Author: Peter Smith


California’s Electoral Votes and the Constitution

A proposed ballot measure in California to apportion the state’s electoral votes by congressional district, rather than awarding all of the state’s electoral votes to the candidate who wins the statewide popular vote, has received much-deserved attention recently. Some Republicans—including many supporters of Rudolph Giuliani’s campaign—have supported the ballot initiative because they recognize its potential to confer upon the Republican nominee a windfall of roughly 20 electoral votes in an otherwise solidly Democratic state; Democrats have uniformly opposed the measure, for the same reason. The measure has also renewed debate about the fairness and wisdom of the Electoral College.

There is much to be said, as a matter of policy, about the California initiative. If it is successful, for example, it is likely to lead to similar efforts in other states, driven (as is the California effort) more by partisan aims than by concerns about representative democracy in presidential elections. But the proposal suffers from a much more serious defect: it is very likely unconstitutional.

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Ben Hogan, Golf, and the Common Law

I was in the middle of Jeffrey Toobin’s book “The Nine” when a colleague who previously had tolerated playing a round of golf with me gave me a copy of Ben Hogan’s “Five Lessons.” I have read only the introduction of Hogan’s book, but–perhaps because I am in the proces of reading a gossipy but enlightening book about the Justices–I had law on the mind while I was perusing it. I was struck by the similarity between Hogan’s approach to golf and the the approach of the classic common-law judge to law.

Hogan, one of the greatest golfers of all time, writes that

What I have learned I have learned by laborious trial and error, watching a good player do something that looked right to me, stumbling across something that felt right to me, experimenting with that something to see if it helped or hindered, adopting it if it helped, refining it sometimes, discarding it if it didn’t help, sometimes discarding it later if it proved undependable in competition, experimenting continually with new ideas and old ideas and all manner of variations until I arrived at a set of fundamentals that appeared to me to be right because they accomplished a very definite purpose, a set of fundamentals which proved to me they were right becuse they stood up and produced under all kinds of pressure.

In the classic conception — perhaps an unduly rosy view, and one that I am not necessarily defending here — the common-law judge gradually refines the law, cautiously trying out new rules or applying old rules to new circumstances. Sometimes he discards a prior approach because it had proved unworkable in practice. But over time — and again, I am just presenting the common-law view, not attempting to defend it — the judge arrives at a set of fundamental principles that are right precisely because they generally produce good results and because they have stood the test of time.

Of course, it is not clear that this is an accurate statement of what common-law judges do. And even if it is, there is a lot of room to debate the desirability of this approach to the law. (For two very different views, compare Justice Scalia’s account of common-law judging in “A Matter of Interpretation” with Guido Calabresi’s view in “A Common Law for the Age of Statutes.”) But Hogan’s account of his approach to perfecting his golf game got me thinking that there might be a broader appeal to, and a broader application of, this experimentalist, gradualist approach.

As matters currently stand, unfortunately, although I am generally good at least for par at the common-law method, my handicap in golf is significantly higher.


Supermajority Rules and Policy Outcomes

It is a familiar argument that procedural rules requiring supermajority support for decisions made by collective bodies, such as a legislature, tend to produce better policy. John McGinnis and Michael Rappaport, for example, have relied on this assertion in arguing that the original meaning of the Constitution, whose provisions required supermajoritarian support for enactment, should be preferred today. I think the basic assertion is debatable, but at a minimum, to assess the claim we need to have a clear definition of the degree of supermajoritarianism that ought to be required to ensure “good” results. After all, a requirement of unanimity, for example, often will result in no affirmative enactments; this might be good if you are a committed libertarian, but otherwise the complete failure of the legislature to act often might be tantamount to making bad policy.

Yesterday’s vote on Senator Webb’s proposal is an interesting example. The Senate’s cloture rules — which effectively require a supermajority of 60% to pass a bill — prevented passage of Webb’s bill, which attracted only 56 votes. But the Senate, of course, is not a truly representative institution to begin with. Because each state is entitled to two Senators (thanks to the “good” policy produced by the supermajoritarian enactment rules for constitutional ratification), the voters of small states have a disproportionately large voice in the Senate. Consider what these two layers of supermajoritarianism in the Senate–equal state representation and the Senate’s own cloture rules–meant for yesterday’s vote. If we assume, for argument’s sake, that each Senator represents one half of the population of the state that he or she serves, then we can determine the true degree of the Senate’s supermajoritarianism.

Before I checked the numbers, my intuition was that the 56 Senators voting for the proposal represented a significantly higher percentage of the population than 56%. It turns out that although I was right that they represent more than 56%, it is not too much more. The 56 Senators who voted for Webb’s bill collectively represent 167,477,569 of the 281,424,177 people currently estimated to live in the United States according to the 2000 Census; the 44 Senators who voted against the proposal represent 113,946,607. That means that Senators representing 40.5% of the population were able to prevent passage of Webb’s bill.

Whether this is a good or bad thing depends, of course, on one’s view of what good policy is, and reasonable minds of course can disagree about the merits of the Webb proposal, as a matter of policy or politics. Given the current nature of party representation in the Senate–in which Democrats hold both seats in several small states, including Rhode Island, Delaware, North Dakota, and Montana–the Senate’s equal representation rule does not skew solely in the favor of the Republicans, as it tends to do in the context of the electoral college. But if nothing else, it is important to recognize that sometimes the Senate will in fact be subject to super-supremajoritarian rules –when election patterns combine to aggregate the effects of constitutional requirements and the Senate’s own rules. Whether such rules will generally produce good policy certainly is not immediately obvious to me.


Law Review Placement Status Report

I have heard from colleagues about recent publication offers from some of the top law reviews, but I’m wondering what the process has been like for law review editors this time around. A few weeks ago, Dan Solove reported that there were more submissions earlier this cycle than there had been in previous years, and that many journals were facing substantial backlogs. Is this still the case? Have most journals filled their upcoming volumes, or are there still slots available? Have recent offers mostly been extended after expedited review, or from the long slog through the pile of fall submissions? I’d be interested to hear from the editors; feel free to leave comments or to email me directly.


Jurisdiction and Textualism

I just posted a draft of a paper on SSRN. It is called “Jurisidiction and Textualism,” and it is about the treatment by textualists of jurisdictional statutes, and what that treatment suggests both about textualism and about the broader debate over the relationship between Congress and the courts in crafting a jurisdictional regime. Here is the abstract:

Recent legislation has reinvigorated the scholarly debate over the proper relationship between Congress and the federal courts in matters of federal-court jurisdiction. The traditional view of jurisdiction-stripping is that Congress has virtually plenary power to determine the jurisdiction of the federal courts. Others have argued that there are substantial limits on Congress’s authority to deprive the federal courts of jurisdiction over certain matters. A similar debate has raged over the obligation of federal courts to exercise jurisdiction that Congress ostensibly has conferred. Since the debate over Congress’s role in crafting a jurisdictional regime last flared in full force, textualism has been ascendant as a methodology for interpreting statutes, and has had a profound impact on the way that judges—textualists and non-textualists alike—read statutes. The rise of textualism provides an important opportunity to update the long-standing debate over the proper roles of Congress and the courts in matters of federal-court jurisdiction.

Like the debate over congressional control of the federal jurisdictional regime, textualism is largely about the judicial role in a democracy. Textualists argue that only their methodology recognizes the properly limited judicial role, and they insist that judges must be faithful agents of the legislature, guided by the plain meaning of statutory text. To the extent that textualism has had a significant impact on judicial decision-making, particularly by the Supreme Court, we might expect to see a move towards strict interpretation of jurisdictional statutes, and a vindication, at least as a descriptive matter, for the strong congressional-control models. After all, if the textualist judge is supposed to act as a faithful agent of Congress, following the plain meaning of statutory text, then when Congress plainly withdraws jurisdiction, faithfully textualist judges can be expected to decline to exercise authority; and if Congress confers jurisdiction without qualification, then we might expect textualist judges to eschew arguments for implicit exceptions to the exercise of jurisdiction. In practice, however, textualism has been applied somewhat unevenly to jurisdictional statutes. Although the Court’s textualists have strictly read statutes that purport to divest the federal courts of jurisdiction, they have not been as consistent in applying textualism to statutes that appear, based on their plain language, to confer expansive grants of jurisdiction.

Textualism’s goal to limit the judicial role in a democratic society is advanced by strict interpretations of statutes purporting to divest the courts of jurisdiction. But when Congress appears to confer broad grants of authority—such as in the general federal-question statute—being a truly faithful agent based on statutory language will result in a more robust judicial role than some textualists might otherwise prefer. The treatment by the Court’s textualists of jurisdictional statutes suggests that the textualists’ urge to constrain judicial power has sometimes trumped the textualists’ demand that courts act as faithful agents of Congress by considering only the plain meaning of statutory language in deciphering Congress’s instructions.

This has implications both for textualism and for the larger question of the proper relationship between Congress and the courts in crafting a jurisdictional regime. It should force textualists to defend their approach more explicitly as a device for constraining judicial authority, and perhaps less as the optimal means for implementing a theory of faithful agency in statutory interpretation. And it suggests that, at least as a positive matter, the strong congressional-control models of federal jurisdiction have not yet fully prevailed, at least with respect to the question of the courts’ authority to decline to exercise jurisdiction that Congress ostensibly has granted.

You can download the paper here. I welcome any comments.


The Supreme Court and Law Review Articles

Last term, when the Supreme Court decided Philip Morris USA v. Williams, a case involving constitutional limits on the award of punitvie damages, I was surprised to find that the Court did not once cite an article by my colleague Tom Colby. In the case, a majority of the Court essentially adopted wholesale the argument that Professor Colby had advanced in a 2003 Minnesota Law Review article. (There is little doubt that Justice Breyer, who wrote the majority opinion, was aware of the article, because the parties’ briefs cited it repeatedly.) I then learned that Linda Greenhouse had previously reported that Chief Justice Roberts seems inclined against citing law review articles in opinions. (Greenhouse had described it as Roberts’s “seeming allergy to citing law review articles.”) I began to wonder whether this is a trend, and whether we can expect the Court to cite fewer and fewer law review articles in its opinions.

After an admittedly quick search, here is what I learned. From the October 2000 Term through the October 2004 term, the Court averaged 24.8 cases per term in which at least one opinion cited at least one law review article. In the October 2005 Term — Chief Justice Roberts’s first term — the Court decided 28 cases in which at least one opinion cited at least one law review article. (As Greenhouse reported, during that term, Roberts himself cited only one article, by Judge Friendly, for whom he had clerked.) But in the most recent term — the October 2006 term, during which the Court decided the Williams case — the Court decided only 16 cases in which at least one opinion cited at least one law review article. Here are the year-by-year numbers:

October Term 2000: 26

October Term 2001: 20

October Term 2002: 21

October Term 2003: 28

October Term 2004: 29

October Term 2005: 28

October Term 2006: 16

It is too soon to tell whether the decline in the most recent term signals the start of a trend or is just an aberration, although the reports about Roberts’s view of the relevance of law review articles suggests at least that this is a trend worth following. But let’s assume for a moment that it is part of a trend. Is there anything wrong with the Court’s ostensibly relying on arguments developed by academics without citing the sources of those arguments? (I am assuming for present purposes that the Justices (or at least the clerks) will be aware of the body of legal scholarship relevant to the questions before the Court.)

On the one hand, the Justices regularly adopt without citation arguments advanced by the parties in their briefs, and although there might be occasional grumbling from advocates who thought they deserved some acknowledgment, I have never heard anyone suggest that there is something problematic or dishonest about this approach. On the other hand, my sense is that, at least as a matter of tradition, the Court has generally cited authorities external to the litigation itself when its arguments are drawn directly from them. In addition, most law schools today stress to students the importance of attribution, in both legal advocacy and scholarship. Of course, failure to cite law review articles is not the same as academic dishonesty. But given the general preference for attribution, perhaps the Court’s failure to treat articles as persuasive authority — if in fact that is what it is doing — deserves some explanation. I am curious to hear what others think.


The Larry Craig Affair

When Dan Solove inivted me to serve as a guest blogger several months ago, I was a bit concerned that I would have nothing to blog about. Fortunately, the Larry Craig Affair (pun only partially intended) took care of that problem. My initial response to the Affair was to feel unrestrained glee about the fact that another hypocrite had been exposed. Craig, after all, supported both the Federal Marriage Amendment and a similar state-law effort in Idaho. He also apparently had refused to pledge not to discriminate against gays in hiring staff for his office. Like many others, I looked forward to days of awkwardness for Senator Craig and for the Republican Party generally. But I must confess that after the initial glow wore off, I began to find the Affair — and particularly the nature of the charges — troubling.

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