael doubts that such formalism is regularly  possible in constitutional law because of the open ended nature of constitutional provisions. But Mike Rappaport and I have argued previously that the common claims that constitutional provisions are abstract and need to be filled in by judges may well be false. Once we know more about their history, we can often determine a clearer meaning of the constitutional provision at issue.

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Thomas’s Full-Throated Originalism: Ralph Rossum Responds

I am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there.

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One of the “Most Activist Judges We Have Right Now”

When Justice John Paul Stevens retired from the U.S. Supreme Court in 2010, Senate Judiciary Chairman Patrick Leahy complained that “We have right now a very, very activist, conservative activist, Supreme Court. . . . I would hope that the president’s nominee can get us back away from that.” Leahy was, presumably, quite happy with the nomination of Elena Kagan to succeed Stevens.

In her short time on the bench, Justice Kagan has closely followed the voting pattern of Justice Ruth Bader Ginsburg. On the other hand, Justice Clarence Thomas has been singled out by Senator Leahy as one of the “most activist judges we have right now,” and by activist he meant judges who “would strike down a law passed by the people and substitute something of their own,” and Justice Samuel Alito has been denounced as a pivotal figure in the “divisive” and “activist conservative bloc” on the Roberts Court.

So which of these justices most often votes to strike down laws “passed by the people”? The answer is

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Toobin’s Disgrace

clarence-thomasJeffrey Toobin’s recent article in The New Yorker, “Clarence Thomas’s Disgraceful Silence,” is itself disgraceful. Toobin noted that, as of February 22, eight years have passed since Justice Thomas last asked a question during a Supreme Court oral argument. Toobin finds Thomas’s silence “bizarre” and “downright embarrassing, for himself and for the institution he represents.”

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Ralph Rossum on Understanding Clarence Thomas

In my view, when historians look back on this period of the Supreme Court, Justice Clarence Thomas will be seen as extremely important justice. While Justice Scalia will be seen as the justice who initially developed modern originalism on the Court, Justice Thomas will be seen as the justice who most consistently pursued the doctrine. Although Thomas’s decisions may have fewer adherents on the Supreme Court, he has exerted influence in other ways by making previous positions that were not discussed in government bodies – such as returning to the pre-New Deal Commerce Clause – to be part of the conversation. His differences with Justice Scalia also shows to the world that originalism comes in various stripes.

It is therefore a welcome event that Ralph Rossum is publishing a new book on Justice Thomas’s jurisprudence. Rossum’s other work suggests that this is likely to be an excellent book and is one that I hope to read in the near future. Here is a description of the book:

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