Ginsburg: Opening Soon on Supreme Court; Qualities of the Next Justice

With Justice Ruth Bader Ginsburg’s veiled hint yesterday of an impending vacancy on the U.S. Supreme Court, speculation about the necessary qualities of the next Justice will now begin in earnest.

By far the most important criterion for any new Justice is a judicial philosophy that embraces a healthy respect for the vital role played by judicial review in guaranteeing liberty and equal justice for all. (Gender will also be a key criterion if the vacancy is created by the retirement of Justice Ginsburg herself - it is unimaginable that the twenty-first century Supreme Court would not count at least one woman among its members.)

Judicial review, the Court’s power to correct the unconstitutional actions of the legislative and executive branches, is precisely how the framers originally envisioned the Court’s role in the constitutional design.

James Madison, for example, arguing in support of passage of the Bill of Rights before the First Congress, said, “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.” Addressing a French correspondent, Thomas Jefferson wrote, “the laws of the land, administered by upright judges, … would protect you from any exercise of power unauthorized by the Constitution of the United States.” And in Federalist 78 Alexander Hamilton commented that “the interpretation of the laws is the proper and peculiar province of the courts…. If there should happen to be an irreconcilable difference between [the Constitution and a legislative act]…, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

In principle, judges and scholars from across the political spectrum agree on these basics. Conservative icon Robert Bork, for example, has written that “there are some things a majority should not do to us no matter how democratically it decides to do them. These are areas properly left to individual freedom…. Society consents to be ruled undemocratically within defined areas by certain enduring principles believed to be stated in, and placed beyond the reach of majorities by, the Constitution.”

In practice, however, conservative ideology has latched onto the idea that the use of "undemocratic" judicial review is “activist” and will almost always constitute inappropriate “legislating from the bench.” (This position is consistently held by a bare minority (four) of the current Supreme Court Justices, which explains the critical importance of the next Justice’s views on the matter.) What this argument ignores, of course, is that the whole point of the Constitution’s scheme of majoritarian government is to protect liberty and equal justice. As amply explained by Madison, Jefferson and Hamilton, the true original intent of the framers was that constitutionally-protected liberty and equal justice are not to be sacrificed to majority will.

When the Court fails to properly exercise its power of judicial review, liberty and equal justice suffer, because there is simply no other institution left to protect individual and minority rights. During World War I, for example, the Court upheld vast legislative prohibitions on speech; and during World War II it refused to curb executive forced-relocation and internment of thousands of innocent Japanese-Americans. America would look quite different today if the Court – largely under the leadership of Chief Justice Earl Warren, whose strong support of judicial review prompted President Dwight Eisenhower to grumble that his 1953 appointment of Warren to the Court was “the biggest damn-fool mistake I ever made” - had not eventually returned to checking the unconstitutional excesses of the democratically-elected executive and legislative branches.

So as President Obama looks at candidates for a Supreme Court vacancy, he should insist on a person whose judicial philosophy includes a strong understanding of the important role judicial review has played throughout American history in vindicating individual rights and ensuring equal justice for all. The U.S. Supreme Court must not shrink from fulfilling its crucial - yes, active - original constitutional role of critically reviewing the actions of the executive and legislative branches and striking them down where necessary.

Bailout; Erratic McCain; Presidential Debate; Sarah Palin Qualifications

What a few weeks. We got a chance to see John McCain at his erratic best, bouncing between saying the fundamentals of the economy are sound then turning around to his panicky reactionism, claiming he's not attending the debate (then he is, then he's not, then he is), saying he needs to rush to Washington to help negotiate the bailout, then blowing up the agreement that was well on its way to being sealed, etc., etc.

In spite of all of that, McCain is alright. He's had major experience in the Senate and has been on the right side of a number of issues during the Bush years (even though he voted with Bush 90% of the time): he worked for campaign finance reform; he spoke out against Alberto Gonzales's ghastly Department of Justice tenure; and most importantly, he spoke out very forcefully against Bush and Cheney on the torture issue - and with his experience as a tortured POW himself, he has massive credibility.

BUT - even if Obama and McCain were dead even, or even if McCain had the slight edge, two factors overwhelmingly favor Obama: (1) for the sake of the individual liberty of ALL Americans, we CAN'T AFFORD any more of the sort of socially conservative Supreme Court justices Bush appointed, and that McCain would try to appoint; and (2) Sarah Palin is simply unqualified to be president.

On the first, Bush appointed two Justices - John Roberts and Joseph Alito - who come from the "command and control" side of the Republican Party. Adding to them the two such Justices already on the Court, Antonin Scalia and Clarence Thomas, and we have close to a majority on the Court who unquestionably favor government power over protection of individual liberty. Individual liberty hangs by a thread - Anthony Kennedy, the fifth conservative on the Court, comes from the libertarian side of the Republican Party and he's the one who's been making the difference in a number of the 5-4 decisions protecting the individual. On the other side, Justice Stevens is in his 80s, and Ruth Bader Ginsburg has had health issues - and G-d forbid if anything happened to either of them or David Souter or Stephen Breyer, the President would have the chance to seriously change the tone of the Supreme Court. We simply can't afford that.

Second, Sarah Palin. Can we now agree that she's unqualified? Take a look at the Katie Couric interview from a few days back. It's embarrassing - and scary. Bob Herbert of the New York Times said it this morning, for the first time I've heard from anyone - for the good of the nation, John McCain should recognize her serious deficiencies and appoint someone else. Sarah Palin is not qualified to lead the country. If John McCain is the "maverick" he keeps claiming to be, he'll set aside personal ambition for clear-eyed reason. Will he do the right thing and nominate someone else? Don't hold your breath.

What If? A Tale of Two Countries, Pakistan and U.S.

Images out of Pakistan the last few days are striking, with lawyers in business suits hurling tear gas shells back at police and then being rounded up and jailed.

General Pervez Musharraf's declaration of emergency rule last Saturday, including his abolishment of a Supreme Court which has been increasingly critical of his positions on human rights and the validity of his own election, sparked this reaction from the bar. As one prominent Islamabad lawyer, Harvard-educated Babar Sattar, says, "How do you function as a lawyer when the law is what the general says it is?"

And how is Musharraf attempting to justify the imposition of martial law? You guessed it - he needs additional power to combat terrorism.

Sound familiar? America is not the only country with leaders who pander to fear in order to consolidate their power and limit individual rights.

The crucial point is that it's against this sort of autocratic tyranny for which constitutions are built. America's independent judiciary has long reined-in the executive and legislature when they have exceeded their bounds.

Surely if the President of the United States were to claim that he can act beyond the scope of limitations placed upon him by Congress and the Constitution the Supreme Court will slap him down rather than allow him to continue on the path to the sort of tyranny we are now seeing in Pakistan....

Or will it? The positions taken by the newest as well as some of the longer serving members of the U.S. Supreme Court on the issue of Executive Power gives one pause.

If we ever need a reminder on why our Constitution mandates a system of checks and balances, and how very much we depend upon the Supreme Court to prevent the executive from accumulating too much power, we need only look to the images of lawyers at the barricades in Pakistan today, where a powerful executive with a military at his command is making a mockery of the Rule of Law.

Does Second Amendment Apply to States?

Answer: Yes.

See my article, "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses" at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=723501, just out in hardcopy with the Missouri Law Review.

When I started thinking about this article a few years back, I was prepared to argue that (1) the second amendment does not protect an "individual right," and (2) the second amendment does not apply to individual states, so they should therefore be allowed to outlaw guns.

This was my liberal wishful thinking, anyway, that government should be able to regulate anything as harmful as guns in our society (homicide rate of 4.3 per 100,000, more than 5 times the next highest rate among industrialized nations (Italy)).

But after looking into the history of the debates, etc., it soon became apparent that the overwhelming weight of evidence supports the contrary position, that (1) the second amendment WAS intended to protect an individual right; and (2) the entire bill of rights - including the second amendment - was affirmatively applied to the states in 1868 through the fourteenth amendment privileges or immunities clause (or, alternatively, through the Supreme Court's unnecessarily-tortured "selective incorporation" doctrine premised on the fourteenth amendment due process clause). And as much as I or anyone else might wish it to be otherwise, we can't simply pick and choose from among the constitutional provisions we like and do not like - if we are to maintain fidelity to the notion of constitutional government, we must give effect to the ENTIRE Constitution. (On this point, see also my letter to the New York Times on March, 19, 2007.)

But, as I say in the article (fn. 5), to say that a right like the second amendment is entitled to constitutional protection is NOT to say the right cannot be meaningfully regulated. As Harvard law professor Laurence Tribe notes, "[measures that] by and large do not seek to ban all firearms, but seek only to prohibit a narrow type of weaponry (such as assault rifles) or to regulate gun ownership by means of waiting periods, registration, mandatory safety devices, or the like ... are plainly constitutional.... Even in colonial time the weaponry of the militia was subject to regulation."

Here's the full abstract to the Missouri Law Review article:

"The second amendment, alternately maligned over the years as the black sheep of the constitutional family and praised as a palladium of the liberties of a republic, should be recognized by the United States Supreme Court to apply to the several States through the Fourteenth Amendment privileges or immunities clause or, alternatively, through the due process clause.
This article suggests that the issue of Second Amendment incorporation presents a useful contemporary mechanism for the Court to revive the long-dormant Fourteenth Amendment privileges or immunities clause. Such judicial recognition of the clause is necessary to respect the Framers’ vision, as inspired by the Declaration of Independence and laid out in the amended Constitution, for a government that would serve, instead of rule, the people. Government would exercise its necessary, limited role, and otherwise leave the people alone, with the Constitution standing ever watchful as guardian to assure that government would not overstep its bounds, as governments are apt to do."

Court Packing (or Shrinking)

Yesterday I commented that "our constitutional regime has an Achilles Heel in the vast power of the Supreme Court - i.e., if we ever get five justices (enough for a majority) who consistently vote in ways that systematically undermine the text and spirit of the Constitution, there's little We the People can do to reverse the decisions of these appointed-for-life Justices."

Jean Edward Smith, John Marshall professor of political science at Marshall University, makes an excellent point in an OpEd in yesterday's New York Times, reminding us of the several times throughout the nation's history when the Court has been "set straight" with the political solution of increasing (or decreasing) its membership.

The size of the Supreme Court is not fixed by the Constitution. It is determined by Congress. As Smith notes, "there is nothing sacrosanct about having nine justices on the Supreme Court. Franklin D. Roosevelt's 1937 chicanery has given court-packing a bad name, but it is a hallowed American political tradition participated in by Republicans and Democrats alike." Specifically, Congress has adjusted the size of the Supreme Court on the following occasions:

-1800: "When the Federalists [and John Adams] were defeated in 1800, the lame-duck Congress reduced the size of the court to five - hoping to deprive President Jefferson of an appointment. The incoming Democratic Congress repealed the Federalist measure (leaving the number at six), and then in 1807 increased the size of the court to seven, giving Jefferson an additional appointment."
-1837: Congress "increased the number to nine, affording the Democrat Andrew Jackson two additional appointments."
-~1862: "During the Civil War, to insure and anti-slavery, pro-Union majority on the bench, the court was increased to 10."
-~1866: "When a Democrat, Andrew Johnson, became president upon Lincoln's death, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments."
-1868: "After Ulysses S. Grant was elected, Congress restored the court to nine. That gave Grant two new appointments.
-1937 (failed attempt): "The most recent attempt to alter the size of the court was by Franklin Roosevelt in 1937. But instead of simply requesting that Congress add an additional justice or two, Roosevelt's convoluted scheme fooled no one and ultimately sank under its own weight."

Smith's point is an important one, in that it explains another mechanism by which We the People, through our elected representatives, may temper a persistently out-of-touch Supreme Court.

Smith concludes, "If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant."

Separation of Powers Showdown

The President's position that his aides are absolutely immune from testifying before Congress, despite congressional subpoenas for information on the abrupt firings of federal prosecutors, sets up a separation-of-powers showdown that will be resolved ultimately by the Supreme Court - which these days is an increasingly scary proposition.

As reported by MSNBC, "the White House has said that Chief of Staff Josh Bolten and former legal counselor Harriet Miers, among other top advisers to President Bush, are absolutely immune from subpoenas because their documents and testimony are protected by executive privilege." In response, House Democrats today are preparing contempt of Congress citations against Bolten and Miers.

This is just the latest in George W. Bush's assault on the Constitution. The Supreme Court, IF it adheres to precedent on this issue, will hold that executive privilege does not extend to allow aides to avoid responding to congressional subpoena. This would be the correct decision, in that it recognizes the proper separation of powers among the executive and legislative branches envisioned by the framers of the Constitution.

That's a big "if," though, since the Roberts Court has demonstrated in its recently-completed 2006-07 term that it is perfectly willing to discard precedent when it might have more cautiously decided the cases on other grounds. And we're perilously close - if we're not there already - to having a majority of the Court ratify the President's extreme views of Executive power. Even a case that seemed as open-and-shut as the 2006 Hamdan case, holding that the executive lacked the power to unilaterally limit the due process rights of enemy combatants imprisoned at Guantanamo Bay, was only 5-3 (actually, 5-4, since Chief Justice Roberts recused himself, having decided the case below in favor of the President while on the DC Federal Court of Appeals).

I've said it before, but this is yet another illustration of the notion that our constitutional regime has an Achilles Heel in the vast power of the Supreme Court - i.e., if we ever get five justices (enough for a majority) who consistently vote in ways that systematically undermine the text and spirit of the Constitution, there's little We the People can do to reverse the decisions of these appointed-for-life Justices. Oh, technically we can amend the Constitution or argue that Congress will impeach the Justices, but both of these alternatives are so remote as to be virtually non-existent.

Stay tuned for the future of our constitutional democracy.

Old (Sept 06): Preview of Supreme Court's 2006-07 Term

The U.S. Supreme Court’s 2006-2007 Term

By: Michael Anthony Lawrence (Professor, Michigan State University College of Law)

With the U.S. Supreme Court’s new composition now established with the addition last year of two new members, Chief Justice John Roberts and Associate Justice Samuel Alito, the upcoming 2006-07 Term will offer glimpses into how the Roberts Court will begin to position itself on a number of key issues.
In contrast to a year ago, when the Court heard oral arguments during the first week on one of the most important cases of the entire term, the constitutionality of Oregon’s “Death With Dignity Act,” there are no similarly high-profile cases in the early weeks this year. Things begin to heat up toward the end of October and early November, though.
In Philip Morris USA v. Williams, to be argued on October 31, the Court will consider whether the sheer reprehensibility of a defendant’s action can support the award of punitive damages that would otherwise exceed constitutional standards under the due process clause. In this case, the Oregon Supreme Court upheld a jury’s punitive damages award of $79 million to the wife of a long-time smoker who died of lung cancer, reasoning that the punishment was justified by the “extreme and outrageous circumstances” of Philip Morris’s “massive, continuous, near half-century scheme to defraud the plaintiff and many others.”
Humble prediction: Look for the Court to strike down the punitive damage award in Philip Morris USA. In two other cases within the last ten years, the Court has struck down large punitive damages awards in state courts on grounds that the awards deprived the defendants of their property without due process of law, in effect because the defendants could not have been on notice that their behavior, however bad, would result in such high damages in a single case. In the most recent case, State Farm Mutual Insurance Co. v. Campbell in 2003, the Court struck down a $145 million punitive damage award against State Farm, even though according to the Court the company had repeatedly falsified and withheld evidence in claim files, systematically engaged in tactics such as “unjustly attacking the character, reputation and credibility of claimants,” and deliberately crafted policies “to prey upon … the weakest of the herd - the elderly, the poor, and other consumers who are least knowledgeable about their rights and thus most vulnerable to trickery or deceit….” (Like a good neighbor, indeed.)

In another couple important cases, the Court will hear arguments on November 8 in Gonzales v. Carhart and Gonzales v. Planned Parenthood regarding the constitutionality of Congress’s Partial-Birth Abortion Ban Act of 2003. The lower federal courts of appeals struck down the Act in both of these cases, holding that the statute, by failing to include an exception to preserve the health of the mother, violated the constitutional standards previously set out by the Court in Roe v. Wade, Planned Parenthood of Southeastern Pennsylvania v. Casey, and most recently, Stenberg v. Carhart in 2000.

Humble prediction: The Court will affirm the lower courts by a 5-4 vote and properly strike down the Partial-Birth Abortion Ban Act. This is a very close call, though, and the case could easily swing the other way, depending on where Chief Justice Roberts comes down. The Court struck down a substantially similar state law by a 5-4 margin six years ago in Stenberg, so it would seem easy to predict a similar fate for this Act were it not for the uncertainty created with the addition of the two new Justices just last year. Assuming the seven remaining Justices hold their votes from Stenberg, Justice Alito very likely will replace the late Chief Justice Rehnquist’s dissenting vote; and there is some reason to believe that Chief Justice Roberts, based on statements he made during his confirmation hearings, will replace Justice O’Connor’s majority vote. If he does not, however, and instead joins the Stenberg dissenters, these cases would represent a substantial step in the long-term conservative strategy, as laid out by Justice Alito in a mid-1980s memorandum, to attack Roe v. Wade with a “death by a thousand cuts” strategy rather than seeking an outright reversal.

Finally, later in November or early December the Court will hear arguments in Meredith v. Jefferson County Board of Education whether a public school district in Louisville, Kentucky violates the Equal Protection Clause with its requirement that all schools within the district seek a black student enrollment of not less than 15% and no more than 50%.

This case is intriguing, because public schools in Louisville, like most public schools throughout the South, were historically virtually entirely segregated until the Court ordered in Brown v. Board of Education in 1954 that all public schools be desegregated.
Thereafter, the school district in Louisville was supervised for decades by a federal district court decree in its desegregation efforts. Fast-forward now to 2006, where, ironically, the district’s efforts to maintain desegregated schools are now themselves being challenged as violating equal protection.

Humble prediction. The Court will uphold the district’s plan in Meredith. The outcome will hinge upon whether the Court believes the means adopted by the district are sufficiently narrowly-tailored to meet a compelling government interest. Because the Court has recently held in Grutter v. Bollinger and Gratz v. Bollinger in 2003 that diversity in the educational environment is a compelling government interest, and because the 15-50% target range is likely flexible enough not to constitute a forbidden “quota,” the Court likely will uphold the plan.