Category: Supreme Court

7

Constitutionalism and Legitimacy

constitution5a.jpgOver at Convictions and Balkinization, Orin Kerr and Jack Balkin are having an interesting discussion about Justice Scalia’s constitutionalism versus liberal constitutionalism.

Orin Kerr writes:

Justice Scalia’s view has popular appeal precisely because it is based on populism. His basic theme is that the People created the Constitution, and they can set rules with in it. If the People want to change the Constitution, they can. But it’s up to them. In this view, the People decide: Every citizen is empowered to participate in the rule making that governs us all. I think this resonates not because Justice Scalia is a legal Pied Piper but because the message itself is quite powerful (and to me, I confess, pretty persuasive). At bottom, it’s “we the people.”

Kerr notes that liberal constitutionalism can be defended by arguing that “some limitations on democratic rule making actually enhance democratic rule making.” But, Kerr notes: “This is a very popular move among academics, although it can be hard to sell to the public.” Kerr also contends that another option is “to forget about theory and instead focus on results. . . . The idea is to focus on the bad results that are possible if courts let elected branches run amok, and then ask whether you want to live in a world with good results or the potential for bad ones.”

Jack Balkin contends that “Scalia may say his originalism is respectful of majority rule, but he is perfectly happy to strike down lots of laws for which there is little basis in the original expected application.” Balkin goes on to argue:

By contrast, liberal constitutionalism is far more honest. Its basic principles are simple. First, we must be faithful to the constitutional text and to the basic principles of the Constitution that underlie it. Second, we must apply and adapt these principles in the text to changing times. Liberal constitutionalists from Brandeis to Brennan have made these two basic claims over and over again: Be faithful to the constitution’s text and principles, and apply them faithfully to new circumstances and new challenges.

I have a few thoughts to add to this debate:

1. The quest in theories of constitutional interpretation has often been to find a way to legitimate judicial review. What gives courts the power to stop the will of the majority? The problem is that in a post-realist age, we realize that the Constitution is not very constraining and that justices can interpret it as freely as they can a Rorschach blot. This makes the quest for legitimacy a very difficult one, in at least two senses: (1) we need a theory for why a document written hundreds of years ago can bind us today, even when a large majority of us may want to do something; (2) we need a theory for why judicial interpretations of this document are authoritative and not merely the gussied-up projection of a justice’s preferences. All sorts of valiant efforts have been made to find legitimacy in these two senses.

2. I’m not sure we should be so obsessed with legitimacy, because I’m not sure that we’ll ever come up with a satisfactory way to achieve it. Kerr might very well be right that most theories to find legitimacy might appeal more to theorists than to the general public, and that’s a big problem, for at least one main reason why legitimacy is sought is to convince the public of the validity of the Court’s decisions. Paul Kahn’s Legitimacy and History (1993) makes a very powerful argument for why the quest for legitimacy is futile.

3. Justice Scalia’s populist constitutionalism is also deeply flawed. He says he’s reluctant to overturn the will of the majority, but as Balkin notes, that’s just false. Scalia’s brand of originalism is just one theory among many to claim legitimacy, a way to argue that Scalia’s interpretations are somehow more grounded than other justices’ interpretations, that he somehow has insight into the true meaning of the Constitution. But there is no true meaning of the Constitution. And Scalia’s method of interpretation is no more legitimate than many other methods. The realist in me says that this entire debate is about sloganeering. Everybody wants their vision to be the true meaning of the Constitution, and it devolves into a silly game of “I’m more legitimate than you.”

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3

Predictions for United States v. Rodriguez

Many thanks to Doug Berman over at Sentencing Law and Policy for his kind words about my last post discussing Begay v. United States. Doug ended his post by noting that “the only thing missing” from my analysis was an assessment of what the Court’s ruling in Begay might mean for the soon-to-be-decided United States v. Rodgriguez. Taking up Doug’s gently-placed gauntlet, here are my thoughts on the likely outcome of Rodriguez, as informed by the Justices’ voting/reasoning in Begay:

First, a little Background: Rodriguez involves clause (i) of the same Armed Career Criminals Act (“ACCA”) sentencing enhancement that was at issue in Begay (and in James). 18 U.S.C. §924(e)(2)(B). Whereas clause (ii) of that section imposes the enhancement if the defendant previously has been convicted of three “violent felonies,” clause (i) triggers the enhancement if a defendant previously has been convicted of a “serious drug offense” — defined as “a state drug trafficking offense for which a maximum term of imprisonment of 10 years or more is prescribed by law.” 18 U.S.C. §924(e)(2)(B)(i). At the time when he committed his latest offense, Rodriguez had three prior convictions in Washington State for delivery of a controlled substance. Under Washington State law, the maximum term of imprisonment for this offense is 5 years for first-time offenders, and 10 years for those committing the offense for a second time (or third, or fourth, etc. time). The statutory interpretation question thus becomes: Whether a state drug trafficking offense qualifies as a “serious drug offense” triggering the §924(e)(2)(B)(i) enhancement if the maximum term of imprisonment starts out at 5 years for first-time offenders, but rises to 10 years for repeat offenders.

Based on their votes in Begay (and James) construing clause (ii) of §924(e)(2)(B), and on their questions at oral argument, here are my speculations (and I want to emphasize that these are just speculations) as to how the Justices are likely to vote in Rodriguez:

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3

Dejá-Vu in Begay v. United States

Last month, the Supreme Court issued an opinion in a little-discussed but methodologically intriguing statutory interpretation case called Begay v. United States. Begay addresses the range of predicate convictions that qualify a defendant for sentence enhancement under the Armed Career Criminal Act of 1984 (the “ACCA”), 18 U.S.C. §924(e). The sentencing enhancement provision is one which the Court addressed last term (2006-2007) in the context of a different predicate offense, in a case called James v. United States. Taken in tandem, the two cases intrigue because despite involving the same statutory provision and being decided by the same nine justices (no retirements or replacements in the interim), they produced different outcomes, different voting coalitions, and even different reasoning by some Justices.

At issue in both cases is a provision of the ACCA that imposes a mandatory 15-year minimum sentence on an offender who possesses a firearm while committing a felony IF the offender previously was convicted of three “violent felonies” or “serious drug offenses.” The Act defines “violent felony” to include any adult crime punishable by at least one year’s imprisonment that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. §924(e)(2)(B)(ii). This last clause is referred to as the “otherwise” or “residual” clause and is the provision subject to interpretation in both Begay and James. In James, the question presented was whether a conviction for “attempted burglary” falls within the residual clause; in Begay it was whether a conviction for driving under the influence of alcohol (DUI) does. (Under New Mexico law, DUI becomes a felony punishable by a prison term of more than one year the fourth time an individual commits it; by the time of his federal offense, Begay had twelve DUI convictions, nine of which counted as felonies under New Mexico law.)

The Court, in two fractured opinions, answered the presented questions “yes” in James (attempted burglary counts) and “no” in Begay (a DUI does not count). Only three Justices were in the majority in both cases. Only one Justice dissented in both. So, what is going on with Justices’ reasoning? The following roadmap attempts to explain:

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8

Crawford and ID Creep

Thanks to the Concurring Opinions gang for inviting me back for another visit!

I will leave it to the likes of the incredible Rick Hasen and SCOTUSBlog’s Lyle Deniston — among many, many others — to talk about the important election law elements of Monday’s Supreme Court decision on voter identification in Crawford v. Marion County Election Board. But if you are a hammer everything is a nail, and if you are a privacy scholar every newspaper story is about privacy. And the privacy implications here are rather clear.

Quite appropriately, the case was briefed, argued, and decided on the basis of the burden that Indiana’s identification requirements placed (or didn’t place) on the right to vote. The seminal cases were Harper v. Virginia Board of Elections, which held the poll tax unconstitutional, and its progeny. Other key sources cited in the opinions included the Carter-Baker Commission report and two recent federal electoral reform statutes, the motor voter law and the Help America Vote Act. The burdens considered by both the lead opinion and the dissents were pragmatic ones, largely monetary cost and inconvenience.

What about privacy burdens?

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2

Judges Citing Literature

book35a.jpgProfessor Todd Henderson (U. Chicago Law School) has posted an interesting article on SSRN, Citing Fiction, 11 Green Bag 2d 171 (2008). He provides many illuminating facts about judges citing literary works:

A comprehensive survey of over 2 million federal appellate opinions over the past 100 years reveals only 543 identifiable citations or references to works of fiction. Of these, less than half – 236 – were employed rhetorically to evoke an emotional response in the reader. This type of citation, which I’ll call a “literary” citation, occurs in only about 1 out of every 10,000 federal appellate opinions.

Todd’s data is quite interesting, but I disagree with how he frames his essay and some of the conclusions he draws. Todd writes:

[A] central claim of the law and literature movement (which I’ll refer to as “the Movement”) is that reading fiction can provide judges with knowledge about how to solve real world problems. For example, Professor Martha Nussbaum writes that “the novel constructs a paradigm of a style of ethical reasoning … in which we get potentially universalizable concrete prescriptions by bringing a general idea of human flourishing to bear on a concrete situation.” If this is true and the Movement has had a significant effect on law, one would expect to see an increase in the use of literature in judicial opinions, since judges routinely cite to works that have a direct impact on their decisionmaking. We should also expect to see works cited for the reasons the Movement wants them to be – to reveal that the fiction has evoked feelings of pity and empathy for the less fortunate and given a voice to traditionally marginalized segments of society. Neither of these things is true.

Unpacking this paragraph, I see the following claims: (1) whether the law and literature movement “has had a significant effect on law” can be assessed by instances when literature has a “direct impact” on judicial decisionmaking; (2) “central” claims of the law and literature movement are that literature makes judges more ethical or empathetic and that literature provides judges with “knowledge about how to solve real world problems”; and (3) citations will demonstrate whether literature has a “direct impact” on a judge’s decisionmaking.

Let’s begin with the first claim: Whether the law and literature movement “has had a significant effect on law” can be assessed by instances when literature has a “direct impact” on judicial decisionmaking.

This claim begins with an assumption that having a significant effect should be measured by having a direct impact. But it is unclear why the significant effect must be a direct impact rather than an indirect one. Reading Orwell’s 1984 might help shape how judges perceive surveillance and government power. Will it directly affect their decisions? Probably not, if direct effects mean that but for reading Orwell’s book, a judge inclined to decide a case one way will now decide it another way. But it might have helped shaped a judge’s mindset along with other works of literature and a number of other social and cultural experiences. It might have an indirect effect. The difficulty is that looking for direct impact is far too demanding a requirement.

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The Case Against Delaware

The state of Delaware has just won a major dispute with New Jersey in the Supreme Court, over a vigorous dissent by Justice Scalia. The dispute concerned New Jersey’s plan to build a “huge gas-processing plant on the Jersey side of the Delaware River.” As the NYT reports,

New Jersey has threatened to pull state pension funds from Delaware banks. Delaware officials, meanwhile, talked about calling up its National Guard to guard its border. . . . [A] New Jersey legislator wondered aloud about recommissioning the battleship New Jersey, now a museum on the Camden waterfront, just in case.

The majority agreed . . . that New Jersey could not authorize activities “beyond the exercise of ordinary and usual riparian rights in the face of contrary regulation by Delaware.” Justice Antonin Scalia . . . professed to be flabbergasted by the majority’s reasoning. What was so “extraordinary” about a wharf to unload liquefied natural gas, he asked. “Would a pink wharf, or a zig-zagged wharf qualify? How about one for the transfer of “tofu and bean sprouts”?

It all reminds me of a classic 2002 article by Jon Chait charging Delaware with persistent disregard for other states’ interests. . . .

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6

Qualified Immunity and Saucier v. Katz

Thanks to Dave and the rest of the authors here for inviting me to guest this month. I’m really looking forward to it.

I want to start with a word about a case in which the Supreme Court granted certiorarari on last week. In #07-751, Pearson v. Callahan, the Supreme Court granted cert on the Fourth Amendment question presented but also asked the parties to brief the following question:

“Whether the Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001) should be overruled?”

In Saucier the Supreme Court had mandated that when a federal court considers a qualified immunity case, it must decide the merits of a plaintiff’s constitutional claim before turning to the defendant’s assertion of qualified immunity. The Supreme Court has stated that this order-of-decisionmaking rule encorages the development of constitutional law and provides crucial guidance to official actors regarding what the Constitution requires of them.

Saucier has not been popular with lower federal courts or with a number of members of the Court itself. In a forthcoming article in the George Mason Law Review I urge the Court not to overturn Saucier. I take issue both with those who argue against Saucier on prudential grounds and those who argue that deciding the substantive question before the immunity quesiton violates Article III’s ban on advisory opinions.

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8

Defending Oneself

Tomorrow, the Supreme Court is scheduled to hear argument in a case, Indiana v. Edwards, involving a criminal defendant’s constitutional right of self-representation. I hope to talk about the specific issues raised in Edwards in a later post, but I first wanted to discuss my general (and evolving) views on the right of self-representation. Despite my initial resistance to the whole concept of self-representation, over the course of the last several years, as I have thought (and written) on the constitutional right of self-representation, I have come to believe that it is a fundamental right of criminal defendants without which our criminal justice system would lack legitimacy.

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6

What the Opinions May Look Like in D.C. v. Heller

Predictions based on oral argument are always highly tentative. With that caveat, here’s my best guess after listening to the Heller audio on C-SPAN:

A 5-1-3 decision in favor of Mr. Heller.

A five-Justice majority opinion authored by Chief Justice Roberts or Justice Kennedy (so I agree with Orin Kerr on the likely authorship) joined by Justices Scalia, Thomas, and Alito. The opinion will uphold the individual rights view of the Second Amendment, recognizing self-defense as a protected purpose of the right to arms, and invalidating at least some of the challenged provisions of D.C. law. The Court will distance itself from U.S. v. Miller and Miller‘s suggestion that the scope of protected “Arms” is closely dependent on what constitutes ordinary military equipment. What we’ll get is a constitutionalization and moderate expansion of the post-1689 English right to arms. Justice Kennedy particularly seemed to favor this sort of approach.

(Justice Thomas will probably concur separately to assert a very robust conception of the Second Amendment right to arms. If the majority opinion does not address the proper standard of review for Second Amendment cases, Justice Thomas will write separately to urge that strict scrutiny be applied. Justice Scalia may join this concurrence.)

Justice Breyer will write for himself only, in an opinion that will probably be styled as a concurrence in part and dissent in part. He will agree with the majority that the Second Amendment protects an individual right that can be asserted outside of the context of active participation in the militia, but will argue that the right is nonetheless closely focused on civic purposes, not self-defense. Since D.C.’s laws restrict armed self-defense but still permit individuals to keep rifles and shotguns for other purposes, Justice Breyer will reason, D.C.’s regulations are reasonable.

Justice Stevens will dissent, in an opinion joined by Justice Souter and Justice Ginsburg. These three Justices will basically accept D.C.’s position: the Second Amendment may confer an individual right to arms, but it is not a right that can be asserted outside of the context of participation in a state-regulated military organization.

(I am hesitant in assigning Justice Ginsburg to this position. She may agree with Justice Breyer, yielding a 5-2-2 configuration.)

More later.

* * *

Media Note: I’ll be appearing tonight to discuss Heller on NRA News’s program “Cam & Company” at 9 p.m. EST. You can watch and listen to the program live at that time at this link.

3

Where’s Lexington and Concord in D.C. v. Heller?

Minute_Man_tn.JPGMike O’Shea has thoughts on tomorrow’s argument in D.C. v. Heller below; here are my own. Despite my recent posts on original understanding, I recognize that it’s often the most important interpretive method actually used by courts in constitutional cases; and even non-originalists like me might fall back on the original understanding for a clause like the Second Amendment where there’s nothing else to go on.

So I’m therefore a little puzzled by the way the D.C. v. Heller briefs downplay what the Framers would have regarded as the paradigmatic case of the confiscation of arms by the government: the Battles of Lexington and Concord, the events that started the Revolutionary War. It’s a bit as if briefs on a 1950s statute protecting ports from surprise attacks made only a passing mention of Pearl Harbor.

Briefly, by 1775 the conflict between Britain and Massachusetts was coming to a head. Parliament passed increasingly restrictive acts, and transferred British troops from Nova Scotia to Boston to enforce them, but they had little impact outside of the confines of Boston itself. In 1775, the Massachusetts legislature was meeting in Concord, and had built up a store of arms there to arm colonial militia. General Gage in Boston, under orders from London to do something, sent an expedition to Concord to round up the leaders of the legislature — people such as Samuel Adams and John Hancock — and confiscate or destroy the hidden caches of arms. Starting at Lexington, local militias assembled to block the troops’ progress, shots were fired, and the war began. In Concord, the British regulars searching the town did in fact destroy cannon and supplies and threw shot into the river.

Surely this story of national government troops being sent to confiscate arms held by people now recognized as heroes would have been prominent in the minds of those proposing that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” (Indeed, the whole tale of 1770s Massachusetts probably inspired the Third and Fourth Amendments as well.)

The Heller brief focuses the most on this story, detailing the history of pre-war Massachusetts, and noting that the Revolution began with the raid on Lexington and Concord. But what I’ve described as the “paradigmatic case” of arms confiscation is a little muted. Lexington and Concord in the Heller brief stand, not as the evil that is itself to be prevented by the Second Amendment, but as the occasion for various Framers to indicate their displeasure at the gun confiscation that resulted afterwards in Boston under General Gage:

Americans reacted strongly to the disarmament of Boston. Thomas Jefferson and John Dickinson drafted a “Declaration of the Causes and Necessity of Taking Up Arms,” issued by the Second Continental Congress on July 6, 1775. Gage’s disarmament scheme figured prominently among the “Causes” for armed revolt [listed in the Declaration].

It seems an odd way to characterize the importance of “the shot heard round the world.”

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