Cars, Cows and Federalism

In this post criticizing a New York Times editorial on how a Justice Roberts might roll back commerce clause- based federal regulations, T. More says,

Does anyone believe we need the Federal government's help to stop those darned states (especially the red ones) from approving of child labor? Let's grant that some states would not adopt the position of the EPA if somehow we were to return to a federal government of limited powers (by, say, adopting something like that wildly moderate Justice O'Connor's position in Raich); they might even differ from the approach of OSHA. But CHILD LABOR? Were these people never read the story of the boy who cried wolf?

T. More titles his post "Or, if he says he's against child labor, will you support him?"

However, a personal distaste for child labor hardly is the point; the Times is addressing whether Roberts's judicial philosophy would render the federal government unable to enact legislation to prohibit child labor. I have a personal distaste for hate speech, but my understanding of the 1st Amendment doesn't permit for its prohibition.

As for whether it's utterly absurd that the states could prefer a lower standard for child labor regulation than that promulgated by the feds, even the federal standards have been criticized for being out-of-date and failing to recognize differences between minors and adult males (for example, in permissible exposure to pesticides during agricultural labor). Some states under-enforce federal immigration law in order to have a sufficient supply of labor for the picking season, so I don't find it impossible that they'd lower standards on child labor as well.

I suspect what T. More really finds objectionable is the idea that we would return to Industrial Revolution-era conditions, which is indeed ridiculous, but also not the editorial was talking about explicitly (though the authors may have wished to raise fear of it by implication). In the absence of federal regulation, states have the room to experiment, and those experiments can be good or bad.

To assume that a given state wouldn't lower the working age to 13 (Kansas lets girls get married before that age, which horrifies Nebraska) seems to me to ignore the diversity of needs and attitudes in different localities. Most of the kids who took driver's ed with me already had plenty of driving experience on back roads and pastures because that was the norm in East Texas, and the guy who sat in front of me in sophomore English had lost part of one finger to a cow he'd been milking. In contrast, none of my college friends from Northern Virginia got in a driver's seat until they were 15, nor had any of them dealt in animal husbandry.

Considering that part of the rationale for federalism rests on precisely this variation among states, I don't think a federalist honestly can claim that all the states would hew to the federal regulation in its exact letter if the Supreme Court declared it to be invalid. Probably none of them would return to the pre-federal regulation state of affairs, but a large number of federal regulations, being cut to fit the majority of states -- or just the states with the most influential representatives and lobbyists -- are not necessarily ideal for each one of the fifty. If the states might differ from the EPA regarding the environment, or from OSHA in matters relating to adult labor, why must they necessarily adhere to federal standards in the single area of child labor?

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Maybe He Can Use the "No, I Was a Token Liberal" Defense

Judd at Think Progress breathlessly reports, "Federalist Society Transcript: John Roberts Was A Member."

The media seems to be having trouble figuring out whether John Roberts was a member of the Federalist Society. Maybe they should just read the transcripts from Federalist Society events. Here's a quote by Elliot Mincberg of PFAW at a Federalist Society event on 9/9/03:

Anybody who honestly believes that people like Miguel Estrada and John Roberts were selected solely because of merit without any view whatsoever about their points of view, their membership in the Federalist Society, other things, I have a bridge I would love to sell them.

No one else on the panel objected to Mincberg's description of Roberts, including Leonard Leo, the Federalist Society’s executive director.

So is being a Fed Soc member enough to hang one, or does one have to have those "points of view" and "other things" as well? I'm having troubling visions of an improbable future in which I am nominated for some high post, and being queried as to whether I am now or have ever been a member of the Federalist Society. Maybe some of the Hollywood Ten were just Communists for the good events and hot guys.

UPDATE: OK, now it's just getting silly --

Supreme Court nominee John G. Roberts Jr. has repeatedly said that he has no memory of belonging to the Federalist Society, but his name appears in the influential, conservative legal organization's 1997-1998 leadership directory.

Continue Reading "Maybe He Can Use the "No, I Was a Token Liberal" Defense" . . .

BUT OH, IT'S NOT ABOUT RELIGION!

That's what we will be told by Sen. Schumer, by the New York Times, and others who will pretend that they are studiously neutral, mainstream commentators on American law and politics. But read today's article on Supreme Court Nominee John Roberts's wife. Note that the article claims that Ms. Roberts's activities have drawn interest. Then ask yourself: from whom? Is a single named person in the article interested? Or is not the tone that there is a presumption against a pro-life advocate that must be defended against? The interest here is the interest of the New York Times, and it is one you will notice when you read it.

Then read the rest of the New York Times. Keep a count of how many stories that are not about religion (as this one, ostensibly, is not about religion) focus on the religious faith of the subjects of the story. Report back in the comments. Should be interesting. I have not the patience with the New York Times to complete this research task myself. But I did notice that, in an article that even Sen. Kennedy says (in the article itself) covers material that should be out of bounds, they do choose to emphasize that Mrs. Roberts is a Roman Catholic. So am I. So is Sen. Kennedy. Next?

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"Random" Searches in the New York City Subways

While I hate to distract from the confirmation hubhub, I thought I'd see what people think about the NYPD's new policy of searching subway riders absent individualized suspicion.

The NYPD has begun searching straphangers' bags without any specific basis for believing them to be terrorists. The policy combines random checks (e.g., every tenth rider) with checks of those who are actually suspicuous (e.g., a bag with protruding wires and an accompanying ticking noise).

Naturally, I'm against the policy. It smacks of selling our rights for the illusion of safety. [Insert your favorite Ben Frankin quotation here.] Of course the NYPD defends the policy on the usual grounds: "The public understands we live in changed times," said the Commissioner.

So the age-old question returns. How much liberty are we surrendering, and for what benefit? The liberty interest seems pretty big to me. For many New Yorkers, the subway is the only way to get to and from work. It's the only practical way to visit much of the city. Therefore, anyone who cannot afford regular taxi fare now implicitly has no right to be free of searches of his person and effects.

The benefit is close to zero. Yes, we may deter a would-be subway bomber. But he can always blow up a nearby Starbucks and kill just as many people. It's like "the Club," which does not deter car theft but merely moves it from Clubbed cars to others. (And a murderer can of course blow up the checkpoint itself, like people do in Iraq and Israel, thereby turning a safety device into a death trap.)

The NYCLU has said it will likely sue. I think it should win.

P.S. Another interesting case is the right to travel anonymously on airplanes. See more here about a case in the Northern District of California challenging FAA requirements that air travellers show ID.

Continue Reading ""Random" Searches in the New York City Subways" . . .

Breathtaking! (Or, if he says he's against child labor, will you support him?)

No, not the President's selection of DC Circuit Judge John Roberts as his choice to replace Justice O'Connor on the Supreme Court, though it is a thrilling selection. Rather, I find myself short of breath after reading this putatively restrained editorial in tomorrow's NY Times. The restraint here is that the Times does not take a position on Judge Roberts--yet. They want to wait until he fails to give sufficient evidence of being like Justice O'Connor. Or their fantasy of Justice O'Connor. But before we get to the legal absurdities of the piece, let's look at the extraordinarily overheated rhetoric. Here's a choice bit:

If extremists take control of the Supreme Court, we will end up with an America in which the federal government is powerless to protect against air pollution, unsafe working conditions and child labor.

Now, who was it that let the word out? Was it you Phocion, or you Helvidius, that gave away the secret notes from the Federalist Society meetings where we all dreamt of a future of employing kids to make socks even more cheaply than Chinese prison labor? It's really hard to imagine how even the editors at the New York Times thought that line was appropriate for a "real" newspaper, rather than, say, Mad Magazine. Does anyone believe we need the Federal government's help to stop those darned states (especially the red ones) from approving of child labor? Let's grant that some states would not adopt the position of the EPA if somehow we were to return to a federal government of limited powers (by, say, adopting something like that wildly moderate Justice O'Connor's position in Raich); they might even differ from the approach of OSHA. But CHILD LABOR? Were these people never read the story of the boy who cried wolf?

But wait, there's more! As in the very next two sentences:

There are reasons to be concerned about Judge Roberts on this score. He dissented in an Endangered Species Act case in a way that suggested he might hold an array of environmental laws, and other important federal protections, to be unconstitutional.

Truly unbelievable. Judge Roberts's dissent was from a denial for en banc rehearing of a case in which he was worried about whether a particular application of the Endangered Species Act was being upheld on grounds inconsistent with the Supreme Court's commerce clause jurisprudence. He in no way raises concerns about the act itself, and indeed suggests merely that better grounds for upholding its Constitutionality might be found if the whole Circuit were to rehear the case:

The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating "Commerce ... among the several States." U.S. Const. art. I, § 8, cl. 3. To be fair, the panel faithfully applied National Association of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997). En banc review is appropriate because the approach of the panel in this case and NAHB now conflicts with the opinion of a sister circuit - a fact confirmed by that circuit's quotation from the NAHB dissent. See GDF Realty, 326 F.3d at 636 (quoting NAHB, 130 F.3d at 1067 (Sentelle, J., dissenting)). Such review would also afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent. See Rancho Viejo, LLC v. Norton, 323 F.3d at 1067-68 n.2.

That the Times would so shamelessly distort such a brief dissent from a refusal to rehear en banc tells us all we need to know (not that we didn't already know it) about the sincerity of their "withholding judgment" at this early stage.

Something else to watch out for: the Times, following Sen. Schumer's lead, is calling for thorough questioning of the candidate; no doubt when he gives "evasive" answers both Schumer and the Times will object that the country deserves to have him promise to uphold Roe, and perhaps to confer with Justice O'Connor by phone before writing any future opinion, before he can be supported. But did they oppose Ruth Bader Ginsburg when she ruled out question after question at her hearings? Let us hope that cool heads and clear consciences will prevail over the sort of sleazy politics that is presaged by this editorial--shifting the goalposts on proper inquiry and absurdly claiming that a brief dissent in a denial of a petition for rehearing raises questions about child labor.

Continue Reading "Breathtaking! (Or, if he says he's against child labor, will you support him?)" . . .

Judicial Activism vs. Judicial Activity

Over at Balkinization, Jack Balkin has posted another analysis of activism that finds the term wanting. I think that this trades on a failure properly to consider the role of the judiciary in our system, as what should be the "least dangerous branch." The judiciary is not meant to have legislative or executive initiative in our government; rather, it is meant to police the boundaries of the enumerated powers of the other branches by faithfully interpreting the laws especially in light of the Constitution which sets numerous internal and external limitations on the powers of the government.

I posted this comment in reply to Balkin:

I don't think much turns on the words, so I can agree with your conclusion. But I have always thought that the thing an "activist" judge does is not "something rather than nothing" but deciding cases contrary to the law. To be sure, the most egregious cases come when rights get made up out of nowhere (or out of emanations and penumbras, if you prefer); but it would be just as much activist for a court to refuse to protect individual liberties that have been constitutionally (or legislatively) protected out of a judge's own disagreement with the received law.

It is that arrogating to oneself the power to legislate that constitutes activism. That is why the whole notion of a living constitution is an activist one: well, of course the framers didn't protect reproductive autonomy, but they announced principles that we in our wisdom (because history only moves progressively--we're the most enlightened people ever, ipso facto!) can say today require this or that new right (Roe, Lawrence, etc.).

Thus, the Kelo court's decision was activist, and knowingly so, in relying on "evolving" circumstances that make "public purpose" a better clause than "public use", the one that is actually there. This is a conscious, explicit, "living constitution" kind of activism, and it results in allowing a law to stand. In a government of enumerated and divided powers, it is crucial that judicial humility result in the policing of Congressional and Executive power according to the enacted wishes of the legitimate lawgiver, not the evolutionary editing of judges.

To my mind, Justice Thomas's apparently limitless deference to the executive in matters arising in war constitutes activism (compare his opinion with Justice Scalia's in Hamdi, for instance). Again, that's "passivity" on Thomas's part in that he defers to the executive, but it is an activist pursuit of a take on the war power of the executive warranted by neither the text nor the history of the constitution as he usually applies those terms. {End}

To this I would only add that Balkin, led more by results than by rigorous analysis of the principles, I am afraid, fails to see what Henry Monaghan demonstrated clearly about Bush v. Gore, namely that it does not represent a threat to federalism properly understood, even though it involved a relatively rare review by the U.S. Supreme Court of state court determinations of state law. I would further add that much of the "cleaving" that Justice Thomas would do to existing laws and regulations I would support, as it would undo the activist abetting of unconstitutional lawmaking that prior courts had undertaken. That would be a lot of judicial activity, but it would not be activist. Thus, while Balkin properly notes a number of forms of conservative activity (such as its takings clause jurisprudence), to note such is not always to identify activism properly understood. Are conservatives sometimes activist? Of course. But we should be able to distinguish judicial activism (acting legislatively, for the most part) from judicial activity (carrying out the proper judicial function, which will involve striking down invalid laws).

UPDATE: I append also this comment I posted to clarify my reply to Balkin's point about Bush v. Gore (and his idea that Kelo is a betrayal of federalism for the conservatives): The reason for my raising this is that, as in the analysis of activism, where it is a mistake to assume that judicial review simpliciter constitutes activism, so also when it comes to federalism we should not presume there is an absolute deference owed to states by federalists, lest they open themselves to charges of selective application of principle. Both the meaning and application of activism and federalism admit of and require more nuance than that.

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Against Some More Ridiculous Errors...

This fine Sunday morning I awoke in Washington, DC and after the celebration of the sacred mysteries (Catholic Mass for those not in the fold) I set about to watch our nation's most influential folks gab about the nomination process. In a spirit of charity and hope (influenced by the Mass) but also out of a desire to see the truth vindicted (id.), I offer the following reflections in no particular order:

(1) Sen. Schumer is playing with fire. He wants to say two things simultaneously: that ideology is grounds for opposition, presumably to the point of filibuster; and that President Clinton nominated Ginsburg and Breyer after consultation with Orin Hatch which is why they sailed through. But Orin Hatch did not hold the first of the two propositions, at least not robustly. The Republicans have had their share of bad behavior on judicial nominations over the years, but when it has come to the Supreme Court they have held their fire. Can anyone seriously claim that Ginsburg does not run afoul of what a "conservative" wants in a judge at least to the degree that Luttig would run afoul of liberal hopes? But, to that point, the Senate still respected that Presidential elections matter, and that, character and competence established, the President's Supreme Court nominees should be affirmed. If the standard is not that a John Roberts, an Edith Jones or even a Janice Rogers Brown cannot qualify, that will not bode well for the future.

(2) Did anyone in the media or elsewhere note that replacing Byron White with Ruth Ginsburg shifted the balance of the Court? Was this inappropriate then? Would it be inappropriate now, therefore, to put up somebody with a different philosophy than Justice O'Connor? This is among the sillier arguments employed by self-styled progressives to pretend that they did not lose the last election.

(3) Did Walter Dellinger, distinguished Professor of Law at Duke and Solicitor General under President Clinton, miss the first year course in Constitutional law? This morning, on the George Stephanopolous program, he opined that he could see no reason why a nominee should be permitted to avoid questions about pending issues before the court. How about several reasons, beginning with the Separation of Powers: how would it not undermine the independence of the judiciary to insist upon particular views about actual cases likely to arise before a person could join the court? Let's also try Judicial ethics: Judges (like Justice Scalia in the Pledge case) must recuse themselves from hearing cases they are thought to have prejudged; the judicial code of ethics has for years required that judges refrain from commenting on matters likely to come before their courts. And all nominees of both parties have under that principle refused to answer such questions. So for Constitutional and ethical reasons, Mr. Dellinger, it would be wise not to abandon this practice.

(4) Sen. Specter did not learn much from his behavior in the episode that made "Bork" a transitive verb. This morning on the same This Week program, he suggested that originalists like Bork could be outed in hearings for their extreme views. As an example, he argued that under the original meaning of the Constitution you would have to segregate the Senate, whites on one side, minorities on the other. Now, that argument is so completely ridiculous I don't even think Ralph Neas would make it--but it comes instead from the Republican Chairman of the Senate Judiciary Committee. It's rather depressing to imagine that such things can be said. It truly is not possible that Specter believes what he said. Why did he say it? He's very hurt and angry that conservatives have not forgiven him for what he did to Bork. This comment by him suggests that conservatives are apparently correct not to have forgiven or forgotten, since he has not repented from the shameful canard that originalists are somehow opposed to civil rights, in favor of racism, and, when they get the chance, like to kick cats.

(5) There is very little hope to imagine that the media will cover this as anything other than just another political appointment, and will discuss only the results that nominees have voted for or would vote for. This is how the Senators will discuss it, this is how the activist groups will pitch it, and there is little hope that the journalists will not follow their lead.

(6) As depressing as all of the foregoing can be, tomorrow is July 4, and as such an occasion to reflect that we are passionate about this because we love the country, the Constitution, the freedoms we enjoy, and system that brought most of ancestors here yearning to breathe free. Happy Independence Day!

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More than one case at a time now?

I come neither to praise nor to bury Sandra Day O'Connor. She obviously had a remarkable and influential career in the law, including a highly influential period of time on the highest court in the land.

I'm not an expert on her jurisprudence, but I will say that her critics from the right were probably too harsh on her, and her admirers among self-styled "progressives" were probably too kind to her. In the area of state sovereign immunity, federalism, and even, with Kelo as a late datum, property, O'Connor should have been largely pleasing to conservatives. Midkiff, however much one might disagree with her distinguishing of it in Kelo, was obviously for her a kind of one-off predicated upon the unique factor of the extraordinary maldistribution of land in Hawaii.

At the same time, her decision in Casey was spectacularly disappointing, and in Stenberg so much the more so. For those of us, who, like me, think foetuses are human beings (gosh, I was once a foetus, and never a salamander, and always a human--however salamanderlike I may have looked at the formation of the primitive streak) this was an extraordinarily non-progressive decision, a setback for human rights, and most importantly totally unwarranted as a matter of the meaning of the Constitution. That stare decisis should have been held decisive in the denial of the right to life (Casey) but not decisive in the denial of a right to homosexual sodomy (Lawrence, though to be fair O'Connor would have held off from overturning Bowers) does not leave me excited about Justice O'Connor's tenure on the court, at least as measured by the central human rights challenge of our times (yes, even bigger than Darfur, which is very, very big).

As a general comment about her jurisprudence, it will come as no surprise to regular readers of this blog that, whenever (and it was often) Justice O'Connor and Justice Scalia disagreed over whether the Court should prefer "rules" (which she always regarded as "rigid") or "careful balancing of case-by-case facts", I sided with the rigid rules of Scalia. The latter approach, generally framed by its defenders (such as Cass Sunstein) as being a sort of modest jurisprudence, was in fact the opposite. By refusing to announce clear rules and dispense with cases on the basis of clear principles, the muddled moderation that characterized much of O'Connor's jurisprudence amounted to an aggrandizement of the Court's authority, and resulted in uncertainty for parties in a variety of cases. For a court that refuses to increase its caseload despite having four times the clerks it once had, it is not very consoling to hear that the decisions made are "case by case" and "carefully balanced on the facts before the court." They are really not there to spend all day with detailed fact patterns. If that is what they want to do, they should take 8,000 cases a year, rather than 82. Given the unlikelihood of that event, better to announce rules, and better also to stay out of certain areas of national life altogether.

Nevertheless, I am grateful for O'Connor's decision in Bush v. Gore, which as Henry Monaghan noted in his article on the matter for the Columbia Law Review was correctly decided and part of a routine line of cases "second guessing" state supreme court determinations of state law, and for her resignation from the Court when there is a chance that a person who respects the text and history of the Constitution might be appointed in her stead.

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