Thursday, July 28, 2005

This Casing Isn't Kosher

Professor Vikram David Amar has an editorial in yesterday's New York Times, "Casing John Roberts," that provides some interesting ideas about how the Senate should approach the confirmation process for Judge John Roberts. The first part sounds familiar (second paragraph here) and makes a lot of sense:

In its confirmation hearings, the Senate should ask Judge John G. Roberts to analyze specific cases that have come before the Supreme Court in the past. That is the only way to get a meaningful sense of where he may move the nation's jurisprudence.

And yet many senators have said that while they may properly ask a nominee about his general approach to judging and interpretation, they should not ask for detailed views about actual cases, because in doing so they will force the nominee to prejudge issues that may come before him later.

This is nonsense. Of course the nominee should not make, or be asked to make, promises about future rulings. But the disclosure of specific views about past cases does not commit the judge to rule in any particular way in the future. He remains free to change his mind if he is persuaded by sound legal arguments, the same way sitting justices are free to do so.
A bit later, he suggests that the senators on the Judiciary Committee "should spend August compiling their short lists of cases [Supreme Court rulings] to bring up at the hearings." I'm still with him. He then lists five recent blockbusters on his short list, with some of his comments. I did my own reading up on these cases, and my comments are in green.

GRUTTER v. BOLLINGER (2003) Justice Sandra Day O'Connor led four others in allowing the University of Michigan Law School to consider race in admissions in order to assemble a diverse student body. To agree with the four dissenters is to condemn virtually all race-based programs. It is also to minimize or ignore national reliance on Justice Lewis Powell's writing in University of California v. Bakke, an opinion 25 years earlier that embraced careful race-based diversity plans.

That this use of race-based preferences was "careful" is succinctly refuted in Justice Scalia's opinion in the case:

I join the opinion of The Chief Justice. As he demonstrates, the University of Michigan Law School's mystical "critical mass" justification for its discrimination by race challenges even the most gullible mind. The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions.

If "virtually all race-based programs" at state-sponsored institutions are appropriately described as such, then they should be condemned.

STENBERG v. CARHART (2000) In another 5-4 ruling with Justice O'Connor in the majority, the court struck down Nebraska's ban on late-term abortions. The Stenberg opinions reflect three distinct positions on Roe v. Wade: overrule it (Chief Justice Rehnquist, and Justices Antonin Scalia and Clarence Thomas); preserve it, but limited to its narrowest core (Anthony Kennedy); or apply its protections more expansively (the majority).

It is hard to see why this case would make the short list. It basically came down to whether any law restricting abortions (in this case, a ban on partial birth abortions) had to contain an exception regarding the health of the mother, as Justice O'Connor insisted. Evidence was presented that suggested that the health of the mother would not be better protected by this method than others, and Roberts could simply agree with that and move on. The abortion case on my short list would be Planned Parenthood v. Casey (1992), which provided several modifications of the "right to choose" that would give a better picture of the nominee's views.

ATKINS v. VIRGINIA (2002) A majority of six (including Justice O'Connor) held that executing mentally retarded criminals violates the Eighth Amendment ban on cruel and unusual punishment. The opinions assess the relevance of foreign law to constitutional rights, and they discuss whether and how the Constitution's meaning evolves.

This is a good case to ask about. I think the majority opinion in this case was judicial overreach. I cannot say it any better than Chief Justice Rehnquist in the opening of his dissenting opinion:

The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e., those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime.

If a nominee doesn't agree with this reasoning, I would be concerned. It is not about whether I would support legislation that allowed the execution of this group of criminals. It is about whether the authority to make such a decision resides with the state legislatures or not. I see no reason why it doesn't.

McCREARY COUNTY v. A.C.L.U. (2005) Justice O'Connor joined four others to end Kentucky's display of the Ten Commandments in its courtrooms. To embrace the dissents is to abandon the requirement of government neutrality toward religion and instead to permit significant government promotion of Christian doctrine.

I think this is another interesting case to ask about (though less interesting than those that pertain to the Constitutionality of, say, vouchers that allow children to attend parochial schools instead of public ones). As with the Grutter case above, I think Amar's characterization of the dissents is overstated. He cannot really be arguing that the laws of Kentucky bear no influence of the Ten Commandments. A prominent display of the Ten Commandments in a courthouse does not establish a religion, nor does it inhibit the free exercise of the religion. So what's the problem? I would like to know Judge Roberts' views on the First Amendment and religion in the public sphere, from the Everson (1947) case to the present.

SEMINOLE TRIBE v. FLORIDA (1996) In this seemingly technical 11th Amendment dispute about whether states can be sued in federal courts, Justice O'Connor joined four others to override Congress's will and protect state prerogatives, even though the text of the Constitution contradicts this result. Questions about this case will test the nominee's commitment to carefully following the literal text of the constitution.

I confess, I cannot follow the issues here. This will be the part of the hearings where I channel surf--or blog.

I enjoyed the exercise of going through the various cases as an amateur. It is interesting to see what parts of the Constitution and subsequent laws where we will insist on neutrality in our public institutions and where we will not--in my case, race and religion, respectively.

Other blogs commenting on this post


Bibamus said...

I liked the Amar column also - I think that asking the nominee about past cases is a fair and reasonable tack.

Of course, I disagree with your interpretation of where the court has made correct or incorrect judgements on some of these cases, but then that is precisely the point of raising these questions. So I understand that the point here isn't to start a debate.

That said, I do think you are too flippant about the McCREARY COUNTY v. ACLU decision. Let's assume for the moment that the Kentucky display was actually put up to recognize the 'influence' of the Ten Commandments on modern Kentucky law (although, seriously, what, maybe 30% of the Commandments are enforceable under modern law? so how crazy is it to deny their influence?). Further, let me grant you the position that since the display "does not establish a religion, nor does it inhibit the free exercise of the religion" it is not unconstitutional (although your paraphrase omits relevant clauses like "make no law regarding...").

Even granting these two things, how can your response really be, "So what's the problem?" Even if these displays are constitutional, the 'problems' with them are manifest. Maybe you have been living in Hanover for too long, but in places like Kentucky the intent in putting up displays like this is quite clear: to imply to observers that the United States is in some sense a Christian nation (I doubt the Jewish - or for that matter, Catholic - population of Kentucky had anything to do with this), and to send a clear signal to people who do not subscribe to the majority religion that they are somehow less than full members of the community. In a pluralistic society this kind of behavior by our government is simply unacceptable, even if it is constitutional. We should be clear about that.

Robert Schwartz said...

The Seminole Tribe Case is a tough one. I would have to go back through the relevant case law and constitutional history to see if the Court was just making it up or whether the ruling was well grounded. I am under the impression that the Court has cut back on Seminole Tribe in more recent rullings, but that too would require more research than I am willing to put into the project.

Bibamus. You might be right about current SCOTUYs jurisprudence on this subject, but that just shows how confused it is. My take is that the First amendment is purely a restraint on Congress, and the Court should back out of this type of judicial hairsplitting.

Bibamus said...

Perhaps my comment was not as clear as it could have been:

It is one thing to agree with the minority opinion in McCreary, or believe, as you do, that "the Court should back out of this type of judicial hairsplitting". That is all well and good, and the sort of thing on which I think intelligent and well-meaning people can honestly disagree.

It is another thing entirely to support the actions of the complainant, as Samwick flirts with here. My point is that even if they were within their constitutional rights to display the commandments, they were being petty and stupid by doing so. I'd like to know that we all agree on that, jurisprudence aside.

Joe said...
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Jonah B. Gelbach said...


Seminole Tribe is possibly the most important of the cases listed in Amar's article. It was an early part of the Court's recent foray into what some call "11th Amendment jurisprudence", and what others more accurately (as I understand) refer to as federalism.

The text of the 11th is this:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The Court's activist right wing has interpreted "residents of state X can't sue state Y in federal court" to mean that "residents of state X can't sue state X in federal court". The issue that led to the ratification of the 11th was that a resident of one state (for some reason I'm thinking Va, tho I could be wrong) sued another state in federal court for nonpayment of bonded debt. The Constitution didn't say anything that would restrict such suits before the 11th.

The issue is important b/c there is now a frontal assault on wide swaths of the federal regulatory structure, and lots else, based on the misinterpretation above as well as various ... interesting ... ideas like "you can't sue the state you live in for money damages in federal court, even if that state has ignored federal law to your detriment, because the dignity of the sovereign state would be thusly affronted." you can, however, sue for an injunction in fed court: no indignity there -- only in having to pay damages once enjoined.

You might wonder what the textual justification for this dignity argument do a lot of people. It's based largely on English Common Law (so much for keeping the support of our Constitutional interpretation domestic). Justice Thomas in particular is a fan of this line of reasoning.

There's an excellent book on all this by a conservative 9th Circuit Judge, John Noonan. The book is called Narrowing the Nation's Power and is an easy and fascinating read.

Lastly, I posted on these issues a while back

Robert Schwartz said...

"It is another thing entirely to support the actions of the complainant, as Samwick flirts with here. My point is that even if they were within their constitutional rights to display the commandments, they were being petty and stupid by doing so. I'd like to know that we all agree on that,"

Frankly, Scarlet, I don't give a damn.