Don’t Further Politicize the Court

Rick Hasen has called for making Supreme Court appointments  an important part of 2016 political campaign. What is distinctive about his argument is that he drops all pretense of appointing justices based on their jurisprudence or methods of legal analysis. He just wants a series of left-liberal results that he characterizes as civil right decisions, although some of these results, like overruling Citizens United, actually take away civil rights exercised against the majority. He wants to further politicize the Court.  He is kind enough to quote me as arguing for depoliticization: The Court should act apolitically by applying the same formal methods in highly contested constitutional cases that it does in garden variety cases, such as the bankruptcy code.

Hasen dismisses this possibility and in particular the most important tool for doing so– originalism. But his arguments are very weak. He observes that at times Scalia and Thomas—both originalists—disagree. But of course no methodology eliminates all disagreement, even if  it depoliticizes that disagreement by forcing justices to look at the empirical facts rather than to their preferences. And in any event Scalia and Thomas have some of the highest rates of agreement of any two justices on the Court.

Hasen also argues that terms like equal protection are sufficiently vague to permit alternative legitimate methods of giving effect to the Constitution.  But he makes no effort to legitimate or even describe these methods other than to argue that they can help achieve what he views as good political results.

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Garrett Epps in the Atlantic on Clarence Thomas

In the Atlantic, Garrett Epps has a piece on Clarence Thomas.  I like Epps.  He has been to two of the Originalist Conferences that I run and his presentations and writing are lively, entertaining, and thoughtful.  And his book on the 14th Amendment was quite enjoyable.  But Epps’s politics are far to the left of Clarence Thomas’s and therefore it is not surprising that he is very critical of Thomas.  In fact, I think Epps was quite unfair to Thomas.  I thought I would respond to some of his major points.

First, Epps starts his piece discussing how Thomas’s confirmation involved charges by Anita Hill that Thomas had sexually harassed her during their tenures at the EEOC.  Epps notes that the “experience left him embittered.”  While Epps sort of presents both sides, he neglects an obvious inference.  The most likely reason that Thomas would have been so embittered by the experience is that he believed the charges were false.  To be clear, I don’t know what happened between the two.  But the failure to note this obvious explanation for Thomas’s reaction is disappointing.

Second, Epps complains that Thomas’s dissent in Obergfell, the same sex marriage case, did not mention the “key gay-rights precedents.”  This complaint is curious.  Thomas joined the three other dissents, which did mention these precedents.  Thomas wrote separately to discuss the original meaning.  Since Thomas had already indicated that he did not believe these dissents reflected the original meaning, he did not need to do so again. 

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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


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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