Rosen Colored Glasses...

What color is the sky in your world? This is a question increasingly worth asking of Jeffrey Rosen, whose work I've admired over the years in the New Republic, but whose latest efforts show less and less of the independent thinker and more and more of the conventional media liberal. [UPDATE: Will Baude, over at Crescat, notes that Rosen has taken an unconventional view on Roe over the years. It is true that at TNR he has suggested that if Roe were overturned, comity might return to the judiciary; it is also true that he has criticized Roe on the merits. This is the independence I had in mind, and what I find lacking in pieces like the one I discuss here.] Randy Barnett and the Volokh gang have done a nice job of debunking his recent effort (a longer version of an earlier argument he had ventured in TNR) to keep the dubious "Constitution in Exile" meme alive in the NYTimes Magazine.

This week, in the New Republic (sorry, I think you need a subscription to access the story), Rosen offers further glimpses of his worldview, in a way that is illuminating. The piece fits comfortably into the general "sky is falling" narrative that has possessed Upper West Side folks, the Times Op Ed Page, Andrew Sullivan, and diverse others since the last election. Here the subtitle is "GOP v. Judiciary." How original. It's sort of sad that even with the chance to reflect on his wisdom upon his passing, so few liberals realize that Lloyd Cutler was right about the damage that Democrats would do to the judicial nomination process (and arguably the judiciary itself) when they shamefully pretended that Robert Bork was against civil rights, dishwashers, breathing, and other assorted goods. How far they have come now to assert that Janice Rogers Brown does not appreciate the plight of minorities--perhaps some time with White Senate Millionaire Harry Reid would help her to glean those insights she missed in her youth.

But back to Rosen. Let's just sample some of his argument, the heart of which appears to be that the GOP invented the filibuster and destroyed our Constitutional order:

But far more significant than these political flip-flops is the fact that the House and Senate are no longer reliable representatives of most Americans' constitutional views. This is a dramatic and important shift. For most of U.S. history, all of the great constitutional issues--from the meaning of free speech to the meaning of equality--were debated in the House and Senate, which reflected the views of democratic majorities more precisely than the president or the courts. But, as political scientists Jacob Hacker and Paul Pierson argue in their forthcoming book, Off Center: George W. Bush, Tax Cuts, and the Erosion of Democracy, recent changes have made Congress an unreliable representative of majority will. Now that incumbents, thanks to partisan gerrymandering, are virtually assured reelection, politicians have a strong incentive to pander to their most reliable supporters--including partisan activists and high-stakes donors--in order to avoid the primary challenges that now decide elections. This means that representatives and senators can increasingly ignore the preferences of the moderate majority without suffering electoral consequences.

Gosh, when I learned about gerrymandering in 8th grade history way back in the 80s, when Democrats ran the Congress, my teacher was so prescient! How could he know that some day way in the future, Republicans would invent a way to keep incumbents in office...but, wait, I know Gerrymandering has a more venerable history than that...Surely Rosen can't expect anyone to take this seriously.

But of course it gets worse. We learn early in the article that "Polls show that more than two-thirds of Americans oppose eliminating the filibuster." (I presume he's quoting the absurd WaPo poll which asked people whether they favored "changing the rules so Republicans can more easily confirm Pres. Bush's nominees"--no leading question there.) We also learn that 2/3 of people polled didn't like the Schiavo intervention. But then we also learn: "if Congress no longer accurately represents the constitutional views of the majority, the Court will have alarmingly little evidence of what those views are, aside from fickle public opinion polls." The incoherence of this piece is somewhat dizzying. Of course, even though courts are not good at determining public opinion, courts turn out to be good at determining public opinion:

Fortunately, the canniness of the courts in following public opinion suggests that Republican attacks on judicial independence are unlikely to succeed...history suggests that the Court tended to retreat in the face of congressional opposition only when it was genuinely out of step with public opinion. That is not the case today. If the historical pattern holds, the courts are unlikely to wilt before congressional proposals to strip them of jurisdiction over controversial cases...As long as judges are confident that a majority of the country is behind them, they will remain steadfast in the face of congressional bullying.

Let's clear some of its errors away: Gerrymandering, while a problem and something I oppose, is centuries old. There is little reason to believe that it is worse now than during the 40-odd years of uninterrupted Democrat rule in the House; but infinite rule by Democrats wouldn't seem odd to some. Further, while Clinton nominees Steve Breyer and Ruth Bader Ginsburg sailed through the GOP-controlled Senate, Democrats now claim that a black woman from the South does not understand the plight of minorities. Does anyone think they would vote unanimously for Scalia today, though they did when he took the court? Scalia has not changed, the Democrat party has changed, in that it has adopted an utterly politicized view of the judiciary. Are Chuck Schumer and Ted Kennedy really more representative of "mainstream views" than President Bush? Care to run that in an election? (Contrast Schumer's approach to selecting judges with Lloyd Cutler's here.)

But worse than the sloppy history and incoherent political analysis is the similarly indefensible presumption that most of the country agrees with Jeff Rosen and Sandra Day O'Connor on the issues of the day:

Unlike the Republican base, however, a majority of the American people agree with the Supreme Court on most important issues. In the 1980s and 1990s, as conservatives passed tax cuts and scaled back the size of government, the Court modestly followed their lead, striking down laws on the margins of the post-New Deal regulatory state, such as the Gun-Free School Zones Act of 1990. And, as the public sided with liberals in the culture wars--endorsing gay rights, affirmative action, and access to early-term abortions--so did the Court.

Presumably fickle polling establishes the central basis of Rosen's claims. Unlike the fickle poll we had last November, where one candidate, campaigning on his record of judicial appointments and his ongoing promise to appoint more Scalias and Thomases to the Supremes, won a clear majority. Oh, and nevermind that the court has done much more than endorse "early-term abortions," that there is scant evidence that the public has robustly endorsed gay rights (let alone the logic of Lawrence, which imagines that founders embraced them, too), and mixed evidence of public support for affirmative action (even if you believe in polls, as Rosen does not).

So, to sum up, in Rosen's world, the following things are all true, all at once: The Supreme Court should not try to follow public opinion, because it is not equipped to; historically, the Supreme Court has done a nice job of following public opinion; Gerrymandering is a new phenomenon that newly threatens the country; the court was following public opinion in Roe and its progeny, not leading; and Janice Rogers Brown is a "radical." What color is that sky again?

Continue Reading "Rosen Colored Glasses..." . . .

Nuclear Politics

The great irony of the discussion over the constitutionality of the Senate procedures for closing debate and for amending rules has been the liberals' insistence that a practice must be constitutional since it is traditional. This will surely ease their objections to future conservative judicial nominees, whose "extreme" behavior is usually showcased by their fidelity to traditions of legality and illegality.

I think there are good arguments to be made for why a majority vote of the Senate should not be the process by which we find a rule (or procedure for setting rules) constitutional or unconstitutional. Personally, I think the weight of the reasoning cuts the other way, since there has to be some method to judge the constitutionality of Senate procedures. The Courts have said they will not get involved in any but grotesque procedural situations (See U.S. v. Nixon), but they have also not precluded others from making constitutional decisions. In fact, the logic of Marbury, by which the Court finds its need to assess constitutionality as incidental to live cases, would support (I believe) a role for the Senate itself in judging the constitutionality of its own procedures. Roberts Rules of Order are not the Supreme Law of the Land; only the Constitution demands such perfect adherence.

But beyond that difficult argument, the most fascinating liberal claim has been that somehow the Republicans were out of line for trying to sabotage an institution which by different accounts has existed since Wilson administration, the Civil War, the Founding of the Republic, and the Seven Days of Creation (to be referenced for hyperbole's sake on the condition that they are never mentioned in a classroom). How Delightful! Precilla Owen is opposed because she is so extreme that she thinks the constitutional tradition of not recognizing unlimited personal rights under the Fourteenth Amendment has some salience. But the same attacked-reasoning used by conservatives from Justice Scalia to Embattled Federalist Law Students to interpret the constitution is inscribed on the Filibuster Golem to preserve its life. What a wonderful trick!

The battle between Justice Scalia and Justice Kennedy in Lawrence v. Texas is a rematch of the debate in Michael H. v. Gerald D., which is itself just another chapter in the long line of cases dating back to the Slaughterhouse Cases. If written constitutions are to retain the power we want them to retain, they must be static instruments to bind us from moving too far with majoritarian processes which can be overly susceptible to dynamic and transient impulses. To know the limit of this bind, then, we turn to tradition, since the bind itself is static and not dynamic (that being its only advantage over the otherwise highly legitimate output of democratic majoritarian politics). To understand the limits on the powers of our elected officials, then, we turn in part to history and tradition to see what has been history's understanding of the limits to our legislative powers.

The liberals misunderstand this principle on two fronts now. First, they seek to apply it to Senate rules, whereas it only makes sense in the context of written constitutions. We may have many tax traditions also, but that doesn't mean that attempts to change our tax brackets should be treated with any less deference than the initial creation of tax rates. More critically, though, their conception of rights, and liberties, and freedoms is too dynamic. They see the Constitution as the source of power for mini-legislatures, staffed only with the elite. Its traditions are irrelevant, since it is merely a medium for power for their designated leadership. (This is the Mike "Czar of the Telestrator" Fratello School of Constitutional Jurisprudence. If you have a bad or outmatched team, you try and shorten the game, expecting a greater likelihood of victory in a 30 possession basketball game than in one with 75 possessions. Thus, the liberals---having been convinced that they cannot win in most states or most Congressional districts or most presidential elections---seek to shorten the game by deciding critical matters of society, culture, and law in a nine-person forum). Therefore, they not only don't value traditional interpretations, they need to affirmatively reject them so as to capture power.

But, at least their endorsement of tradition in the battle to preserve a Senate Procedural maneuver must clear the way for future Supreme Court nominees who similarly value looking to our legal traditions to guide our legal present. It must, right?

Continue Reading "Nuclear Politics" . . .

Cert for abortion case: Why this one?

A few thoughts about the Ayotte case.

First, I am happy to see the Court granting Cert in an abortion case. The Court has avoided the issue for far too long, given the its divisiveness and also the lack of jurisprudential clarity stemming from Roe and Casey.

But why am I not happy? Because this case is too narrow for the Court to clarify its standard of review without being too activist. The case involves a state law requiring 48 hour parental notification before a woman under 18 can receive an abortion. The law does not have an exception for health emergencies - and the Appeals Court struck it down applying the undue burden standard. This case is very clear to me - any law that does not have an exception for health emergencies places an undue burden on women. Yes - women can still go before a judge to bypass the waiting period - but that could take too long, putting the health of the mother in jeopardy. But that's just my opinion. More importantly...

What this case is really about is whether a law which unduly burdens only a very small fraction of women (those under 18 who face medical emergencies during pregnancy) places an undue burden on a woman's ability to have an abortion. As such, the case invites the Court to determine if the "undue burden" test should be conceived of as a test to be applied to individual cases, or to women as a whole (in the latter case, a situation which falls only on a small portion of women would not constitute an undue burden generally). This is important - no doubt - but I don't see how this case invites resolution of the far more important question - should the undue burden test remain at all, i.e. should a woman's right to an abortion remain constitutionally protected?

And so - I'm happy to see the Court venturing back into this issue - but I am uncertain that this particular case was the right one for the Court to select to illuminate the confused jurisprudence on the subject. If the Court does use this case to revisit abortion laws generally - which I suspect it will - I question how it will manage to do so without overstepping its bounds.

Continue Reading "Cert for abortion case: Why this one?" . . .

Video Killed the LiveBlogging Star

First it was the Waldroon-Yoo debate's webcast that made my transcript superfluous. Now Harvard's posted videos of this year's student symposium.

Continue Reading "Video Killed the LiveBlogging Star" . . .

Finals

. . . have slowed the posting, and will continue to for at least another week or so. Check back.

Continue Reading "Finals" . . .

The Real Problem With Medellin

I know I've said this before. But I was wrong. The real problem with Medellin is that the "exceptionalism" being argued for by the petitioners is different from traditional exceptionalism in the sense the Court has found it in cases like Curtiss-Wright and Missouri v. Holland.

"Foreign Affairs Exceptionalism" is a description of the structural transfer of power from the states and Congress to the federal government and the Executive in foreign affairs. The Court grants deference to the Executive in its interpretation of treaties and in its interpretation of some areas of the Constitution; states rights are not protected as carefully as they are domestically.

This exceptionalism can be said to allow the federal government, and even the President to delegate authority internationally. These treaty interpretation regimes have been around since the 1794 Jay Treaty. If the importance of the non-delegation doctrine is exaggerated domestically (Adrian Vermeule & Eric Posner, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721 (2002)), there is a strong argument that any international constraint on the federal government's power to delegate authority to more easily enter international agreements is also exaggerated.

The problem is that this is not the argument being made by petitioners in Medellin. Their argument is not only that Congress can delegate this power, but that they did delegate it. This, however, does not work. At least not without overruling Marbury v. Madison.

The Court, per Marbury, must pass some form of judgment on the ICJ's interpretation of the treaty. They may, as they did in Chevron, not pass independent judgment, but only police the boundaries of the delegation to ensure that the tribunal is acting within the scope of the delegation. This means that a reasonable interpretation fo the treaty by the ICJ would "bind" the Supreme Court. They would have to completely defer to the interpretation within that scope.

But this, I think, is the best petitioners can do. And since the Vienna Convention not only doesn't include any preemptive power over adequate state grounds in the delegation, but expressly states that adjudication of the convention's rights are to follow the rules of the forum states' courts, the decision by the ICJ to preempt an adequate state procedural default rule is outside the scope of the delegation, and therefore unreasonable.

Finding otherwise would be a new kind of exceptionalism that not only transfers power within the federal government, but transfers power away from the federal government, to the ICJ. Furthermore, if the federal government were unable to, either by failing to include a power in the delegation, or even by expressly excluding it, constrain the scope of its international obligations, every delegation would be a blank check for the foreign tribunal, changeable only by exit from the regime. This is obviously bad--not only for those of us concerned primarily with the preserving the democratic structure of the Constitution, but for the international rule of law as well.

Continue Reading "The Real Problem With Medellin" . . .

After Midnight, I Turn into a Pump-- Er, Federalist

A weekend of studying constitutional law produced this De Novo post that kind-of sort-of almost-seems to say that... Bork was right about the inkblot?

Clearly I need to sleep. Though Bork himself has shifted position on privacy and the Ninth.

Few people now recall that once upon a time, back in the late 1960s, Robert H. Bork welcomed Griswold as an example of how the "idea of deriving new rights from old is valid and valuable. The construction of new rights can start from existing constitutional guarantees, particularly the first eight amendments, which may properly be taken as specific examples of the general set of natural rights contemplated" by the framers and particularly by the Ninth Amendment (Bork, Robert H. "The Supreme Court Needs a New Philosophy." Fortune 78 (December 1968): 170).

Continue Reading "After Midnight, I Turn into a Pump-- Er, Federalist" . . .