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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Our Postmodern Bill of Rights

WE THE PEOPLE written in vintage letterpress type

Last week, John McGinnis had a characteristically insightful post on Our Two Supreme Courts. One is the political court—an aristocratic institution that restrains public passions. On that court, the justices vote their preferences on God, guns, and gays. The other is the legal court, which takes care of boring jurisdictional and CivPro-ey stuff and where the justices, acting as the good lawyers they are, often reach unanimous decisions. The only way to reunite the courts, John writes, is for the justices to bring the legal rigor that’s on display in ERISA or bankruptcy cases to bear on the high-falutin’ ConLaw issues.

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Our Two Supreme Courts

Speaking at Northwestern University Law School this semester, Justice Elena Kagan may have revealed more than she intended.  Amidst her entertaining and witty remarks, she described two very different kinds of discussions that take place at the conferences where the justices decide cases.  In shorter conferences, the justices, in order of seniority, with the Chief going first, state their votes with brief statements of reasons.  Justice Kagan observed that shorter conferences tend to be the high profile cases that appear on the front page of the newspaper.  She surmised that further debate in these cases would likely make her colleagues irritated with those of opposing views.

She then described longer conferences, where the justices after stating their positions—sometimes tentative ones– entertain more general deliberations, trying to figure out exactly what the right answer should be.  They then focus on and often resolve thorny legal questions.  Justice Kagan said that during her time on the Court one of the longest conferences revolved around an obscure jurisdictional issue of the kind that would draw no public attention.

Justice Kagan’s remarks are consistent with my view that we have not one but two Supreme Courts. One is a political court, in which the justices play the aristocratic element in a mixed political regime. Today our aristocratic element consists not of landed nobles but the cognitive elite well represented in judiciary by those who graduated from the nation’s best law schools.

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James Buckley at 90: Still a Hero of the Republic

I had the good fortune to be asked to review Saving Congress from Itself by James L. Buckley, a statesman I have long admired.  As I say in the opening of the review that appears in this week’s print edition of National Review: My first vote remains my best. It was for James L. Buckley’s reelection as a United States senator from New York. In six years in office, he had shown himself fearlessly principled, whether in calling for Nixon’s resignation in the Watergate scandal before any other conservative in Congress or in opposing a taxpayer bailout for New York City,…

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Same-Sex Marriage, the Political Process and Judicial Manipulation

There is a new meme circulating among journalists about the Supreme Court’s decision not to take certiorari in the same sex-marriage cases. According to the left-liberal Jeffrey Toobin, the Court’s decisions allow the “political process to go forward, one state at a time.” Or as David Brooks, a moderate conservative, said at greater length: “Sometimes, you just let the country have its way, and you don’t try to determine the shape of the country. You sort of modestly step back and let the country figure out what it believes. And I think they’re doing absolutely the right thing in just withdrawing and not getting too involved.”

Whatever one thinks of same-sex marriage (and I favor it as a policy matter), these claims completely distort the truth. The Supreme Court is letting go forward a judicial process that permits courts to invalidate traditional marriage laws if they think such a decision would best reflect the signals the Court itself has previously sent on the subject.  In contrast,  a political process would allow states—principally their legislatures and people—to make decisions about same-sex marriage, one state at a time.

The journalists’ claims are even more disingenuous because of the way the Supreme Court has set the stage for the lower courts.

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The Deflation of Rights

Supreme Court Hears Oral Arguments On Arizona Immigration LawPrint up a bunch of money, and the value of money is almost sure to decline. Make up a host of new rights and the value of rights is likely to plummet as well. As our modern experience demonstrates.

Simplifying, we might imagine three stages in the devaluation of rights. In stage one (which, like the “state of nature,” probably never quite existed), a right would be categorical. If you have a right to freedom of speech, say, this would mean that you can say whatever you want (at least within the scope of the right’s coverage) and the government cannot sanction or restrict you. Period. Justice Black sometimes talked as if freedom of speech were or should be an absolute right. The average lay person may sometimes think this is what a right means.

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When the Justices Talk about the Constitution outside the Court

Professor Ross Davies has a cool new article in the Green Bag, titled “Extrajudicial Reticence: Nine Justices Take a Brief Break from Constitutional Commentary.” Davies draws attention to a curious episode in Supreme Court history, where Life Magazine asked each of the Justices to write a commentary on one of the Amendments in the Bill of Rights. Davies notes that for, perhaps the first and only time ever–briefly in 1991–the Justices decided not to weigh in on the Constitution outside the Court.

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Religious Exemptions to Anti-Discrimination Laws under RFRA

Now that the debate over Arizona’s SB 1062 bill is over, it is worthwhile to pause and think about some of the legal implications of carving out religious exemptions for generally applicable anti-discrimination law. Specifically, does the federal Religious Freedom Restoration Act (which was virtually identical to the provision proposed in Arizona) offer a defense for a private claim of discrimination.

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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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Recess Appointments: A Final Quick Pre-Argument Note

NLRB v. Noel Canning is to be argued tomorrow (or today, depending on when you read this). The Court has ordered extended argument (90 minutes), and there’s an interesting twist: fifteen minutes on the respondents’ side have been given to Senator Mitch McConnell and 44 other Senators. Appearing as amici, the Senators insist that the Senate was in fact in session when the disputed recess appointments were made. If that’s right, the two questions that have engendered so much heated dispute—the question of intra- versus inter-session “recess(es),” and the question of whether the executive power to make such appointments covers…

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