Obama on ‘Conservative Judicial Activism’
Speaking to reporters last evening on Air Force One, in the context of his upcoming Supreme Court nomination, President Obama warned of “conservative judicial activism.” “In the ’60s and ’70s, the feeling was, is [sic] that liberals were guilty of that kind of approach,” he said. “What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.” That error? “Not showing appropriate deference to the decision of lawmakers,” the AP reports.
Really. And which “activist” decisions from the ’60s and ’70s does this former constitutional law instructor have in mind? Griswold v. Connecticut (1965), where the Court found unconstitutional a state statute criminalizing the sale and use of contraceptives? Loving v. Virginia (1967), the same, concerning inter-racial marriage?
The list of Court decisions overturning “the will of the people,” as reflected by their legislatures, is long; and not all are correct. But viewing those decisions through the lens of “activism” and “restraint” is one of the least useful ways of determining that question. In fact, too often those labels distract us from the real issue, namely, disagreement over the meaning or implications of the constitutional, statutory, or regulatory provisions before the Court.
Obama’s objective, however, is hardly disguised. He fears that a “conservative” Court will be “active” in finding constitutional constraints on his agenda. We saw that in his reaction to the Court’s decision in January throwing out parts of the McCain-Feingold campaign finance law. And with more than 20 states now challenging ObamaCare, he’d like to have a Court “showing appropriate deference” to Congress.
On Monday the White House Office of Public Engagement invited me and three others over for an “off-the-record” discussion on the upcoming nomination. After making clear that my comments, at least, would not be off the record, I noted the obvious, that the president’s nominee would likely be in a tough spot during the Senate confirmation hearings, because one of the central questions he or she will have to address is whether, in light of ObamaCare, there are any longer any limits on the power of Congress to regulate. After all, if Congress can now order individuals to buy a product from a private company, what can’t it order?
In his comments last evening, Obama said judges should be deferential “as long as core constitutional values are observed.” Is there any constitutional value more fundamental than limited government, designed to secure individual liberty? The Constitution authorizes courts to actively secure that value, failing which their deference amounts to dereliction of duty.
State Secrets, Courts, and NSA’s Illegal Wiretapping
As Tim Lynch notes, Judge Vaughn Walker has ruled in favor of the now-defunct Al-Haramain Islamic Foundation—unique among the many litigants who have tried to challenge the Bush-era program of warrantless wiretapping by the National Security Agency because they actually had evidence, in the form of a document accidentally delivered to foundation lawyers by the government itself, that their personnel had been targeted for eavesdropping.
Other efforts to get a court to review the program’s legality had been caught in a kind of catch-22: Plaintiffs who merely feared that their calls might be subject to NSA filtering and interception lacked standing to sue, because they couldn’t show a specific, concrete injury resulting from the program.
But, of course, information about exactly who has been wiretapped is a closely guarded state secret. So closely guarded, in fact, that the Justice Department was able to force the return of the document that exposed the wiretapping of Al-Haramain, and then get it barred from the court’s consideration as a “secret” even after it had been disclosed. (Contrast, incidentally, the Supreme Court’s jurisprudence on individual privacy rights, which often denies any legitimate expectation of privacy in information once revealed to a third party.) Al-Haramain finally prevailed because they were ultimately able to assemble evidence from the public record showing they’d been wiretapped, and the government declined to produce anything resembling a warrant for that surveillance.
If you read over the actual opinion, however it may seem a little anticlimactic—as though something is missing. The ruling concludes that there’s prima facie evidence that Al-Haramain and their lawyers were wiretapped, that the government has failed to produce a warrant, and that this violates the Foreign Intelligence Surveillance Act. But of course, there was never any question about that. Not even the most strident apologists for the NSA program denied that it contravened FISA; rather, they offered a series of rationalizations for why the president was entitled to disregard a federal statute.
Keeping Pandora’s Box Sealed
In today’s Washington Times, Ken Klukowski and Ken Blackwell co-authored an op-ed about McDonald v. Chicago and the Privileges or Immunities Clause titled, “A gun case or Pandora’s box?”
If that title sounds familiar, it should. Josh Blackman and I have co-authored a forthcoming article called “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment.“ As Josh put it in his reply to the Kens, “imitation is the most sincere form of flattery.”
Going beyond the title, there are several errors in the piece, which I will briefly recap:
First, the Kens argue that the Supreme Court should uphold the Slaughter-House Cases, out of a fear that reversal — and thereby a reinvigoration of Privileges or Immunities — would empower judges to strike down state and local laws. What they neglect to mention is that it has been the role of the judiciary since Marbury v. Madison to strike down laws that violate the Constitution. There is near-universal agreement across the political spectrum that Slaughter-House was wrongly decided, causing the Supreme Court to abdicate its constitutional duty by ignoring the Privileges or Immunities Clause for 125 years. The Kens want to continue this mistaken jurisprudence.
Next, the Kens describe the Privileges or Immunities Clause as a general license for courts to strike down any law they do not like. This is not accurate. Neither the Privileges or Immunities Clause nor any other part of the Fourteenth Amendment empowers judges to impose their policy views. Instead, “privileges or immunities” was a term of art in 1868 (the year the Fourteenth Amendment was ratified) referring to a specific set of common law, pre-existing rights, including the right to keep and bear arms. The Privileges or Immunities Clause is thus no more a blank check for judges to impose their will than the Due Process Clause — the exact vehicle the Kens would use to “incorporate” the Second Amendment.
To set the record straight, Josh and I are working on an op-ed — not so much to respond to the Kens’ flawed analysis but to present the correct historical and textual view of the Privileges or Immunities Clause. To see our arguments in greater detail, read our article and Cato’s McDonald brief, both of which I’ve previously blogged about here , here, and here.
‘We Don’t Put Our First Amendment Rights In the Hands of FEC Bureaucrats’
I (and several colleagues) have blogged before about Citizens United v. Federal Election Commission, the latest campaign finance case, which was argued this morning at the Supreme Court. The case is about much more than whether a corporation can release a movie about a political candidate during an election campaign. Indeed, it goes to the very heart of the First Amendment, which was specifically created to protect political speech—the kind most in danger of being censored by politicians looking to limit the appeal of threatening candidates and ideas.
After all, hard-hitting political speech is something the First Amendment’s authors experienced firsthand. They knew very well what they were doing in choosing free and vigorous debate over government-filtered pablum. Moreover, persons of modest means often pool their resources to speak through ideological associations like Citizens United. That speech too should not be silenced because of nebulous concerns about “level playing fields” and speculation over the “appearance of corruption.” The First Amendment simply does not permit the government to handicap speakers based on their wealth, or ration speech in a quixotic attempt to equalize public debate: Thankfully, we do not live in the world of Kurt Vonnegut’s Harrison Bergeron!
A few surprises came out of today’s hearing, but not regarding the ultimate outcome of this case. It is now starkly clear that the Court will rule 5-4 to strike down the FEC’s attempt to regulate the Hillary Clinton movie (and advertisements for it). Indeed, Solicitor General Elena Kagan — in her inaugural argument in any court — all but conceded that independent movies are not electioneering communications subject to campaign finance laws. And she reversed the government’s earlier position that even books could be banned if they expressly supported or opposed a candidate! (She went on to also reverse the government’s position on two other key points: whether nonprofit corporations (and perhaps small enterprises) could be treated differently than large for-profit business, and what the government’s compelling interest was in prohibiting corporations from using general treasury funds on independent political speech.)
Ted Olson, arguing for Citizens United, quickly recognized that he had his five votes, and so pushed for a broader opinion. That is, the larger — and more interesting — question is whether the Court will throw out altogether its 16-year-old proscription on corporations and unions spending their general treasury funds on political speech. Given the vehement opposition to campaign finance laws often expressed by Justices Scalia, Kennedy, and Thomas, all eyes were on Chief Justice Roberts and Justice Alito, in whose jurisprudence some have seen signs of judicial “minimalism.” The Chief Justice’s hostility to the government’s argument — “we don’t put our First Amendment rights in the hands of FEC bureaucrats” — and Justice Alito’s skepticism about the weight of the two precedents at issue leads me to believe that there’s a strong likelihood we’ll have a decision that sweeps aside yet another cornerstone of the speech-restricting campaign finance regime.
The Sotomayor Hearings
Nothing has changed in the six short weeks since Sonia Sotomayor was nominated to the Supreme Court: she remains a symbol of the racial politics she embraces. While we celebrate her story and professional achievements, we must realize that she — an average federal judge with a passel of unimpressive decisions — would not even be part of the conversation if she weren’t a Hispanic woman.
As Americans increasingly call for the abolition of affirmative action, Sotomayor supports racial preferences. As poll after poll shows that Americans demand that judges apply the law as written, the “wise Latina” denies that this is ever an objective exercise and urges judges to view cases through ethnic and gender lenses.
At next week’s hearings, Sotomayor will have to answer substantively for these and other controversial views — and for outrageous rulings on employment discrimination, property rights, and the Second Amendment. To earn confirmation, she must satisfy the American people that, despite her speeches and writings, she plans to be a judge, not a post-modern ethnic activist. After all, a jurisprudence of empathy is the antithesis of the rule of law.
Richard Epstein on Sotomayor
Cato adjunct scholar Richard Epstein of the University of Chicago and New York University, finds much to worry about in Judge Sonia Sotomayor’s nomination to the Supreme Court:
The treatment of the compensation packages of key AIG executives (which eventually led to the indecorous resignation of Edward Liddy), and the massive insinuation of the executive branch into the (current) Chrysler and (looming) General Motors bankruptcies are sure to generate many a spirited struggle over two issues that are likely to define our future Supreme Court’s jurisprudence. The level of property rights protection against government intervention on the one hand, and the permissible scope of unilateral action by the president in a system that is (or at least should be) characterized by a system of separation of powers and checks and balances on the other.
Here is one straw in the wind that does not bode well for a Sotomayor appointment. Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the “public use language.” Of course, the takings clause of the Fifth Amendment is as complex as it is short: “Nor shall private property be taken for public use, without just compensation.” But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion–one that makes Justice Stevens look like a paradigmatic defender of strong property rights.
I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The “or else” was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: “We agree with the district court that [Wasser's] voluntary attempt to resolve appellants’ demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.”
Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court.
The Jurisprudence of Detention: Definitions and Cases
Almost a year has passed since the Supreme Court’s decision to extend habeas rights to Guantanamo in Boumediene. Detention policy is currently under review by interagency task forces; it is worth looking at what the developing body of detention rulings say about the future of detention.
Taking prisoners is an unavoidable part of military action. Telling our troops that they can engage identified enemies with lethal force but cannot detain them puts them in an impossible position.
But who can we hold? The Taliban foot soldier is an easy case, but as we move away from the battlefield things get a little fuzzy. A chronological review of the decisions regarding detainee status gives some insight.
Judge Sonia Sotomayor’s Philosophy of Judging
Judge Sonia Sotomayor of the 2nd Circuit Court of Appeals has been mentioned as a possible Supreme Court nominee. She also has been caught on tape explaining her view of a judge’s role. Reports the Washington Post:
As White House press secretary Robert Gibbs put it, Obama is looking for “somebody who understands how being a judge affects Americans’ everyday lives.”
Congressional conservatives have reacted anxiously to that qualification, fearing that it means a nominee who is more interested in making the law than in interpreting it.
One possible candidate for the seat, Judge Sonia Sotomayor of the U.S. Court of Appeals for the 2nd Circuit, appeared to walk close to that line in a video that emerged yesterday. Sotomayor would be the first Latino and the third woman to serve on the high court.
Speaking at Duke University in 2005, Sotomayor said, “All of the legal defense funds out there, they’re looking for people with court of appeals experience” because “the court of appeals is where policy is made.”
She then sought to soften the statement, adding lightly, “I know this is on tape and I should never say that, because we don’t make law, I know. Um, okay. I know. I’m not promoting it, I’m not advocating it.” The audience laughed as she brushed off the statement, perhaps sarcastically.
Making policy. Yes, it is indisputable that that’s what judges often do. But is that what they are supposed to do?
President Barack Obama seems to think so, when he talks about the importance of “empathy” in judges. (With whom do I empathize in this First Amendment case: the U.S. Attorney General or the New York Times? I vote for the Times!) However, the Senate might want to debate this issue before approving someone to fill Justice David Souter’s vacancy, especially if the nominee shares the president’s apparent view that empathy is a substitute for jurisprudence in interpreting the law and Constitution.
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