I’ve said this before, but I think it’s worth adding a few caveats to Dylan Matthews’s roundup of political science literature on the Supreme Courts. Particularly when the attitudinal model is used to defend very strong forms of legal realism, it’s worth noting that the model only applies to Supreme Court votes on the merits. Given that virtually by definition cases in the modern era only reach the Supreme Court when there is substantial legal ambiguity involved, it’s not surprising that politics generally drives votes in politically ambiguous cases. But the law matters significantly more in determining what kind of cases the Supreme Court hears and which it doesn’t, and politics alone also can’t explain why votes on the merits are structured around some issues than others. (Although Scalia and Thomas presumably believe that abortion should be illegal, their jurisprudence doesn’t require states to make it illegal.) There are also times when legal policy preferences aren’t the same as policy preferences per se. If you look at it as a case about federalism, the attitudinal model gets 7 of the 9 votes on Raich right; if you look it as a case of whether the federal government should strictly enforce anti-marijuana statutes, it arguably gets 7 of 9 votes wrong. Bush v. Gore is the absolute poster child for purely political jurisprudence, and yet if you look at it as an equal protection case it gets all 9 votes wrong.
For those interested, I’d strongly recommend Mark Graber’s brilliant and very readable essay on models of decision-making and judicial deference during wartime. One crucial limitation of political science modeling is that there’s no objective way of determining what constitutes sound legal practice or of effectively isolating “law” from “politics.” Supreme Court justices always have some discretion, and they’ve always been constrained in many ways from voting pure political preferences.
There’s a lot of egregious hackery in Vinson’s opinion yesterday. The Wall Street Journal has crossed some of Vinson’s hackery with some of its own. I’m not sure if this Vinson/WSJ law office history has topped Vinson’s assertion that not buying health insurance has no effect on markets in health insurance — it’s a high bar — but this attempt to enlist John Marshall [!] in the service of a narrow commerce clause some pretty impressive hackwork:
Congressional Democrats and the Obama Administration justified this coercion under the Commerce Clause, so it is fitting that Judge Vinson conducts a deep investigation into its history and intent, including Madison’s notes at the Constitutional Convention and the jurisprudence of the first Chief Justice [sic!], John Marshall. The original purpose of the Commerce Clause was to eliminate the interstate trade barriers that prevailed under the Articles of Confederation—among the major national problems that gave rise to the Constitution.
Did Marshall believe that the Commerce Clause should be essentially limited to the elimination of trade barriers? Well, I happen to have John Marshall right here, and:
The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.
Implying that Marshall shares the modern libertarian conception of the commerce clause is an act of remarkable ignorance. More on this later this afternoon, but citing Marshall on behalf of the side he spent his career arguing against is embarrassing. I can’t wait to see the Journal op-ed citing Marshall in defense of Hudson’s interpretation of the necessary and proper clause…
I remember when I used to joke about Republicans bringing back Hammer v.Dagenhart. [Update: more explanation here.] Senator Mike Lee provides the punchline himself.
It’s worth mentioning here that, Lee’s claims that Hammer was a regrettable outcome compelled by the Constitution notwithstanding, the majority’s reasoning was in fact remarkably specious. The law struck down in Hammer wasn’t even a general ban; it merely prevented good made with child labor from being shipped across state lines. As Holmes noted in his dissent, the idea that this regulation wasn’t an excerise of the federal government’s power to regulate interstate commerce was absurd, and moreover the Court’s conservatives were very inconsistent about applying this highly dubious constitutional requirement:
The statute confines itself to prohibiting the carriage of certain goods in interstate or foreign commerce. Congress is given power to regulate such commerce in unqualified terms. It would not be argued today that the power to regulate does not include the power to prohibit. Regulation means the prohibition of something, and when interstate commerce is the matter to be regulated, I cannot doubt that the regulation may prohibit any part of such commerce that Congress sees fit to forbid. At all events, it is established by the Lottery Case and others that have followed it that a law is not beyond the regulative power of Congress merely because it prohibits certain transportation out and out….So I repeat that this statute, in its immediate operation, is clearly within the Congress’ constitutional power. [cites omitted]
The question, then, is narrowed to whether the exercise of its otherwise constitutional power by Congress can be pronounced unconstitutional because of its possible reaction upon the conduct of the States in a matter upon which I have admitted that they are free from direct control. I should have thought that that matter had been disposed of so fully as to leave no room for doubt. I should have thought that the most conspicuous decisions of this Court had made it clear that the power to regulate commerce and other constitutional powers could not be cut down or qualified by the fact that it might interfere with the carrying out of the domestic policy of any State.
Hammer was not only a bad outcome, it was a bizarre reading of the Constitution. It’s amazing that a United States Senator would cite it as a model in 2011.
To follow up on Greenwald’s response to William Galston’s call to make more people subject to involuntary civil confinement, it’s worth discussing the case in which the Supreme Court held that the state cannot “constitutionally confine…a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” The underlying facts of O’Connor v. Donaldson are disturbing, and should (to put it mildly) give pause to those who would use the Tuscon shooting to expand the state’s powers of civil confinement. From Stewart’s opinion for the Court:
The testimony at the trial demonstrated, without contradiction, that Donaldson had posed no danger to others during his long confinement, or indeed at any point in his life. [Hospital superintendent] O’Connor himself conceded that he had no personal or second-hand knowledge that Donaldson had ever committed a dangerous act. There was no evidence that Donaldson had ever been suicidal or been thought likely to inflict injury upon himself. One of O’Connor’s codefendants acknowledged that Donaldson could have earned his own living outside the hospital. He had done so for some 14 years before his commitment, and, immediately upon his release, he secured a responsible job in hotel administration.
Furthermore, Donaldson’s frequent requests for release had been supported by responsible persons willing to provide him any care he might need on release.
This case receives a fairly lengthy discussion in The Brethren, because it was a classic example of Burger’s incompetent handling of the Court — he assigned the opinion to himself despite the other justices at conference seeming to want a different focus, and the result was that he ended up receiving zero joins for his would-be majority opinion. But what’s striking for our purposes is that while Woodward and Armstrong report significant disagreement about the appropriate remedy, with the possible exception of Burger every justice (including Rehnquist!) was appalled by what had been done to Donaldson; this wasn’t a Brennan/Marshall crusade.
There are very good reasons, in other words, to confine civil confinement to cases where a person poses a demonstrable danger to herself or others. In retrospect, we can see that Jared Lee Loughner was genuinely dangerous rather than merely unpleasant or eccentric, but making these calls before the fact is overwhelmingly likely to produce an intolerable number of false positives. Criminalizing mental illness is a bad idea, and we should not let the Giffords shooting lead us in that direction.
Some radical Trotskyites on the Kentucky Supreme Court decided to ignore the new, annotated Federalist Society version of the Constitution, which includes the crucial provision “please disregard all previous clauses if the War (on Some Classes of People Who Use Some) Drugs is involved,” resulting in oral arguments at the Supreme Court earlier this week. The case involves a warrantless search undertaken because police searching for another offender believed they smelled drugs being consumed behind another door. Dahlia Lithwick’s report suggests a strong likelihood that the Supreme Court will use the Federalist Society version and are therefore “poised to eviscerate the warrant requirement in a broad class of “exigent” situations.” Depressing, although far from surprising. The whole thing is worth reading, but I especially liked this passage about some, ah, method acting from Kennedy:
Here’s Chief Justice John Roberts, for example, describing the average jailbreak: “I assume the ordinary prison escape is—I don’t know—over the wall, under the tunnel, or, you know, while the guard’s looking a different way.” Justice Anthony Kennedy wonders aloud: “This may be a bit rudimentary, but can you tell me why isn’t the evidence always being destroyed when the marijuana is being smoked? Isn’t it being burnt up?” And then Justice Antonin Scalia expounds on the need for zealous police enforcement powers, up to and including the right to search your home without a warrant, because, as he explains, “there are a lot of constraints on law enforcement, and the one thing that it has going for it is that criminals are stupid.”
Whoa, like, deep, man. I think we might want to consider some warrantless, no-knock seraches of chambers at the Supreme Court…
I have some thoughts about what the Supreme Court’s refusal to grant cert in a commerce clause case (with an angry dissent from Thomas) might mean for the constitutionality of the individual mandate. The short version: probably not much. It does make it an odds-on favorite that Scalia will vote to hold the mandate unconstitutional, but given that the case involves the regulation of health care rather than pot this isn’t shocking. Otherwise, we don’t know a lot more than we did — I’m still guessing there will be 5 votes to uphold the mandate, but that’s because I believed that ex ante.
Via Ian Millhiser, I am shocked and appalled by this un-American passage in Antonin Scalia’s solo dissent today:
The canon against superfluity is not a canon against verbosity. When a thought could have been expressed more concisely, one does not always have to cast about for some additional meaning to the word or phrase that could have been dispensed with. This has always been understood. A House of Lords opinion holds, for example, that in the phrase “ ‘in addition to and not in derogation of ’ ” the last part adds nothing but emphasis.
Someone needs to tell the Supreme Court that we need to rely on good, old-fashioned American standards of statutory construction, and keep dirty foreign law out of it!
Seriously, there is of course nothing the slightest bit objectionable about citing a foreign court as part of a larger argument about American law. This whole “citing foreign law” controversy, which Scalia has at times attempted to stoke, is just culture war rube-running, invoked solely to argue against outcomes people disagree with for independent reasons. And citations of foreign law are hardly just a recent development. Does anyone think it was illegitimate of Maclean to cite the “general law of nations” in his Dred Scott dissent?
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In pointing out that it’s hard to square Antonin Scalia’s assertions that the 14th Amendment provides no protection for gender equality with the rest of his jurisprudence, I didn’t even haul out the heaviest artillery. I think it’s safe to say that none of the framers or ratifers of the 14th Amendment thought they were voting for the principle that “states have to have uniform standards for vote counts and recounts,” let alone “states have to have uniform recounts if non-uniform ones might lead to the defeat of the candidate favored by a majority of the Supreme Court, but not in any other case.”
…on a somewhat realted note, Scalia’s originalist take on pizza reminds me of Sherry and Faber on latkes and constitutional theory. Of course, the Scalia entry should be modified to read “unless the election of George W. Bush requires making latkes, in which case any recipe will work.”
“Home Run” might be a little premature, but at the least a stand-up triple of an appointment:
Justice Sotomayor has completely dispelled the fear on the left that her background as a prosecutor would align her with the court’s more conservative members on criminal justice issues. And she has displayed a quality — call it what you will — that is alert to the humanity of the people whose cases make their way to the Supreme Court.
It seems worth noting that the Rosen hatchet job looks even worse now than it did at the time.
A few points about Michael Lind’s argument here:
Even if WikiLeaks is defined as a news organization, American law allows both prior injunctions halting publication of government secrets and prosecutions of media organizations following publication, in certain circumstances. In New York Times v. Sullivan, the Pentagon Papers case, the Supreme Court held that the government failed to pass a heavy test in trying to prevent publication of state secrets in advance — but conceivably in some cases that test could be met. And according to the Court, the federal government had the right to prosecute the New York Times and the Washington Post after publication, although it chose not to. The government’s case against Daniel Ellsberg and Anthony Russo for leaking the Pentagon Papers was thrown out because of the gangster-like methods used against them by Richard Nixon’s sinister “plumbers,” not because the government lacked the power to prosecute them under the Espionage Act.
- The case is NY Times v. U.S., not Sullivan (the landmark 1964 libel case.)
- Lind’s assertion that the Court said that the government had the “right” to prosecute the newspapers is, at best, deeply misleading. It implies that the Court found that such a prosecution would not violate the First Amendment, but the Court’s three paragraph per curiam is entirely silent on the subject of an after-the-fact prosecution.
- Similarly, while the Court did theoretically hold open the possibility that prior restraints on the press would be constitutional, it is exceptionally unlikely that any of the WikiLeaks material would come close to meeting that burden, which must involve immediate and direct harm (such as revealing troop positions for an imminent attack.)
- It is true that (absent the Nixon administration’s other illegal actions) the government had the authority to prosecute Ellsburg, but that’s conflating two very distinct issues: stealing/directly leaking classified data and publishing data leaked by a third party. Wikileaks is comparable to the newspapers, not to Ellsburg. The government has the legitimate authority to prosecute Bradley Manning (although it shouldn’t have the authority to torture him.) That’s an entirely different question for whether the government can prosecute Assange, and even after the fact it faces an extremely high First Amendment burden. I very strongly doubt that a prosecution of either Assange or the New York Times for publishing the leaks could pass constitutional muster. And if it did, the chilling effect would be appalling.
The findings of the Epstein/Landez Posner study about the increasing tendency of the Supreme Court to side with business interests aren’t surprising, but the data is useful to have anyway. This kind of study of judicial behavior has its limitations, but the trend is pretty clear here, and is in part of a very conscious strategy of both outside groups and the politicians who nominate and confirm judicial appointments.
Today is Yesterday was the 10th Anniversary of the Supreme Court’s disgraceful Bush v. Gore decision. Where exactly the decision ranks among the worst decisions in Supreme Court history depends on what metric you’re using. Certainly, the Supreme Court has issued many, many more immoral rulings throughout its history. But Dred Scott, Plessy, U.S. v. Cruikshank, Hammer v. Dagenhart, et al. were at least based on intelligible constitutional principles — evil principles, but actual principles, in each case shared by a substantial measure (if not an overwhelming majority) of the country’s political elites. One can say the same thing of most of the other Rehnquist and Roberts Court decisions that have generated significant criticism — McCleskey v. Kemp and Parents Involved and Citizens United might have been based on the wrong constitutional principles, but they do rest on actual constitutional principles. Bush v. Gore is different, in that it was essentially lawless all the way down. Not only was the legal “principle” announced in the case flagrantly inconsistent with the past jurisprudence of the majority, even more unforgivably the nominal principle wasn’t even applied to the case itself. What the Supreme Court does is inevitably “political” in a broad sense, but not necessarily in the sense of narrow partisan politics or favoring particular litigants.
For those interested in further expansion on these points, some of my previous posts on the topic: