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Sunday, December 18, 2005

For the Love of O'Connor

One-upping the Catholic League, other religious conservatives are unsatisfied by Wal-Mart's firing a tactless employee and creating a Christmas section into which it has put Holiday Barbie and seasonal lawn ornaments.
About 50 protesters took part in Saturday's demonstration, organized by religious leaders. Dick Otterstad of the Church of the Divide donned a Santa Claus costume and greeted shoppers with the message: Don't forget about the meaning of Christmas.
"It is insulting that Wal-Mart has chosen to ignore the reason for the season," Otterstad said. "Taking the word 'Christmas' out of the holiday implies there's something sinful about it. ... This is a part of our culture."
Why would someone wear a Santa costume to talk about the religious meaning of Christmas? From what I understand, Santa's message is actually somewhat antithetical to that of Christianity, inasmuch as Claus rewards people for being good and gives them coal if they are bad (considering the price of heating fuel this winter, this may be more helpful to poor families than a bunch of toys would be), whereas Christianity emphasizes that virtuous behavior is insufficient and one must believe in Christ as savior. This confused symbolism seems of a piece with the report that some churches won't be holding Sunday morning services on Christmas, because their parishioners with children are unwilling to interrupt the kids' present-opening. Which I am all about. My mom claims that she didn't celebrate Christmas when she first came to the U.S., but that she would give us gifts instead on a Hindu holiday. Because we bawled about not getting Christmas gifts, Dec. 25 became incorporated into our family tradition.

With that in mind, the O'Connor test of government-sponsored religious displays -- that the religion be thoroughly diluted with secularism -- seems pretty well in step with how many Americans actually think about the public square, notwithstanding how beautifully some folks have gotten the First Amendment governed "public square" of the state muddled with the Almighty Dollar governed "public square" of Wal-Mart & Co. In light of how the centers of shared activities have changed, perhaps we should call it the public strip mall to distinguish it from the public square of courthouses and city halls, and have another term yet for the Marsh v. Alabama commercial centers that have transformed private property into public space.

Indeed, looking at O'Connor's record as a whole, she tends to write opinions that are politically sensible, to use the word "sensible" in two meanings: exhibiting good sense, and having the faculty of perception. O'Connor often is described as a pragmatist, but she also is sensitive to popular intuitions. Her balancing tests, mocked though they are by other legalists, fit well with the layperson's usual notion that there are competing interests, that we should compromise, that every situation is different, etc. These tests may not be easily summarized into a few words, but very little of the Court's jurisprudence seriously can be.* Many people have traced this tendency to her career, which includes participation in more elections than most contemporary justices, plus appointment to Arizona's top court by a governor on the other side of the aisle. And of course, the similarities between this biography and Harriet Miers's were part of what drove the fear that Miers also would end up becoming another moderate on the Court.

* Take, for example, the Make No Law bit of the First Amendment that Hugo Black attempted to take so strictly -- even he felt that some laws regarding speech didn't really impinge on anyone's right. I cannot think of any aspect of the Constitution that does not come with qualifications and explanations, and this probably is not due to being a law student. I doubt that a person utterly uninterested in the Constitution would think that the First Amendment properly is read to mean that Congress may make no law prohibiting the publication of undercover CIA agents' names, because this exception is just "common sense," though it is a prior restraint and not in the text.

Continue Reading "For the Love of O'Connor" . . .

Monday, December 12, 2005

Another Reason to Love the Federalist Society

I realize that my recent lauding of the Federalist Society is becoming absurd, but since I needed a break from studying for finals anyway, I thought I'd note what I think is a perfect example of the benefits of Federalist Society ideological diversity.

MCI v. AT&T is an interesting case in Administrative Law because of the way it seems to warp Chevron. Justice Scalia's majority opinion takes a word in the statute, "modify," and instead of determining at Step One that the term is sufficiently ambiguous such that the Court should adopt the agency's interpretation, he gets into a dictionary fight with Justice Stevens in dissent over the use of the term, and never gets to Step Two. It's interesting because if this is a term that has different definitions in different dictionaries, and warrants the debate that ensued between the majority and the dissent, it seems like it IS ambiguous, such that it should be resolved by the agency at Step Two.

In the casebook notes following the case there is, as usual, academic commentary on the issue of the case. There, we see conflicting commentary from three of my favorite (and all Federalist) academics--John Manning (Harvard), Tom Merrill (Columbia), and Orin Kerr (GW)--debating this textualist approach to Step One. John Manning defends the textualism. Tom Merrill questions its use in this instance, arguing that strong textualism at Step One would lead to the permanent subordination of Chevron. Orin Kerr uses an empirical study to show that textualism at Step One is not used the same way it is in regular statutory interpretation--since the dispute is judiciary/executive rather than judiciary/congress, courts are more likely to find ambiguity in regulatory statutes. They all, in various ways and levels of conviction, engage with a legal idea that continues to receive short shrift by the Left.

I am probably not a Textualist, and question the prudence of too much resolution through dictionaries at Step One, but the added time textualism has gotten through its injection into the debate has been of immense value in my understanding of the law. I am extremly grateful that I had Jeremy Waldron (who, though not a Federalist, in his own words "worships" Justice Scalia and his textualism) to teach me the virtues of textualism, and that the cursory treatment and conclusory repudiation I was exposed to in other classes was not the end. One need not buy these ideas wholesale to appreciate the value of their presence in the debate. The result of giving them time will likely be a moderate concensus that incorporates the values of the more extreme version, but tones it down for practical implementation.

For a related, and fantastic, article on the subject, see Jonathan T. Molot, The Rise and Fall of Textualism, 105 Colum. L. Rev., (forthcoming).

Continue Reading "Another Reason to Love the Federalist Society" . . .

Friday, December 09, 2005

The Conservative Farm System

Another article on the effectiveness of the Federalist Society this week in The Week. The article largely credits the timing of the formation of the Society--Reagan's coming into office and the contemporaneous liberal domination of the law schools--with its success, and cites "networking" as its mechanism for gaining influence. I don't doubt this to be descriptively true in terms of the influence of lawyers in the Society. But I take issue with the article's seeming characterization of the group's self-identification as a "debating society" as pretext.

It is obviously right that membership in the Federalist Society has become a sort of badge of loyalty that makes it a perfect conservative networking tool. And this, likely far more than the effect of the Society in adding to the debate in the law schools, is the reason it raises so many eyebrows in judicial confirmations.

But for the rising generation of lawyers, I think it would be wrong to say that the change the Federalist Society seeks to work in the law schools is but a pretext for its secret ambition to take over the judicial system. The far greater need, in my mind, is not a badge of honor for real conservatives, but a tolerance among our colleagues for our ideas and arguments. That, I think, is only gained in debate.

So it's a two-pronged mission, in a sense. Brute force of getting our guys life tenure is only half the battle. We must still convince people to respect our views. I hope that never gets totally sidelined.

Continue Reading "The Conservative Farm System" . . .

Thursday, December 01, 2005

Severability in Ayotte

Jack Balkin has repeatedly noted that what is perhaps the biggest issue at play in abortion litigation is the question of severability. From my reading of reports from yesterday, I think it's pretty clear that he's right. The Justices seem far more amenable to the idea of engaging in severing unconstitutional portions of abortion statutes rather than declaring them facially invalid as they previously have. Consider this report of how the Court reacted to the problem of the lack of a medical exception:
Roberts proposed to fix the flaw and thereby save the law. And in response, lawyers on both sides agreed with the idea of carving out an exception for "medical emergencies." By the end of the hourlong argument, most of the justices sounded as though they agreed as well.
This is an interesting discussion given the Court's refusal to simply "carve out" an exception in previous cases. In Casey, the Court held that an abortion regulation must be facially invalidated if it creates a substantial obstacle to access to abortions in a "large fraction" of cases. 505 U.S. at 895. Justice Thomas objected on these grounds at the end of his Stenberg v. Carhart dissent:
Even if I were willing to assume that the partial birth method of abortion is safer for some small set of women, such a conclusion would not require invalidating the Act, because this case comes to us on a facial challenge. The only question before us is whether respondent has shown that " 'no set of circumstances exists under which the Act would be valid.' " Courts may not invalidate on its face a state statute regulating abortion "based upon a worst-case analysis that may never occur."

Invalidation of the statute would be improper even assuming that Casey rejected this standard sub silentio (at least so far as abortion cases are concerned) in favor of a so-called " 'large fraction' " test. In Casey, the Court was presented with a facial challenge to, among other provisions, a spousal notice requirement. The question, according to the majority, was whether the spousal notice provision operated as a "substantial obstacle" to the women "whose conduct it affects," namely, "married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement." The Court determined that a "large fraction" of the women in this category were victims of psychological or physical abuse. For this subset of women, according to the Court, the provision would pose a substantial obstacle to the ability to obtain an abortion because their husbands could exercise an effective veto over their decision.

[noting the lack of analysis in the majority opinion and disagreeing as an empirical matter that the statute is an unconstitutional obstacle in a "large fraction" of instances]

* * *We were reassured repeatedly in Casey that not all regulations of abortion are unwarranted and that the States may express profound respect for fetal life. Under Casey, the regulation before us today should easily pass constitutional muster. But the Court's abortion jurisprudence is a particularly virulent strain of constitutional exegesis. And so today we are told that 30 States are prohibited from banning one rarely used form of abortion that they believe to border on infanticide. It is clear that the Constitution does not compel this result.
Salerno is even more restrictive and would require that a statute outside of the First Amendment (where overbreadth doctrine applies; but see Monaghan (arguing Overbreadth applies every time there is a heightened standard of review)) have no possible constitutional applications in order to be facially invalidated. Balkin explores the effect of such an extension of Salerno:
If the Court applied the Salerno rule to abortion cases, it would mean that plaintiffs could not directly challenge new abortion regulations as soon as they were passed. Instead, a series of plaintiffs would have to go to court and prove that the law was unconstitutional as applied to their individual circumstances. This process would be time consuming and expensive, and it would take years to produce a jurisprudence limiting the statute's unconstitutional reach. Thus, the effect of applying Salerno (as opposed to what the Court actually did in Casey) would be to allow states to pass significant restrictions on abortion and keep them in force for long periods of time until a series of time consuming and expensive cases gradually eliminated their unconstitutional features.
I have a more optimistic view of replacing the worthless "large fraction" test with a more Salerno-like rule because it would minimize the Court's role in the development of the law--carving out the exceptions it feels are "constitutionally" compelled, and allowing the statutes to remain in force, rather than invalidating the statute wholesale.

I don't know that Lyle Denniston is right that this would not be a "grand pronouncement" from the Court. There is certainly no indication that the Court wants to go any further than this, though I imagine the conservatives were on their best behavior knowing that the arguments would be distributed to the media and Alito's nomination is upcoming. But I think this applying Salerno, or even somewhat less would be a major win in placing these questions back with Congress and state legislatures.

Continue Reading "Severability in Ayotte" . . .