Sunday, July 29, 2018

The Travel Ban Decision

The shouting has largely subsided. The Court's ruling has settled in, and the outward manifestations of euphoria and despair have largely moved on to other issues. Despite what has been said--both leading up to the decision and immediately thereafter--it was neither one of the very best or very worst decisions in recent memory. Not even among this past term's collection of 5-4 rulings.
[Disclosure: I do think that this case was close on the legal validity of "Travel Ban #3." That being said, I do not think it's at all close whether President Trump's language and behavior on this matter have been disgraceful, dangerous, and contrary to basic American constitutional principles. I would have voted with the dissenters.]

As the world knows, the Supreme Court upheld the 3rd version of President Trump's so-called "travel ban." After several courts had invalidated the first and second versions, a third one was drafted. This executive order--Proclamation No. 9645 (as later amended by Proclamation No. 9723)--suspended the entry into this country of nationals from seven foreign nations. Five of the seven mostly-Muslim countries from the original executive order remained on the list; North Korea and Venezuela were then added.

In a 5-4 decision, the Court ruled that the Proclamation was within the "extraordinary" authority given to the President under the Immigration an Nationality Act, specifically, §1182(f).

Let's get a sense of the majority opinion, authored by Chief Justice John Roberts, and the main dissent by Justice Sonia Sotomayor. The Chief Justice's opinion for the Court included the following:
A “total and complete shutdown of Muslims entering the United States” is needed.
“Islam hates us.”
The United States is “having problems with Muslims coming into the country."
Europe has instituted plans to “ban Muslim immigration…You know my plans. All along, I’ve been proven to be right.”
The first executive order was a needed “Muslim ban."
The second executive order, regrettably, is “watered down."
The “travel ban . . . should be far larger, tougher, and more specific [but] stupidly that would not be politically correct.”
Justice Sotomayor's dissenting opinion included these lines:
A "total and complete shutdown of Muslims entering the United States" is needed. 
"There is great hatred towards Americans by large segments of the Muslim population."
"They believe that "violence against Americans here in the United States is justified as a part of the global jihad." 
"Shariah authorizes such atrocities as murder against nonbelievers who won’t convert, beheadings and more unthinkable acts." 
"It is obvious to anybody the hatred is beyond comprehension." 
"Our country cannot be the victims of the horrendous attacks by people that believe only in Jihad." 
"Islam hates us." 
"We can’t allow people coming into this country who have this hatred of the United States . . . [a]nd of people that are not Muslim.” 
“We’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” 
Muslims “do not respect us at all.” 
“You know my plans [to“ban Muslim immigration”]. All along, I’ve proven to be right.” 
"The lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” 
“Study what General Pershing . . . did to terrorists when caught [i.e., the apparently apocryphal story about General Pershing’s massacre of Muslims in the Philippines]. There was no more Radical Islamic Terror for 35 years!” 
Of course, both the Chief Justice and Justice Sotomayor were quoting Donald Trump, while he was a candidate and after his election. Also, of course, neither one of them were endorsing a single word. But then, what to make of those words and the sentiments that they expressed when assessing the legal validity of the travel ban?

For all 4 dissenting Justices, the travel ban was based on little more than Donald Trump's clearly manifested bigotry against Muslims. The President's hostility toward a religion violated fundamental American constitutional traditions and principles and, as such, rendered the resulting travel ban invalid under the 1st Amendment. That was one side of the controversy. The one-vote short-of-winning side.

The 5-vote winning side emphasized that the power vested in the office of the President with regard to immigration and other travel into this country is "extraordinary." First, however, Chief Justice Roberts dealt with Donald Trump's anti-Muslim outbursts and other fits of fury. He didn't try to ignore them, and he left no doubt that he found them shameful.

Addressing presidential authority and how that authority has been nobly used in the past, the Chief Justice remarked:
Our Presidents have frequently used that power to espouse the principles of religious freedom and tolerance on which this Nation was founded. In 1790 George Washington reassured the Hebrew Congregation of Newport, Rhode Island that “happily the Government of the United States . . . gives to bigotry no sanction, to persecution no assistance [and] requires only that they who live under its protection should demean themselves as good citizens.” President Eisenhower, at the opening of the Islamic Center of Washington, similarly pledged to a Muslim audience that “America would fight with her whole strength for your right to have here your own church,” declaring that “[t]his concept is indeed a part of America.” And just days after the attacks of September 11, 2001, President George W. Bush returned to the same Islamic Center to implore his fellow Americans—Muslims and non-Muslims alike—to remember during their time of grief that “[t]he face of terror is not the true faith of Islam,” and that America is “a great country because we share the same values of respect and dignity and human worth.” 
Then the Chief Justices added:
Yet it cannot be denied that the Federal Government and the Presidents who have carried its laws into effect have—from the Nation’s earliest days—performed unevenly in living up to those inspiring words.
Hmmmm, "unevenly." Roberts then went further, albeit implicitly:
But the issue before us is not whether to denounce [Trump's] statements.
The denunciation to be inferred could hardly be missed. Still, explaining his majority's view of the case, the Chief Justice continued:
We must consider not only the statements of a particular President [as in the current one], but also the authority of the Presidency itself.
Roberts then outlined the reasons for upholding travel ban #3:
  • it does have some legitimate basis in national security interests
  • religion is nowhere mentioned
  • only a small fraction of the world’s Muslim population is covered
  • it covers only countries that Congress and prior administrations designated as national security risks
  • it is the result of a comprehensive review process by multiple Cabinet agencies
For the majority, those factors placed "Travel Ban #3" well within the previously emphasized "extraordinary" constitutional and statutory authority the President has over such matters. For the four dissenters, however, the clear religious hostility motivating the travel ban undermined any ostensibly legitimate purposes. As Justice Sotomayor summed up the dissenters' view at the outset of her opinion:
Based on the evidence in the record [i.e., Donald Trump's language and behavior outlined by both the majority and dissent], a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. 
So, the extremely broad power given to the office of the President, by the Constitution and by legislation, versus the unanimously acknowledged recurrent manifestations of religious bigotry by a particular president. That was the question. It was a close one. And one vote made the difference.

Now, for one final observation. What about that 1-vote difference? That 5-4 vote? All 5 Republicans on one side. All 4 Democrats on the other. Come on! What are the mathematical odds that such a partisan split in the vote could result if this case were actually considered in a neutral, detached, non-biased, non-partisan manner by each of the nine Justices? To pose the question is to answer it.

Not a single Republican Justice saw merit in the Democratic Justices' position? And vice-versa? Regardless of one's personal view of this case, it seems impossible to deny that the outcome in this case was the result of partisanship more than any independent, impartial judicial review. Ugh!--again for this current Court.

Okay, allow me one additional "final" observation. In her dissenting opinion, Justice Sotomayor compared the Court's decision to Korematsu v. United States (1944), where the Court had upheld the internment of Japanese-Americans during World War II. Naturally, Chief Justice Roberts disputed that comparison in his majority opinion.

But the Chief Justice then took "the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” (Quoting from the dissenting opinion in that case of [Albany Law School's favorite son] Justice Robert H. Jackson.)

Tuesday, July 24, 2018

(Part 2) Questions for Nominee Kavanaugh

So what about this "originalism" and "settled principles" approach to judicial decision-making that Judge Kavanaugh touts? Sounds fine. We'll see.

In the last post (see Part 1), we scrutinized one branch of the originalist/textualist judicial "philosophy" embraced by Judge Brett Kavanaugh. Specifically, the "not-in-the-text" insistence that judges ought not to "make up" rights that are "not in the text of the Constitution."

That superficially appealing, pseudo-constitutional nonsense--yes that's harsh, but that's really all it is--ignores the fact that most of our most basic liberties don't happen to be in the text. They are nowhere to be found in the Constitution. That document is not, and absolutely was never intended to be, a catalog of rights in American free society--let alone an all-inclusive catalog.

Beyond that, the Founders and Framers actually anticipated that such "not-in-the-text" nonsense would be raised. Madison, Hamilton, and others were originally opposed to any declaration of rights that might possibly be deemed to be a complete list. So when they eventually decided to include such a list, which we now call the Bill of Rights, they included a 9th Amendment which makes explicit that the list is anything but complete.

And yet, Judge Kavanaugh--like others who don't happen to like some of the unlisted rights that have nevertheless been recognized--has somehow repeated that nonsense. It is really difficult to believe that he actually believes it. (Or that his hero, the late Justice Scalia--who opposed gay rights and same-sex marriage and a woman's right to choose and the "incorporation" of the Bill of Rights as due process protections against the states--actually believed it either.) Unless, of course, Judge Kavanaugh means something very different than what he is saying.
(Again, see Part 1 for a very small sampling of the most basic rights we enjoy in American free society which Kavanuagh's "not-in-the-text" nonsense would preclude.)

Now, let's consider that other branch of the originalist/textualist judical "philosophy" that Judge Kavanaugh has embraced. This branch has to do with limiting constitutional rights and liberties to what was specifically intended when the provisions were originally adopted. So no policy-making decisions, and especially not those that diverge from--or enlarge--what was originally intended. But Kavanaugh does seem to be a little flexible on this score. He also speaks about "settled principles" that should bind judges. Apparently, even if those settled principles were not part of the "original intent."

Here is how he put it himself last year, in an address at Notre Dame law school, in honor of Justice Scalia:
Justice Scalia...explained that federal judges are not common-law judges and should not be making policy-laden judgments. Along the same lines, Chief Justice Roberts has famously articulated the vision of the judge as umpire.
I believe very deeply in those visions...By that, I mean a neutral, impartial judiciary that decides cases based on settled principles without regard to policy preferences....
There is often a debate about originalism versus living constitutionalism. Justice Scalia famously promoted originalism. Originalism is akin to textualism, but it takes account of the fact that the meaning of a word might have changed from the time of enactment to today. When that has occurred, the meaning at the time of enactment controls.

So 1) original meaning of the text and 2) settled principles. Does Judge Kavanaugh--like Justice Scalia before him--really believe that? In the abstract? In practice?

To be fair, it should be acknowledged that this original intent and settled principles vision of the judicial role is not preposterous. No, it is not utter nonsense like "not-in-the-text." It is actually one view of judicial restraint that leaves change and policy-making, as much as possible, to the two democratic--i.e., popularly elected--branches of government. It views judicial review--especially when it results in invalidating the actions of those other branches--to be largely anti-democratic, because it not based on popular will.

Accordingly, in a democratic society, such a restrained view of the judicial role calls for considerable deference to the politically elected branches.
(Of course, as even Judge Kavanaugh would presumably agree, judicial review is most essential when it actively protects fundamental rights despite what is popular and, indeed, despite being contrary to what the politically elected branches have done.)

But if this vision of "original intent" and "settled principles" is not utter nonsense, it is at the least very troublesome. The consequences of its application would be drastic. And that is why it is rarely, if ever, adhered to or admitted to by the self-proclaimed devotees when confronted with its implications. That vision is typically raised only to criticize those still-controversial decisions that the devotees happen to dislike.

When confronted with judicial landmarks that we cherish as Americans, insistence upon "original intent" or "settled principles" almost always diminishes or is more palatably redefined. Because these landmark decisions, most of which we now take for granted, were possible only because "original intent" and "settled principles" were disregarded or rejected by the Supreme Court.

Let's consider just a few such landmarks--and the constitutional doctrines they adopted that we now take for granted. Again, none of them would have been possible if  the Court had adhered to "original intent" or "settled principles." What about these:
  • Outlawing racial segregation--contrary to original intent and to the settled principles at the time. In its 1954 decision in Brown v. Bd. of Ed., the Court disregarded the original narrow purpose of the post-Civil War 14th Amendment, specifically the Equal Protection Clause, which absolutely was not meant to end the separation of the races. It would never have been ratified in 1868 with such an understanding. Also, the Court in Brown overruled the settled principle of "separate but equal," which had been the law of the land, endorsed by the Court in 1896 in Plessy v. Ferguson.
  • Legalizing interracial marriage--contrary to original intent and to settled principles at the time. In its 1967 decision in Loving v. Virginia, the Court again disregarded the original purpose of  the Equal Protection Clause. It held that discrimination against interracial couples was unconstitutional. It also disregarded the original meaning of the Due Process Clause and recognized a constitutional right to marry. A right of interracial marriage was absolutely no part of the 14th Amendment's purpose in 1868, and ratification of that amendment would have been doomed if it were. Moreover, the Court's ruling in Loving was contrary to the settled principles at the time that states were free to regulate marriage, and that anti-miscegenation laws were constitutional, just as the Court had held in its then-longstanding precedent in Pace v. Alabama (1883).
  • Applying Equal Protection to women--contrary to original intent and to settled principles at the time. In its 1971 decision in Reed v. Reed [Yes, it took that long!], the Court once again disregarded the original narrow purpose of the 14th Amendment's guarantee of equal protection (i.e., insuring citizen rights to the newly freed black slaves), and applied it to require that laws treat women equally to men--something absolutely not intended in 1868. Indeed, the "settled principles" at the time Reed was decided in 1971 had allowed discriminatory treatment of women--e.g., Bradwell v. Illinois (1873) [women may be barred from practicing law]; Strauder v. West Virginia (1879) [women may be barred from jury service]; etc., etc., etc. [BTW, Judge Kavanaugh's originalist hero did insist that the Equal Protection Clause did not apply to women.]
  • Legalizing birth control for married couples--contrary to original intent and to settled principles at the time. In its 1965 decision in Griswold v. Connecticut, the Court recognized a fundamental right of marital privacy--including intimate relations--which was not part of the original meaning of any particular provision in the Constitution. Moreover, the Court disregarded the well-settled principle that the regulation of marriage and sexual morality were left to the states.
  • Outlawing racial discrimination in hotels and restaurants--contrary to original intent and to settled principles at the time. In its 1964 decision in Heart of Atlanta Motel v. U.S., the Court upheld the Civil Rights Act of 1964, which prohibited racial discrimination in public accommodations, even if privately owned. The Court did so by enlarging the original meaning of Congress's commerce power, extending it to the impact of travelers on interstate commerce. The Court also disregarded the settled principle, from the Civil Rights Cases of 1883, where it had held that the similar anti-discriminatory provisions of the Civil Rights Act of 1875 were unconstitutional exercises of congressional authority.
  • Requiring a warrant for searches of private activities--contrary to original intent and to settled principles. In its 1967 decision in Katz v. U.S., the Court enlarged upon the 4th Amendment's original search and seizure rights and held that protections were not limited to the items specifically mentioned in that Amendment--i.e., "persons [bodies], houses, papers, and effects [personal property]." Rather, the Court in Katz applied 4th Amendment protections to the privacies that people could reasonably expect in our free society. So, for example, a warrant would be required to electronically eavesdrop on a private phone conversation--even though neither "phone" nor "conversation" is mentioned in the 4th Amendment. Also, the Court rejected settled principles from a long line of cases that had interpreted the 4th Amendment in that much more restricted literalist manner. (E.g., Olmstead v. U.S. [1928]--upholding the wiretapping of private phone conversations without a warrant.)
  • Right to counsel for the poor--contrary to original intent and to settled principles. In its 1962 decision in Gideon v. Wainwright, the Court rejected the restricted original understanding of the 14th Amendment and held that the Due Process Clause guaranteed more than the right of an accused to hire a lawyer. It also included--to insure basic fairness in criminal prosecutions--the right of to have a lawyer appointed for those who could not afford one. That decision also rejected the well-settled principles at the time that 1) the 14th Amendment had made only a few rights of the accused in the Bill of Rights applicable to the states, and 2) that the appointment of counsel for the poor was not required, except in capital cases and other special circumstances. (E.g., Betts v. Brady [1942]--no right to the appointment of counsel in a robbery prosecution.)
  • Right to a trial by jury--contrary to original intent and to settled principles at the time. In its 1968 decision in Duncan v. Louisiana, the Court enlarged the meaning of the 14th Amendment as originally understood and held that the Due Process Clause entitled the criminally accused to be tried by a jury for all but minor charges. The Court also persisted in rejecting the formerly well-settled principle that the 14th Amendment had made only a few rights of the accused in the Bill of Rights applicable to the states, and it rejected longstanding precedents that the right to a jury was not a fundamental of constitutional due process.
  • Etc., etc., etc.
Judge Kavanaugh ought to be questioned about these and similar cherished landmarks, where the Court refused to be restricted to the original intent of particular constitutional provisions and where it rejected settled principles.
Does he believe that these landmarks were wrongly decided? Correctly decided, even though the Court disregarded original intent and rejected settled principles? Or correct because, in some amorphous sense of original intent or settled principles, the Court's decision was somehow faithful to one or both? Or does he really not believe in a judicial philosophy of original intent and settled principles?

To be sure, as is typical for Supreme Court nominees, Kavanaugh will almost certainly decline to say whether those cases were wrongly decided or how he would have voted in those cases.
(Although nominees will usually say that Brown v. Bd. of Ed. was correctly decided and that the nominee would have voted that way--because to say otherwise at this point in time would be shameful. But at the same time, self-proclaimed originalists will rarely acknowledge that the Brown decision was entirely contrary to the original intent of the Equal Protection Clause.)
But there are surely ways of questioning Kavanaugh to elicit the same sorts of insights into his thinking. The former trial lawyers among the Senators should be able to do that. Perhaps one approach might be, "How would an originalist Justice have voted in those landmarks?" And "How would a Justice who believed in following settled principles have voted?" Or "How would a judicial philosophy of original intent be applied to those landmarks?" And "How would a judicial philosophy of following settled principles apply?"

Would Judge Kavanaugh be honest and acknowledge that those landmarks were possible only because the Court disregarded original intent and rejected settled principles?
Or would he dissemble and attempt to explain how those landmarks are actually true to original intent or settled principles? That, of course, would be extremely disingenuous--either because such an attempted explanation would be untrue and he undoubtedly understands that, or because the "original intent" and "settled principles" that he embraces are so devoid of any concrete meaning as to be utterly deceptive.
Or would Judge Kavanaugh surprise everyone and deny that he believes in originalism or in following settled principles?

In any event, Judge Kavanaugh must be pressed on these issues at the confirmation hearing. That doesn't mean that he will be. Either because the questioning will be uninformed or inept or timid or all of those. Or because any such substantive, probing questions will be blunted by his being unresponsive or by the protective wrangling and obsequiousness of his supporters.

Having faithfully watched many confirmation hearings, I don't expect too much in the way of revealing, forthright, enlightening exchanges between the senators and Judge Kavanaugh. It's more likely that we will hear supporters telling him how wonderful he is and lobbing softball questions to him; opposing senators being frustrated in trying to get direct and candid responses to their questions; and the nominee himself serving up some nice sounding pablum to appeal to his supporting senators and to their voters.

Yes, that's more likely. But let's hope for some surprising substance--every once in a while we get some. Perhaps Judge Kavanaugh will address the cherished landmarks discussed above and others, and acknowledge that they would have been decided differently if the Court had applied "original intent" and "settled principles." In that unlikely event, the Senate and the American people might understand just how drastic the consequences of his vision of judicial decision-making would be.
On the other hand, if Judge Kavanaugh does not respond honestly, then at least those who follow these nomination proceedings closely will know that he avoided giving truthful answers, and we will have learned something disquieting about his integrity.
There's also the possibility--the likelihood in my view--that any answers he gives would be unresponsive, or that he would simply refuse to answer for some ethically-sounding reason. In that case, we can be sure that he'd rather conceal his answers than to acknowledge them publicly.

Unfortunately, as polarized as the Senators and the country are, none of Judge Kavanaugh's answers or non-answers may make any difference. Virtually all the senators are likely to vote along party lines. Nevertheless, the tough questions about his vision of judicial decision-making should be asked. At the least, one way or the other, we would get some sense of the Justice we're getting.

Wednesday, July 11, 2018

Questions for Nominee Kavanaugh (Part 1)

The battle now begins.

As we all now know, federal appeals court Judge Brett Kavanaugh of the D.C. Circuit was nominated for the Supreme Court this week by President Trump. To Republicans, he is apparently the greatest thing since sliced bread. To Democrats, he is apparently the prince of darkness. Well, like most of us, he's somewhere in the middle.
(His official biography is linked below.)

He is ideologically conservative. Maybe very much so. Maybe extremely so. To liberals--or  progressives or whatever we call ourselves today--his views are diametrically opposite. Anathema.

And this is not about judicial activism versus restraint. (Do conservatives--whose Justices in the modern era have been even more active than the liberals ever were in overturning the choices of the other branches and the states--speak in those terms anymore? Except perhaps the uninformed when speaking to the uninformed.)

Nor is it really about any interpretive methodology--i.e., strict versus loose construction, literalism versus consequentialism, originalism versus a living Constitution, etc., etc. Nor, relatedly, about the proper role of the judiciary in applying law versus making it. No, it's about the substantive issues.

Come on. Let's put the cards on the table. The substantive issues are what these nominations and confirmations have been all about. The talk about the properly restrained judicial role versus activist judges, etc. etc.--and also about credentials, qualified or unqualified--is the thinnest veil of what is really driving the support or opposition to a nominee.

So, for example, today it is really about a woman's right to choose, about gay rights, about religious exemptions from anti-discrimination laws and religion in the public arena, about gun rights, about affirmative action, about campaign finance, about racial and partisan gerrymandering, about voting rights, about worker protections versus business freedom, about rights of the accused, about privacy protections in the digital age, etc., etc.

That's what it's really about. But, of course, we don't get candor about that from a Supreme Court nominee or from the nominee's supporters. And we almost certainly will not get candor from nominee Kavanuagh or his Republican supporters. (We wouldn't --and did not--get that from Democratic nominees or their Democratic supporters either.)

Instead, we are sure to get lots of the routine, blah blah pablum about faithfully applying the Constitution, about simply interpreting the Constitution and other laws according to what they say and mean rather than one's personal views, and about not making policy from the bench because that is the province of the other branches. But little if anything of real substance about the actual substantive issues of the day--which is what everyone really wants to know about.

But answering such questions is dangerous for a nominee. The revelations might prove extremely unpopular or open other delicate areas for questioning. So the responses will either be finessed or the nominee will simply refuse to give an answer based on some ethical pretext. (Judicial ethics only prohibits actually promising to rule a particular way or expressing firm views about a pending case. As conservative idol Justice Scalia explained, we would not want a judge who was actually devoid of views about the important issues of the day. Yes, I'm agreeing with Scalia on that one!)

So what to do when questioning a smart, politically experienced, well-schooled nominee like Judge Kavanaugh at the confirmation hearings? How to get some actual insight about the kind of Justice he would be? Yes, he can be questioned about his opinions as an appellate judge. But any that might seem wrongheaded or be unpopular could be explained away by Kavanaugh as simply following the Supreme Court's precedents which bind the lower courts, or as applying existing law without regard to his own personal views.

But then there are his personal views about the judicial role. Views that he has expressed about how courts and judges should interpret the law. Particularly the Constitution.

Kavanaugh is being lauded for being an "originalist" and "textualist" in the mold of the late Justice Scalia. That is, the Constitution should be interpreted according to the original or historic meaning of the text. Period. No "living Constitution" to adapt to the changing values of justice and equality of the day. Whether he is actually an "originalist" or or a "textualist" not is another story. So let him speak for himself:
The judge’s job is to interpret the law, not to make the law or make policy. So read the words of the statute as written. Read the text of the Constitution as written, mindful of history and tradition. Don’t make up new constitutional rights that are not in the text of the Constitution.
(George Mason University, Antonin Scalia Law School [2016])

Judge Kavanaugh said "It’s not complicated."

It sure isn't. It's simplistic, contrary to the Constitution itself and, if actually followed, would have profoundly drastic implications for the most basic liberties Americans today enjoy and take for granted.

And that is why neither conservative nor liberal Justices actually adhere to such originalism/textualism, except when it suits them. And more to the point here, at confirmation hearings, the self-proclaimed originalists and textualists--and other species of supposed judicial restraintists--will nevertheless embrace cherished landmark decisions that were utterly non-originalist, non-textualist, and very activist. E.g., Brown v. Bd. of Educ, outlawing racial segregation--which was certainly not what the 14th Amendment was intended to do, nor what its text requires.

Guaranteed, no Supreme Court nominee today will decry that activist, policy-making Brown landmark. And there are plenty of others. In fact, most landmarks are exactly that--activist and policy-making. They change what had been original or what the text itself means.

But before continuing with other landmarks, about which Kavanaugh ought to be asked to reconcile with his originalism/textualism (and they cannot honestly be so reconciled), let's turn to something even more basic. In fact, maybe the most basic. It has to do with the nonsensical complaint, repeated ad nauseam as though religious dogma, that a right should not have been recognized and enforced by the Court because it is not mentioned in the Constitution. Or as Judge Kavanaugh put it in the excerpt above: "Don’t make up new constitutional rights that are not in the text."

Yes, it sounds good. It sounds "uncomplicated," to quote Kavanaugh again. But it is the purest nonsense. And it's a danger to the American scheme of "ordered liberty"--to borrow from Benjamin Cardozo.
[He, of course, was one of the greatest jurists in our history, and he well-understood that such originalism and textualism and not-mentioned-in-the-text (as well as judges-should-not-make-law-or-policy) to be utterly contrary to what judges necessarily do. And to Cardozo, you can add Holmes and Friendly and Posner and countless others of our most venerated and candid jurists who understood and acknowledged the same.]

The Founders and the Framers of the Constitution themselves also understood this. Indeed, we nearly didn't have a Bill of Rights because they feared that "it's not in the text" or "it's not mentioned" would be argued in the future. They worried that by including any rights in the text of the Constitution, those that were not mentioned in the text would later be denied.

To allay such fears, a provision was included in the Bill of Rights to foreclose such a "it's-not-in-the-text" argument. That 9th Amendment make clear, in no uncertain terms, that the rights specified elsewhere in these first amendments was necessarily a very limited list, and that unmentioned rights--i.e., those not in the text!!!--were not to be denied.
(9th Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.")

This was James Madison's attempt to put a nail in the coffin of the "it's-not-in-the-text" argument. It was his way of saying to Americans at the time and in the future, "don't worry that a right doesn't happen to be mentioned."

That is not to say that every right that might be claimed is entitled to constitutional recognition and protection--i.e., that it is "implicit in the American scheme of ordered liberty." (To again quote Cardozo.) But the mere fact that such a right is not "enumerat[ed]" in the text is irrelevant.

Judge Kavanaugh ought to be questioned about the 9th Amendment. And he ought to be asked whether his "not in the text" argument is exactly what the Founders and Framers feared, and whether he knows that his argument nearly killed the idea of having a Bill of Rights.

Let's consider a few of those "constitutional rights that are not in the text" and which, supposedly, according to Judge Kavanaugh (and other advocates of originalism and textualism), the courts ought not to "make up." What about:

  • the right to get married--yes, even for heterosexuals. NOT in the text.
  • the right to have sexual relations with another consenting adult--yes, even if with a spouse. NOT in the text.
  • the right to have children--yes, even if for lawfully married couples. NOT in the text.
  • the right to raise one's children--yes, absent abuse or neglect. NOT in the text. 
  • the right to hug or kiss your spouse or parents or children or friend--NOT in the text.
  • the right even to have a friend--NOT in the text.
  • the right to associate in a group of friends or like-minded individuals or to play games. NOT in the text.
  • the right to choose whether or not to eat lunch or another meal, or when to eat dinner or any other meal. NOT in the text.
  • the right to go for a stroll in your neighborhood. NOT in the text.
  • the right to sing in the shower or listen to music or read poetry. NOT in the text.
  • "the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men" (Justice Louis Brandeis). NOT in the text.
[The entire oft-cited excerpt from Brandeis's renowned and later vindicated and adopted dissent in Olmstead v. United States (1928):
"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."] 


Need I go on? Most of the most basic rights and liberties in living in a free society are NOT in the text of the Constitution. That document is not, and was never intended to be, a catalog of such rights. And again, to make that point clear, the 9th Amendment was included among the original ten, in the hopes of warding off the "it's-not-in-the-text" argument. But that argument keeps rearing its ugly and ignorant head. One must wonder if Judge Kavanaugh, his ilk and his supporters actually believe it.
[For further discussion, see Supremely Awful Arguments: Constitutional Nonsense (Part 2).]

In fact, it's a sure bet they actually don't believe it and don't practice it unless it gets them where they want to go. (More about that in the next post.) But for now, the point is that Judge Kavanaugh's insistence, that judges ought not to "make up" rights that are "not in the text of the Constitution," is actually contrary to the Constitution itself, which explicitly warns against denying rights that are NOT in the text.

Judge Kavanaugh ought to be questioned about all of those "NOT in the text" rights, and others. He ought to be asked which ones the courts and judges--and especially the Supreme Court--should not be recognizing and protecting, simply because they are "not in the text" as he says. And does he really believe that the fundamental principles of liberty that underlie the body of the Constitution and the Bill of Rights do not protect such basic freedoms--just because they are "not in the text?"

In addition to being at odds with the Founders' and Framers' understanding that rights did not need to be enumerated in the Constitution, this not-in-the-text argument is in fact contrary and irreconcilable with most of the essential and cherished rights that courts and judges--including the Supreme Court--have recognized and protected in landmark decisions. They were recognized and protected only because the pseudo-constitutional nonsense of not-in-the-text was disregarded.

It is these rights, protected by courts and judges--and specifically in Supreme Court landmarks--that will be the focus of the next post on Judge Kavanaugh and his avowed originalism and textualism.


[For Judge Kavanaugh's official U.S. Court of Appeals biography: https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL+-+Judges+-+BMK]

Friday, July 6, 2018

Justice Kennedy's Retirement (Part 2)

In the previous post, we reviewed Anthony Kennedy's votes and authored opinions in a wide range cases that deeply divided the Court. These were cases where the Justices split 5-4 along partisan political lines, and where the change in a single vote in the majority would have reversed the Court's decision.

What might well be unexpected to some--because Kennedy has been accurately viewed as a--or the--"swing vote" on some significant, controversial issues--is that his overall record has actually been that of a politically conservative Republican. Whether stopping the vote count in Bush v. Gore or invalidating restrictions on corporate campaign spending in Citizens United, or on diverse issues such as Obamacare, the Trump travel ban, gun rights, employer rights, voting rights, and search & seizure and privacy, Kennedy routinely joined with the other Republican Justices on the politically conservative Republican side of the issue.

But Kennedy has largely been known--beloved and praised, or reviled and ridiculed--for the exceptions in his record. His "swing vote" legacy is built upon a few areas of the law. On some highly charged social and cultural issues, he broke from the Court's conservative Republican majority and joined with the liberal Justices. Indeed, with Kennedy gone and a Trump nominee forthcoming, these are the issues about which Democrats, liberals, and, on some, libertarians are most concerned.

Let's consider those:
Gay Rights
Kennedy's name, more than any other, will be associated with the Supreme Court's landmarks invalidating sexual-orientation discrimination and mandating equal treatment for gays, lesbians, and same-sex couples. The culmination of that line of cases, no doubt, was the 5-4 decision in Obergefell v. Hodges (2015). There, Kennedy joined the Court's four liberals and authored the majority opinion to invalidate laws that restricted marriage to heterosexuals and, concurrently, to recognize the right to marry for same-sex couples.
He similarly authored the majority opinion for the Court's 5-4 decision, two years earlier, in U.S. v. Windsor (2013), invalidating provisions of the so-called "Defense of Marriage Act (DOMA) that denied federal marital benefits to legally married same-sex couples.
Before those cases, he authored the majority opinions in Lawrence v. Texas (2003), invalidating laws that criminalized same-sex intimacy ["Homosexual Sodomy" in the late Justice Scalia's ad nauseam refrain.], and in Romer v. Evans (1996), invalidating a state law that specifically prohibited legal protection against sexual-orientation discrimination.
[In these cases, Kennedy confirmed the worst suspicions of the most conservative members of the Reagan administration who opposed the Kennedy nomination because he was a "gay lover"--the cruder term was used in private conversation with me.]

On the other hand, Kennedy did join the 5-4 decision, in Boy Scouts of America v. Dale (2000), allowing the Boy Scouts to exclude gays from leadership positions, on the basis of freedom of association, despite a state law prohibiting sexual-orientation discrimination.

Affirmative Action
Kennedy authored the 4-3 majority opinion [Only 7 Justices participated: Scalia had died and Kagan recused herself] in Fisher v. University of Texas (2016), approving and, thereby, saving the use of race as one of many factors in a university admission process, as a narrowly tailored means to achieve the compelling interest in student diversity.

On the other hand, thirteen years earlier, in Grutter v. Bollinger (2003), where a 5-4 majority had upheld the use of racial preferences in university admissions, recognizing the value of racial diversity in education, Kennedy dissented; he argued that the use of race should be subject to much closer judicial scrutiny and more limited than what the majority had allowed.
And a mere two years before Fisher, in Schuette  v. Coalition to Defend Affirmative Action (2014), Kennedy wrote the leading plurality opinion for himself, Roberts and Alito. [Also part of the Court's 6-2 majority was Scalia, who voted with the majority but wrote his own opinion joined by Thomas; and Breyer who authored his own sole opinion. Sotomayor dissented in an opinion joined by Ginsburg; Kagan did not participate.] Kennedy approved a state law (adopted in the aftermath of that Grutter decision) that prohibited the consideration of race (or sex) in university admissions, despite the undeniably racially-charged campaign to promote the passage of the law and despite the fact that the supposedly merit-motivated law left alone countless other factors used in the admissions process that have nothing to do with academic merit--e.g., athletics, legacy, family wealth and contributions, geography, etc., etc.
[In my view, this was a shamefully hateful law that obviously had nothing to do with academic merit--since countless non-merit factors were left untouched--and much about racial animus. IAE, the point here is that Kennedy approved it.]

Right to Choose/Abortion Rights
In the landmark 5-4 decision in Planned Parenthood v. Casey (1992), Kennedy joined Justice O'Connor's opinion to reaffirm Roe v. Wade and to establish the proposition that an "undue burden" on a woman's right to seek an abortion, prior to the viability of the fetus, was unconstitutional.
And more recently, in Whole Woman’s Health v. Hellerstedt (2016), Kennedy joined the liberals in the 5-3 majority [Scalia had died earlier in the term], invalidating Texas restrictions on abortion service providers because they imposed substantial burdens on the right to choose, without any actual health benefits.

On the other hand, in the most recent right to choose case, Nat'l Institute of Family and Life Advocates v. Becerra (2018), Kennedy joined the 5-4 majority opinion, authored by Justice Thomas, invalidating California's requirement that clinics providing pregnancy services advise patients about legal abortion options, deeming that to be a violation of free speech.

Capital Punishment
Kennedy joined the Court's liberals in several deeply divided decisions that limited the application of the death penalty. In Atkins v. Virginia (2002), he joined the 6-3 majority opinion of Justice Stevens, holding that the execution of persons with significantly diminished mental capacities violates the prohibition against cruel and unusual punishment.
Three years later, in Roper v. Simons (2005), he wrote the 5-4 majority opinion, holding that the execution of persons who were minors when they committed their crimes also violates the prohibition against cruel and unusual punishment.
And three years after that, in Kennedy v. Louisiana (2008), he authored another 5-4 majority opinion, this time holding the same for the non-homicidal rape of a child.

On the other hand, in that same year, in the badly splintered decision in Baze v. Rees (2008)--one plurality opinion, 4 concurring opinions, and a dissent--Kennedy joined Chief Justice Roberts' 3-Justice plurality opinion that upheld Kentucky's method of lethal injection, despite the occasionally improper administration which would result in an excruciatingly painful death. According to the Kennedy-joined plurality, the cruel and unusual punishment prohibition would be violated only where there was an intolerable risk that the infliction of pain was wanton and unnecessary.

To be sure, there are other areas of the law in which Kennedy's participation was welcomed by ideological liberals--sometimes and sometimes not. The point is that as a "swing vote" that provided liberals with a last hope on a decidedly conservative Court, Kennedy's record was, at least in that regard, a very checkered one.

As we saw in the previous post, Kennedy's record on many issues was indisputably--and very--politically conservative. And in this post, we saw that even in those areas where Kennedy "swung" to the liberal side of the issues, he was not necessarily a totally reliable vote.

The purpose in these two posts has only been to be clear-eyed about Justice Kennedy's record and about what will really be missing from the Court in his absence. It was not to criticize Kennedy. Indeed, as I have repeated numerous times, in my view Kennedy has been admirable. He has been the least politically, lopsidedly-partisan and ideological Justice on this Court.

In short, more than the other Justices, Kennedy seems to have behaved like a judge. The "swing vote" label, which he apparently did not like, reflected that he was not necessarily tied to one ideological, partisan side in the cases. He typically appeared to be open to vote with the other side of the Court's political aisle.

He will be missed by many Court watchers. Include me among them.

Monday, July 2, 2018

Justice Kennedy's Retirement (Part 1)

(The travel ban decision or Kennedy's retirement? A wonderful student I bumped into yesterday suggested addressing the retirement first. So here goes.)
This post was updated  the following day to correct the omission of Kennedy's dissenting vote in the Obamacare case.

Anthony Kennedy, who announced last Wednesday that he will retire from the Supreme Court, was President Reagan's 3rd choice to fill the vacancy created when Lewis Powell took his leave in 1987. Reagan was mortified and angered when his first two nominations, Robert Bork and Douglas Ginsburg, were unsuccessful. Only then did he settle on Kennedy.

Staunch conservatives in Reagan's administration, who had urged him to nominate Bork and Douglas, were adamantly opposed to the seemingly more moderate Kennedy. Among other specific reasons--as shared to me in very crude terms--was that Kennedy would support gay rights.

And indeed he did. Yes, he not only voted repeatedly against sexual-orientation discrimination and in favor of advancing equal treatment for gays and lesbians and same-sex couples, but he authored the landmark opinions in most of those cases, and he did so in soaring, heartfelt language.

Kennedy is most often thought of in terms of the positions he took in these and other culturally-charged cases. And he was warmly embraced by liberals for his willingness to break from the conservative Republican mold in these cases. But for the same reason, he was scorned and even despised by many on the right. Not only socially conservative politicians and commentators and members of the public, but also some of his colleagues on the Court would denounce his jurisprudence, ridicule his opinions, and cast aspersions on the integrity of his judicial analysis. The late Justice Antonin Scalia, for example, often fumed at Kennedy's opinions and left little doubt that he did not hold Kennedy or his judicial competence in particularly high esteem.

That, in turn, made Kennedy even more of a hero to political liberals.
(Disclosure: I admired Justice Kennedy, both for his positions on gay rights and other social issues, and for his behaving like a judge--i.e., not always towing the partisan political line like most of his colleagues do on the Court, both Republicans and Democrats.)

But, we need to put that in context. Justice Kennedy was no liberal. That may be good, bad, indifferent, or something else. But in assessing Kennedy's record and, thus, what the Court is losing by his retirement, let's get real.

Kennedy was a conservative. Again, good, bad, indifferent, or something else, he was a conservative who voted on most issues like a politically conservative Republican. Not always. And not on some extremely important and controversial social issues. But yes, most of the time.

Let's consider Kennedy's record on some important issues:
Presidential Election
Kennedy voted in the 5-4 majority, in Bush v. Gore (2000), to halt the counting of votes and insure George W. Bush's election.
Obamacare
When the 5-4 majority, led by Chief Justice Roberts in National Federation v. Sebelius (2012), saved the Affordable Care Act by upholding the individual mandate, Kennedy voted with Scalia, Thomas and Alito in a joint dissent.
Trump Travel Ban
Most recently, he voted in the 5-4 majority, in Trump v. Hawaii (2018), to uphold President Trump's 3rd attempt to ban travel into the United States from several designated countries, most of them majority Muslim.
Campaign Finance
Kennedy is the one who authored the majority opinion, for the 5-4 decision in Citizens United v. FEC (2010), that invalidated the limits on corporate expenditures on political communications.
He then voted in the 5-4 majority, in McCutcheon v. FEC (2014), to invalidate the limits on the aggregate amounts that can be contributed to political candidates and parties.
Gun Rights
He voted in the 5-4 majority, in D.C. v. Heller (2008), to hold that the 2nd Amendment guarantees an individual right to bear arms separate from a state militia.
He then voted in the 5-4 majority, in McDonald v. Chicago (2010), to hold that the Heller individual right to bear arms is fundamental and, thus, applies to the states as well as the federal government.
Voting Rights
A few years ago, he voted in the 5-4 majority, in Shelby County v. Holder (2013), to invalidate those sections of the Voting Rights Act of 1965 that required jurisdictions with a history of voting discrimination to obtain a pre-clearance from the Justice Department when changing their voting laws.
Just recently, Kennedy authored the 5-4 majority opinion, in Husted v. Philip Randolph Institute (2018), approving Ohio's program to actively cancel the registration of voters who have not recently participated in some election activity.
Employer-Employee Relationship
This past term, he voted in the 5-4 majority, in Epic Systems v. Lewis (2018), to approve employer conditions that compel workers to submit their grievances individually to arbitration.
Most recently, he voted in the 5-4 majority, in Janus v. AFSCME (2018), to invalidate state laws that required nonmembers of a public sector union to pay "agency fees" or "fair-share" dues to help cover the union's cost of collective bargaining and other representation on the nonmembers' behalf.
Search & Seizure & Privacy
A few years ago, Kennedy authored the majority opinion, for the 5-4 decision in Florence v. County of Burlington (2012), that approved strip searching a driver, who had been arrested for a minor traffic offense, when that minor offender was placed in a jail cell during "processing--supposedly  to insure safety and discipline, even though there was no suspicion of drugs, weapons, or other contraband. Actually, 2 separate strip searches of that "offender" at 2 different jail cells were approved. Oh, the fact that the "offender" was totally innocent was apparently irrelevant.
That decision had been foreshadowed several years earlier, in Atwater v. Logo Vista (2001), in which Kennedy voted in the 5-4 majority to uphold the arrest, the handcuffing, the frisking, the searching, and the jailing-during-"processing" of a woman for a seat belt violation--i.e., her children had undone their seat belts while she was driving. Again, there was no suspicion of drugs, weapons or other contraband.
[These, in my view, are among the very worst decisions of the modern Court. And Kennedy was instrumental in creating a majority in both cases.]
Then there's the new 5-4 decision, in Carpenter v. U.S. (2018), in which Chief Justice Roberts authored the majority opinion holding that the government should have obtained a warrant before tracking a cellphone user's movements and whereabouts, over a 4 month period, by using his cellphone company's location data. Kennedy dissented, arguing that no warrant should be required.

Ok, that is not the record of a liberal Justice. Or even a centrist. Every one of those votes and opinions are what we would expect of a politically conservative Republican. And that is mostly the way Justice Kennedy behaved throughout his tenure on the Court.

That being said...Kennedy is best known--whether admired by liberals or reviled by conservatives--for his positions and even leadership on certain other issues. Social, cultural issues that, despite landmarks that might otherwise have settled them, are still front and center in our national political divide.

We'll take a look at that more liberal aspect of Kennedy's record, as well as some prospects for the Court with the forthcoming Trump-filled Kennedy replacement in the next post.