Category: Constitutional Law


Gay Marriage in New Jersey

Courtesy of Howard is this article from Newsday describing the case pending in New Jersey which challenges that state’s restriction of marriage to opposite-sex couples. In the interest of full disclosure, I favor allowing gay couples to marry, but I would prefer that decision be made by state legislatures. I am not yet convinced that the Equal Protection Clause of the federal Constitution requires state recognition of gay marriages, though I understand the parallels to Loving v. Virginia.

I am curious to see what the New Jersey Supreme Court does with the case, from a political perspective as well as a legal one. Assume that the court thinks the proper result is to strike down the restriction. Should the court “vote its sincere preferences,” as political scientists say, the practical effect in the short term will be a tremendous electoral advantage for the Republicans, as happened in response to the Massachusetts ruling perhaps including the re-election of the President. Surely the last thing the New Jersey Supreme Court wants to do is help Republicans. Heck, that court’s decision in the Doug Forrester case in 2002 was far more transparently partisan than any ruling in Bush v. Gore. Some political science suggests that the court will shade its interpretations so as not to antagonize the other branches, which are not accepting of gay marriage, but the evidence is far from conclusive. See, e.g., Jeffrey A Segal, Separation-of-Powers Games in the Positive Theory of Congress and Courts, 91 Am. Pol. Sci. Rev. 28 (1997); William N. Eskridge, Jr., Reneging on History? Playing the Court/Congress/President Civil Rights Game, 79 Cal. L. Rev. 613 (1991).

For this reason, however, the court is in a no-win posture. If the court mandates gay marriage, it triggers the ire and votes of Republicans as well as opening itself to criticism for being judicial legislators. If it defeats the claim, it will be accused of doing so for political reasons rather than legal ones. Vermont-style civil unions are another option, though the article reports that New Jersey already grants domestic partnership developments. If the court tries to mandate civil unions its ruling may be the least defensible of all, for it would allow the state to create two classes of couples while effectively conceding that there is no reason not to give homosexual couples all the advantages of marriage.

It’s interesting that the provision apparently at issue is the New Jersey Constitution’s provision that “all persons are by nature free and independent” — not any provision explicitly invoking the ideal of “equality.” I know nothing of the way in which this clause has been interpreted in the past, but isn’t it ironic that the persons invoking the clause want the state to recognize their dependence on their partners, and for the state to recognize a continuing obligation to care for them? Free and independent indeed.


The Meaning of “Well Settled Law”

Lawyers use the phrase liberally in their briefs; judges sprinkle their opinions with it. But hardly anyone agrees what it means. The phrase: “well settled law.” One of the most interesting exchanges occurred during the Alito hearings over this very phrase:

Ms. Feinstein asked whether Judge Alito did not agree that Roe “was well settled in court.”

He said, “It depends on what one means by the term ‘well settled.'”

This was followed by an extended back-and-forth and careful parsing of what the phrase may or may not mean to Alito.

It would be a mistake to see Alito’s equivocation as merely a product of confusion over terminology. Indeed, Alito’s hesitation to accord Roe the status of “well settled law”–he finally said only that it must be accorded “respect” as “very important precedent”–cannot be understood in an internally coherent way.

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Hail to the (New) Chief: Death With Dignity-Part III


So, what might be gleaned from the New Chief’s silent joining of Justice Scalia’s dissenting opinion in Gonzalez v. Oregon? First, as to be expected (at least for now), he is influenced more by his experiences as a former executive branch lawyer and member of the political elite than he is by any popular backlash against the unitary executive model.

Second, national interests trump state interests–even where there is ambiguity in the federal statute. His own questions at oral argument, particularly his concern for the uniformity and supremacy of federal law, suggested this outcome. Federalism is messy, and it appears he is unwilling to countenance too much muss. He, like Scalia, is willing to read Congress’ enumerated powers broadly (and the core of state’s rights narrowly in advance of national interests)–even when the strongest interest appears to be in cultivating moral standards. This is bad news for proponents of interstitial federalism.

Third, his willingness to sign Scalia’s dissent in toto–and thereby subjugate his own ego in a high-profile matter–shows that he is as savvy as his confirmation hearings suggested. The practice of writing separately has almost become a custom with the Rehnquist Court. He is willing to buck this trend, to allow Scalia to speak for this coalition on this day with a single voice, and to build his alliances carefully–starting with his natural friends.

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Death With Dignity–Part II

Justice Kennedy’s opinion affirmed Oregon’s statute, and overturned Attorney General Ashcroft’s interpretive rule claiming that the use of controlled substances to assist suicide is not a medical practice and therefore unlawful under the CSA (Controlled Substances Act). Technically, the case involved whether the Attorney General’s interpretation should be accorded any deference; here, the Court concluded “no.”


But I have to think that Oregon is very, very lucky regarding the timing of the case.

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Supreme Court Upholds Oregon’s Death With Dignity Act

In a 6-3 decision, the Court today upheld Oregon’s physician-assisted suicide law. With the Court’s makeup in flux, there was much speculation that if the conference vote was 5-4, the case might be held over for reargument. It appears that the key was that the federalism position won over Justice Kennedy, who was visibly torn at oral argument. Assigning him to write–a privilege of the most senior Justice in the majority–helped to keep him on board. A decisive majority meant there was no reason for Justice O’Connor not to participate. Off to class–more analysis later.


The Confirmation Hearings: A Meaningless Ritual

alito2a.jpgThere is a lot of discussion about the lack of meaningful revelations in the Alito confirmation hearings. The Roberts confirmation hearings were also devoid of much meaningful substance as well.

Basically, the nominee must say that he’ll have an open mind, that he will decide cases according to the “rule of law,” that he has respect for precedent, and that he won’t be a “judicial activist.” The nominee must sit calmly while Senators bluster and wait out the storm.

We’re learning next to nothing of importance at these hearings. With the exception of Robert Bork and Clarence Thomas, do the confirmation hearings really reveal much of anything at all?

One possible reason for this state of affairs is that the lessons of the Robert Bork hearing are well-known. Everybody knows not to reveal too much, not to lay out their full hand on the table.

Another reason is that much vetting and discussion occurs before the hearing. With Alito, there were few surprises at the hearing. Most of the discussion occurred beforehand in the media and in the blogosphere. Miers, for example, had a hearing of sorts and was rejected before her official confirmation hearing had even begun.

So perhaps we should stop looking to the hearings for much meaningful substance. Any real substance comes in the media and blogospheric discussions beforehand. The hearings are little more than an empty ritual.


Reapportionment, Originalism, and Supreme Court Nominees

The most troubling aspect of the politicization of the Senate confirmation process for me is its undermining of legal theory. I generally applaud the discussion of legal issues in confirmation hearings because I find it hard to tolerate the alternative, which is the anti-democratic rule by judges who too often base their decisions on nothing more than their own policy preferences. But there is a downside to public involvement in judicial selection, too, and the ideal of “law” suffers to the extent that the people exact concessions from nominees that they will not reach results that are too unpopular.

Most Americans, I suspect, are attracted to a considerable extent to the idea that judges should not change the Constitution to suit their policy preferences or their assessments of the needs of modern society. “Legislating from the bench,” in other words, strikes a chord with many Americans. But while society may agree with this abstract proposition, society really does not care about abstract propositions. Instead, it cares about results, and to the extent that coherent theory is inconsistent with favored case outcomes, it is the theory that is thrown overboard.

If any Supreme Court nominee were to admit openly that he is an originalist and accordingly views Griswold, Roe/Casey, Gideon, Mapp, Miranda, etc., as wrong, he would stand little chance of confirmation. I suspect (but hope otherwise) that even if he were to say that he would follow existing precedent because of stare decisis, the Senate would defeat the nomination. It has unfortunately become something of a requirement that nominees not only agree to acquiesce in popular past decisions, but that they think they were right when decided.

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Judge Alito and the Rule of Law


I was wrong.

In this post, I predicted that because of a footnote in a 1985 strategy memo, Judge Alito would be unlikely to find much rhetorical purchase by making “paeans to the rule of law” in his confirmation hearing. Indeed, given the Judge’s evident disdain for rule of law and precedent-based defenses of Roe, I thought that the footnote might force Judge Alito to “actually say that he believes Roe should be reversed.”

Today’s headline from the Times:

“Alito Tells Senators That ‘Rule of Law’ Is Paramount”.

That will teach me to try to read tea leaves. It also suggests the tremendous rhetorical flexibility of the concept of the “rule of law.” Now, Nate has already once taken Kaimi and I to task for our co-authored paper that had suggested the “rule of law” is almost entirely a contentless political slogan. Nevertheless, it it still evident to me that appeals to the “rule of law” in the context of public debate are almost always a form of constitutional puffery. Which probably helps to explain why Judge Alito’s “Footnote 10” problem isn’t much of one after all.


The Fundamental Issue of Presidential Power

president1.jpgNoah Feldman (law, NYU) has a very thoughtful essay in the New York Times Magazine about the rise of presidential power. He writes:

Not since Watergate has the question of presidential power been as salient as it is today. The recent revelation that President George W. Bush ordered secret wiretaps in the United States without judicial approval has set off the latest round of arguments over what the president can and cannot do in the name of his office. Over the past few years, the war on terror has led to the use of executive orders to authorize renditions and the detention of enemy combatants without trial. . . . The limits of presidential power will almost surely be a major topic of discussion during Samuel A. Alito Jr.’s Supreme Court confirmation hearings, which are scheduled to begin this week.

The stakes of the debate could hardly be higher: nothing is more basic to the operation of a constitutional government than the way it allocates power. Yet in an important sense, the debate is already long over. By historical standards, even the Bush administration’s critics subscribe to the idea of a pre-eminent president. Administrative agencies at the president’s command are widely understood to be responsible for everything from disaster relief to drug approval to imposing clean-air standards; and the president can unleash shock and awe on his own initiative. Such “presidentialism” seems completely normal to most Americans, since it is the only arrangement most of us have ever known.

For better or worse, though, this is not the system envisioned by the framers of the Constitution. The framers meant for the legislative branch to be the most important actor in the federal government: Congress was to make the laws and the president was empowered only to execute them. The very essence of a republic was that it would be governed through a deliberative legislature, composed carefully to reflect both popular will and elite limits on that will. The framers would no sooner have been governed by a democratically elected president than by a king who got his job through royal succession.

Feldman goes on to describe how this growth in the power of the president occurred:

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Hypothetical: What If President Bush Were Correct About His Surveillance Powers?

george-bush1.jpgThere’s been some terrific analysis in the blogosphere about whether President Bush is correct that he had the power to authorize warrantless surveillance. (See here and here for a roundup of posts.) The arguments thus far focus on what the President has already done, but the President has stated that he will continue the warrantless surveillance “for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens.”

Suppose the President is right that he has the power to do this based on his “inherent authority” as Commander-in-Chief. The implications are quite alarming. It means that the President, in his sole discretion, can secretly authorize the NSA to engage in electronic surveillance on U.S. citizens until the War on Terrorism is over. This is a war without a foreseeable end. Under his argument, there seems to be no reason why he can’t authorize other agencies to engage in surveillance, such as the FBI and CIA. And why does it need to be limited just to wiretaps? Perhaps video surveillance, bugs, searches of homes, gathering documents, and more.

Under his argument, Bush could continue to ignore the requirements of any law that stands in his way. What could Congress do? Congress could try to enact a law to clarify that it wants the President to abide by existing laws. Of course, the President could veto that law, but suppose Congress overrode the veto. According to the President’s logic, he could still say that his “inherent authority” allows him to ignore it.

The problem with Bush’s argument is that he has articulated virtually no conceivable limits to his power. The stakes of the debate aren’t just about what the President has already done. They are about what the President has defiantly declared he has the power to do in the future.