Category: Constitutional Law


The intellectual origins of Roe . . . in a law review


Here’s a nice piece of trivia: what law review article laid the blueprint for Roe v. Wade?

Thanks to Orin Kerr’s link to Judge Raymond Randolph’s thought-provoking speech to the Federalist Society on Judge Friendly’s unpublished 1970 draft opinion on abortion rights, I learned something about my school’s history: that Roy Lucas, then an assistant professor at the University of Alabama, published an article in 1968 in the North Carolina Law Review, which (according to Judge Randolph) “laid out a blueprint” for applying Griswold to state anti-abortion laws. Of course, proving influence in the evolution of constitutional thought is a remarkably difficult enterprise. But some knowledgeable people nevertheless believe the article to have been quite important. N.E.H. Hull, Williamjames Hoffer, & Peter Hoffer include an excerpt from the article in their important book, The Abortion Rights Controversy. They say of Lucas’ article that it was a “vital source of ideas for the frontal attack on criminal abortion statutes.”

Hmm, I thought upon reading this, how surprising. I try to pay some attention to my school’s history. I’ve heard some pretty interesting stories about Alabama law faculty. For example, Professor Jay Murphy‘s advocacy in the pages of the Alabama Law Review helped defeat some of the legislature’s proposals to resist desegregation in the immediate aftermath of Brown.

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Legal Realism and the Lefty Blogosphere

The dispute between Prof. Althouse and various lefty blogs continues. Most recently, “Armando” of Dailykos posted this screed. Armando concludes:

In short, does not Althouse admit that she too, is a legal realist? And given that admission, is it not fair to expect that Althouse would approve of a query in detail regarding Alito’s views on legal issues? Is it not fair to expect that Althouse would not condemn critiques of the results of Alito’s opinions without trying to engage in hypertechnical “gotcha-isms”?

I am interested in the idea that legal realism entails a commitment to “query in detail . . . Alito’s views on legal issues.” There are lots of different types of folks who we might think of as legal realists, and I doubt that they could find a consensus about a definition of the school of thought, let alone a position on the scope of the Senate’s advise and consent role. But it is an provocative idea, wrapped in some hyperbolic clothing.

Armando continues:

[E]ven a legal realist like myself understands that the judicial rules place limits on how much wiggle room judges have to achieve their desired results. Concepts like precedent, consistency, rules of construction, political question doctrine, etc., place limits on the ability of judges to render any result they deem the correct one. And in a case like Bush v. Gore, adhering to those rules is more important by a factor of 10 than in any other case. It is precisely because of what was being decided that the SCOTUS’ actions in Bush v. Gore were egregious in a manner almost unequalled in the history of the Court. They should never have taken the case period . . .

Finally, what was the essential difference between the actions of the Florida Supreme Court as compared to the SCOTUS’? Very simple. The Florida Supreme Court HAD TO DECIDE the case. It had no choice. It could have ruled in favor of Bush or in favor of Gore. But it HAD to rule.

The Supreme Court of the United States had no such compulsion. Cert denied is all they had to say. They chose to do otherwise.

I think Armando is flat wrong here. Gore v. Harris, the ultimate Florida Supreme Court merits decision in the litigation, appears to be an exercise of discretionary jurisdiction under Section 3(b)(5) of the Florida constitution. But maybe that is the type of “hypertechnical gotcha-ism” that I ought to be avoiding. Whoops.


Shifting Around on the Supreme Court

supremecourt8.jpgIn an interesting article in the Washington Post, Lee Epstein (law and political science, Washington University) and Jeffrey Segal (political science, Stony Brook) write that a judge’s past judicial record is not necessarily a good indication of how they’ll decide cases as a Supreme Court justice. They observe:

In the case of Souter, initial judgments about how he might vote were downright wrong. The clear expectation, based largely on his lower court record, was that Souter would be a rather consistent conservative voter — even more to the right than Reagan appointees Kennedy and O’Connor, at the time of their nominations. Souter, of course, is a rather consistent voter — on the court’s liberal wing.

In retrospect, we probably should not be surprised by this turn of events. Lower court records can actually provide disinformation about a nominee’s true preferences. Judges on lower courts, after all, are bound by Supreme Court precedent, and that constraint may explain why Souter — thought to be moderately conservative as a state and federal appellate court judge — emerged as liberal once on the high court. . . . While Supreme Court nominees “respect” precedent, as they unfailingly tell the Senate Judiciary Committee, once elevated they are not compelled to follow it. Freed from that constraint, the “real” Souter came into view.

I previously blogged here about how a judge might change when no longer strictly bound by Supreme Court precedent.

Epstein and Segal also explain that focusing on a nominee’s views on the burning issues of the day may not help us in understanding where the nominee will come out on the issues of tomorrow:

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Froomkin’s U.S. Constitution Quiz

constitution1.jpgOver at, Michael Froomkin (law, Miami) has an interesting quiz about the U.S. Constitution. Sample questions:

Could Congress constitutionally abolish the entire armed forces and the Pentagon, leaving the nation defenseless?

May Congress pass secret laws? If so, may (must?) the courts enforce them?

Is there anything in the first seven articles of the Constitution that prevents the federal government from awarding you a $1 million personal bonus?

What is the minimum number of justices constitutionally required to form a Supreme Court?

If Congress sets out to minimize the President’s powers, can it abolish his entire staff? Evict him from the White House?

Many more questions over at


When Alito Is Unbound: On Mining Judge Alito’s Judicial Record

handcuffs1.jpgAll eyes are now scrutinizing Judge Alito’s judicial record. His opinions are being mined for clues about where he stands on many key issues. The University of Michigan Law Library, for example, has posted an extensive collection of Alito’s opinions. But I’m wondering how much weight we should give an appellate court judge’s prior opinions in assessing what kind of Supreme Court justice her or she will be.

Court of appeals judges often sit in a very constrained position. They are constrained by the findings of fact and the issues raised on appeal at the district court level. They are also constrained by the precedent of their own court as well as that of the Supreme Court.

Following precedent by a higher court (and especially the Supreme Court) is a foremost imperative for appellate court judges. If they don’t, they’ll either be slapped down by the Supreme Court, and they will be viewed as lawless and derelict in the legal community.

But when a judge is transformed to justice, all of a sudden Supreme Court precedent becomes much less sacred. Justices can bend and twist the precedent; they can overrule cases; they can radically alter the direction of the law. What happens when an appellate judge is unshackled in this way?

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The Problem with Superprecedent

constitution5.jpgJack Balkin (law, Yale) has an excellent post over at Balkinization about my colleague Jeffrey Rosen’s New York Times essay about superprecedents. The notion of superprecedent is that there are cases that are so firmly entrenched that they ought not to be overturned despite being in error. Roe v. Wade is the superprecedent that most have in mind.

In his post, Jack Balkin explains that a strategy of many conservatives is to “accept Roe as settled (as modified by Casey) but begin to chip away at it over the long haul.”

He explores three justifications for superprecedents. The first justification is that a precedent has held on for a long time and weathered some attacks. But this justification does little to justify why the precedent deserves to stand.

A second justification is that a lot of law has built up upon a precedent. The precedent serves as “a support beam in a house that, even if not installed correctly or in the right place, cannot now be removed without seriously endangering the safety of the occupants.”

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What Should Democrats Do Regarding Harriet Miers?

miers1a.jpgPaul Horwitz at PrawfsBlawg raises the difficult strategic dilemma for Democrats on the Harriet Miers nomination:

Therein lies the Democrats’ dilemma — actually, a double dilemma. 1) They do not want to oppose Miers loudly if they think her replacement might be a Luttig or a Brown, both because those judges are a more potent threat to their desired outcomes and because such nominations would be a political and fundraising prize for conservatives. 2) They also may not want to be on record as viewing mediocrity as a disqualification for the Court, since it constrains their own future choices.

Put slightly differently, the argument for Democrats in favor of Miers is this: Although Miers is relatively unknown, there are some indications that she might be moderate, even liberal, on key issues. An alternative replacement for Miers might well be much more firmly committed to conservative positions and be a more reliable conservative vote. If Miers turns out to be a consistent conservative vote, there are many indications that she won’t be a great superstar on the Supreme Court, and hence, she won’t be as effective as a replacement who might very well be a superstar. Furthermore, if Miers gets appointed, it will perpetuate great tensions amongst the Republicans.

Should this argument incline Democrats toward supporting Miers?

The liberal and political strategist in me is enticed by this argument. On the other hand, the intellectual and academic in me bristles at putting somebody on the Supreme Court who, by all indications thus far, does not seem to have the qualifications to be a great Supreme Court jurist. Ideally, I want a Supreme Court filled with brilliant distinguished jurists.

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Is There One Best Method of Constitutional Interpretation?

constitution4.jpgAlthough the Supreme Court feels some pressure for consistency via precedent, it doesn’t seem to strive at all for consistency in interpretive approach. Thus, the Court’s opinions are all over the map when it comes to the method of constitutional interpretation. Sometimes the Court reads the Constitution broadly and dynamically; sometimes it interprets the Constitution narrowly; sometimes it becomes a textualist; sometimes it becomes obsessed with original intent. And all this can happen in the same year!

When it comes to interpreting the Constitution, the Court will pay attention to precedent as to the substantive meaning of a constitutional provision, but it will often repeatedly shift around in its interpretive method. There seems to be little attempt to develop a precedent for the appropriate method of constitutional interpretation. Institutionally, why does the Court strive for consistency with regard to substance but not consistency with regard to method?

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What Exactly Does “Legislating from the Bench” Mean?

judge2a.jpgIn the discussions surrounding the recent Supreme Court appointments, it seems that the big judicial no-no is to “legislate from the bench.” Orin Kerr has an interesting post about the ambiguity of this phrase as used by the White House. What exactly does “legislating from the bench” mean?

Currently, the phrase “legislating from the bench” means little more than “I know it when I see it.” Despite being thrown about rather vaguely and carelessly, the notion of not legislating from the bench appears to be based on a particular approach toward constitutional interpretation, one that I will call the “principled conservative process-based approach.” By “process-based,” I am referring to conservatives who seek to articulate an approach toward judging–a method–not just a set of results they desire for particular cases.

So what is the method? As I understand it, the method involves a combination of at least three elements: (1) a reluctance to stray beyond the constitutional text or a commitment to interpreting the Constitution according to original intent or a combination of both; (2) a posture of judicial deference toward the Legislative and Executive Branches, as well as other government institutions; (3) a respect for precedent and a Burkean view toward making radical changes in the law.

Far too often, the conservative process-based approach is thought and spoken about with Roe v. Wade in mind. But I wonder what applying the conservative process-based approach would have meant for some of the other famous Supreme Court cases of the past century. Consider the following cases:

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Will the Blogosphere Affect the Miers Appointment?


VCstats3.jpgThe blogosphere is erupting with reactions to Harriet Miers nomination. Will the blogosphere affect the confirmation? What kind of effect will it have?

My guess is that the blogosphere will play an important role. Many blogs have experienced an influx of traffic this week after the nomination was announced, such as The Volokh Conspiracy, which jumped from about 25,000 visits per day to over 40,000. [The image on the right is of The Volokh Conspiracy’s visitor traffic over the past month.] These blogs are being read by those in all corners of government. They are thus influential in shaping the debate, especially among those in powerful positions. Blogs are also helpful in getting a read on what people very engaged in politics are thinking.

The confirmation hearings have largely become a meaningless ritual, where little about a nominee is revealed, where nominees merely dodge the tough questions and provide assurances that they won’t “legislate from the bench.” The more meaningful discussions are occuring in the blogosphere. Perhaps this is where Miers will be most thoroughly vetted and discussed.